Deregulation in the Age of COVID-19

Guess what? There’s still an agenda in Washington D.C. The government is not shut down. Neither is the Presidential Pen.

While we’ve been focusing on flattening the curve, deregulation is underway.

I got my information directly from the Brookings Institute. There’s much more information there if you want it; plus a lot of links here for you to explore.

I try to keep my opinions to a minimum, so you can draw your own conclusion. Still, I offer this: Holy Smokes.

Come on with me into the weeds. Here’s what’s gone into effect since the beginning of the year.

skeeze / Pixabay
  • Temporary COVID-19 Suspension of EPA Enforcement (EPA) See Federal Register.
    • Announcement from the EPA: A temporary policy suspending enforcement of environmental regulations in response to COVID-19.
    • On Thursday, March 26 2020, the Environmental Protection Agency announced a temporary enforcement policy relaxing the legal enforcement of environmental rules.
    • This allows companies to determine for themselves if the pandemic renders them unable to comply with regulations such as routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification.
    • To be eligible for the enforcement policy, companies need to document why they were unable to comply with the regulation as a result of the pandemic. This policy does not apply to any criminal violations or imports and is effective retroactively starting March 13, 2020 until further notice.
  • Federal Implementation Plan for managing air emissions (EPA) See Federal Register.
    • A rule streamlining the pre-construction approval process for certain sources in Indian Country.
    • The Minor New Source Review (NSR) Program is a federal program for pollutants from stationary sources that do not require Prevention of Significant Deterioration (PSD) or nonattainment NSR permits.
    • A “true minor source” is a source that emits NSR pollutants in amounts less than its major source thresholds, but equal to or greater than the minor NSR thresholds.
    • On July 15, 2019, the Environmental Protection Agency (EPA) proposed to amend the Federal NSR program in Indian Country and the Federal Implementation Plan(FIP) for true minor sources in Indian Country for Oil and Natural Gas Production (National O&NG FIP).
    • Currently, sources complying with the National O&NG FIP must submit a Part 1 Form, containing specified information, at least 30 days prior to beginning construction. Additionally, sources must also fulfil requirements concerning potential impacts to protected sources, which include an assessment of potential impacts requiring approval by EPA. This must occur prior to the Part 1 form submission, which might cause delays in the process.
    • The proposed rule amends these requirements, allowing for concurrent submission of these requirements, rather than a sequential one.
    • EPA seeks to streamline the pre-construction process through this rule and it believes that this action will “ not have potential disproportionately high and adverse human health or environmental effects on minority, low-income, or indigenous populations.” This rule is effective May 18, 2020. 
  • Revisions to Refrigerant Management (EPA) See Federal Register
    • A rule revising requirements for the appliance maintenance and leak repair provisions under the Clean Air Act
    • The Clean Air Act prohibits knowingly venting or releasing ozone-depleting and substitute refrigerants in the course of maintaining, servicing, repairing, or disposing of appliances or industrial process refrigeration.
    • In 2016, the EPA amended the regulatory refrigerant management requirements and extended requirements that previously applied only to refrigerants containing an ozone-depleting substance to substitute refrigerants that are subject to the venting prohibition (i.e., those that have not been exempted from that prohibition) such as hydrofluorocarbons.
    • Based on changes to the legal interpretation that supported that 2016 rule, this action revises some of those requirements—specifically, the appliance maintenance and leak repair provisions—so they apply only to equipment using refrigerant containing an ozone-depleting substance. This final rule is considered an E.O. 13771 deregulatory action and is effective April 10, 2020.
  • Joint Employer Status: National Labor Relations Act (NLRB)
    • A rule defining joint employer standards under the National Labor Relations Act.
    • Joint-employer standards determine whether two employers are joint employers of a group of employees under the National Labor Relations Act (NLRA).
    • This influences the responsibility and liability that these joint-employers hold towards the employees under labor practices and worker protection laws.
    • Examples of cases where these standards hold relevance are staffing agencies and subcontractors that contract workers to other firms and franchisor-franchisee relationships. These standards have significant consequences for businesses, unions and employees. 
