Biden Sworn In, Followed By Regulatory Flurry
Last Wednesday, following the swearing in of President Biden and Vice President Harris, President Biden issued a flurry of Executive Orders (EOs). The EOs covered regulatory reviews, immigration, climate change, COVID-19, Buy American and numerous other issues. Biden has also already taken quick steps to mold the different regulatory agencies to his liking, particularly the National Labor Relations Board (NLRB), by firing both the NLRB general counsel and deputy general counsel, and appointing current Democrat NLRB Member Lauren McFarren as chairman of the Board. This is in addition to the army of other appointees tapped at all the agencies since Biden’s Inauguration.
As is customary and anticipated, President Biden started his EO activity with a regulatory freeze on all regulatory items from the Trump Administration that had not been finalized or taken effect yet. Over the next 60 days or so, the different regulatory agencies and their Biden political appointees will make determinations on how to proceed; whether they require a withdraw, redrafting or simply just to be shelved.
In addition to freezing pending regulations, Biden also signed an order to “modernize” regulatory reviews. Traditionally, the Office of Information and Regulatory Affairs (OIRA) in the White House Office of Management and Budget (OMB) has functioned as the gatekeeper of regulations and conducted cost-benefit analyses before they're finalized. Under Biden’s EO, OIRA’s cost-benefit analysis also needs to now take into consideration “suggestions on how the regulatory review process can promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity and the interests of future generations.” This marks a sea change in how regulations will be considered before finalization and the new level of scrutiny they’ll endure. Also on the regulatory front, Biden executed an EO to roll back Trump era regulatory reviews, including guidance policies and regulatory reform directives.
While these EOs were not a surprise, what is currently unknown is how far the new administration will attempt to go in the next couple of weeks to turn around regulations from the previous administration. Biden’s EPA has already asked the Department of Justice to halt its defense of any Trump regulations currently in litigation. As well, we have yet to see if Biden and Congress will use the Congressional Review Act (CRA) to withdraw finalized Trump rules that were issued in the last 60 legislative days. Any rules that were approved by the Trump Administration since about mid-August 2020 may be fair game for Congress to overturn using the CRA. Many of the regulations the agencies and Congress will examine have direct impacts on the ready mixed concrete industry. NRMCA is currently drafting communications and responses to the different regulatory agencies on a host of regulations.
Furthermore, front and center with the EOs President Biden issued were those addressing COVID-19. Specifically, Biden has now mandated masks be worn on all federal property and lands as well as during domestic and international travel. However, more directly concerning the ready mixed concrete industry was Biden’s anticipated call to the agencies to examine how to further protect workers from COVID-19 and whether an Emergency Temporary Standard (ETS) is required to address COVID-19 in the workplace. This action, required of multiple agencies, will be conducted in short order with any ETS recommendation required no later than March 15. The EO also directs the Department of Labor to review enforcement activities and plans as they relate to COVID-19 and to coordinate with “labor unions, community organizations, and industries, and place a special emphasis on communities hit hardest by the pandemic.”
As the Biden Administration’s regulatory focus continues to come into view, NRMCA remains organized and prepared to expediently and diligently address these regulatory changes and advocate for beneficial industry outcomes.