    • The National Labor Relations Board (NLRB) has determined the standards applicable for a joint-employer status through various decisions passed over time.
    • Due to decisions taken in 1984, the joint-employer status definition was narrowed, such that indirect control was typically insufficient to determine that one company was the joint employer of another business’ workers.
    • This definition was overturned with NLRB’s Browning-Ferris Industries (BFI) decision in August 2015, which expanded the joint-employer status to also include those employers that exercised indirect control over an employee’s terms of employment to be considered as ‘joint-employers’.
    • The BFI decision was then overruled by NLRB’s Hy-Brand decision in December 2017, which returned to the pre-BFI narrow joint-employer standards. This Hy-Brand decision was then vacated in February 2018, reinstating the BFI standard. 
    • On September 14, 2018, NLRB promulgated a notice of proposed rulemaking establishing the joint-employer standards. This rule narrows the standards, returning them back to pre-BFI standards.
    • Under this proposal, an employer must “possess and actually exercise direct and immediate control over the terms and conditions of employment” to be considered a ‘joint-employer’.
    • This will make it easier for companies to evade the joint-employer status. On February 26, 2020, NLRB finalized this rule with minor changes and clarifications. The rule goes into effect on April 27, 2020. 
  • Definition of Biological Products (FDA) See Federal Register
    • A rule clarifying the definition of “biological products” to reduce uncertainty.
    • Biological products are regulated by the Food and Drug Administration (FDA), and are used to diagnose, prevent, treat, and cure diseases and medical conditions.
    • They include a wide range of products such as vaccines, blood and blood components, allergenics, somatic cells, gene therapy, tissues, and recombinant therapeutic proteins.
    • On February 21, 2020, FDA issued a final rule amending the definition of “biological product'” in line with changes made by the Biologics Price Competition and Innovation Act of 2009 (BPCI Act) and to provide its interpretation of the term “protein.” The FDA now interprets “protein” to mean any alpha amino acid polymer with a specific, defined sequence that is greater than 40 amino acids in size.
    • This rule is expected to reduce uncertainty over whether certain products are regulated as drugs or biological products and generate net costs-savings of $170,000. This rule is considered an E.O. 13771 deregulatory action and goes into effect on March 23, 2020.
  • Trade Adjustment and Public Works Regulations (EDA, DoC) See Federal Register.
    • A rule updating TAAF and PWEDA program regulations.
    • The Economic Development Administration (EDA) issued a final rule on February 14, 2020 to update the agency’s regulations implementing the Trade Adjustment Assistance for Firms (TAAF) provisions of the Trade Act of 1974 and the Public Works and Economic Development Act of 1965 (PWEDA).
    • The changes to the TAAF program regulations clarify the process for import-impacted U.S. manufacturing firms, oil and natural gas production firms, and service firms to obtain technical assistance—identified in the Trade Act as “adjustment assistance”—through the TAAF program, reorganize the regulations to make them easier to read and understand, incorporate best practices, and bring the regulations into closer alignment with the program’s statutory requirements.
    • This rule is considered an E.O. 13771 deregulatory action and is effective March 16, 2020.
  • Energy Conservation Standards (DoE) See Federal Register
    • A rule updating DoE’s method of rulemaking for energy conservation standards.
    • The U.S. Department of Energy (DOE) is updating and modernizing aspects of its current rulemaking method for considering new or revised energy conservation standards for consumer products and certain types of industrial equipment.
    • This final rule clarifies the process DOE will follow with respect to its application to these items, makes the specified rulemaking procedures binding on DOE, and revises certain provisions to bring consistency with existing statutory requirements.
    • Other changes include expanding early opportunities for public input on the Appliance Program’s priority setting and rulemaking activities, setting a significant energy savings threshold for updating standards, establishing a window between test procedure final rules and standards proposals, and delineating procedures for rulemaking under the separate direct final rule and negotiated rulemaking authorities.
    • This rule is effective April 14, 2020 and is considered an EO 13771 deregulatory action.
  • Utah Federal Lands (DoI) See Bureau of Land Management
    • Proclamation by President Trump.
    • A plan that permits mining, drilling, and grazing on previously protected national monuments in Utah.
    • In December 2017, President Trump shrank two national monuments in Utah, the Bear Ears National Monument and Grand Staircase Escalante, by 85 percent and 46 percent respectively. These monuments were of historical and cultural significance to many communities, especially Native American nations and scientists.
    • Simultaneously, they also harbored valuable coal, oil, gas, and grazing lands.
    • According to New York Times, together, these moves were the largest rollback of public lands protection in U.S. history. On 6th February 2020, the Department of Interior published blueprints that finalized plans to allow mining, drilling, and grazing on these previously protected lands.
  • Joint Employer Status: Fair Labor Standards (DoL) See Federal Register
    • A rule defining joint employer standards under the Fair Labor Standards Act.
    • Under the Fair Labor Standards Act (FLSA), employers deemed to be “joint employers” of an employee are jointly and severally liable for all of the employee’s wages.
    • Current rules stipulate that two or more employers acting independently of each other may be deemed joint employers if they are “not completely disassociated” with respect to the employment of an employee, who performs work for more than one employer. These rules have not been meaningfully revised since 1958. 
    • On April 9, the Department of Labor (DoL) proposed a rule establishing a four-part test to determine whether an employer is deemed to have joint employer status under FLSA, essentially narrowing the definition for “joint employer status”.
    • The test, which was largely derived from Bonnette v. California Health and Welfare Agency, would assess whether the employer has the power to 1) hire or fire the employee, 2) supervise and control the employee’s work schedule or conditions of employment, 3) determine the employee’s rate and method of payment, and 4) maintain the employee’s employment records. 
    • The DoL intends that the rule will clarify the interpretation of joint employer status under FLSA, and that it will reduce litigation and compliance costs and result in greater uniformity among court decisions.
    • On January 16, 2020 DoL issued a final rule promulgating these revisions. These actions fall in line with a separate proposal by the National Labor Relations Board in narrowing the joint employer standards under the National Labor Relations Act, which outlines the legal framework for labor unions and management relations. This final rule is an E.O. 13771 deregulatory actions and is effective March 16, 2020. 
  • Medicare Delay of Inclusion for U.S. Territories Health
    Children, Youth, and Families (CMS, HHS)
    See Federal Register
    • A rule further delaying the inclusion of US territories in the Medicare definitions of “States” and United States.”
    • As a part of the Covered Outpatient Drug final rule, the Centers for Medicare & Medicaid Services (CMS) amended the regulatory definitions of “States” and “United States” to include the U.S. territories (American Samoa, the Northern Mariana Islands, Guam, Puerto Rico, and the U.S. Virgin Islands) beginning April 1, 2017.
    • Subsequently, on November 15, 2016 CMS published an interim final rule with comment period (IFC) delaying the inclusion of the U.S. territories in the regulatory definitions of “States” and “United States.” until beginning April 1, 2020.
    • This IFC further delays the inclusion of the territories in the definitions of “States” and “United States” until April 1, 2022.
    • These regulations are effective starting January 24, 2020, and this rule’s designation under E.O. 13771 is pending and will be informed by public comments.
  • Railroad Safety Training (FRA, DoT)See Federal Register
    • A rule delaying the implimentation of minimum training standards for railroad employees.
    • In response to a petition for rulemaking, the Federal Railroad Administration (FRA) is amending its regulation on Training, Qualification, and Oversight for Safety-Related Railroad Employees.
    • On November 7, 2014, FRA published a final rule establishing a minimum training standard for each category of safety-related railroad employees and required railroad carriers, contactors, and subcontractors to submit training programs to FRA for approval.
    • On January 2, 2020, FRA promulgated a final rule delaying this regulation’s implementation dates for all contractors, and those Class II and III railroads that are not intercity or commuter passenger railroads with 400,000 total employee work hours annually or more. This regulation is effective December 30, 2019 and is considered a deregulatory action under E.O. 13771.

I hope you don’t mind a brief interlude of “other issues” to think about. Let me know if you want more (or less.)