Regulation Rewind

While growth of the executive branch of government is nothing new, the Obama Administration has increasingly bypassed Congress and governed through the use of new rules and executive orders. 

To fight back against this overreach of the federal government, I launched a Regulation Rewind in 2014.  Through this initiative and with your help, I have identified unnecessary and overly burdensome regulations which hurt economic growth, limit opportunities for rural Americans, are inconsistent with the law, or are unfair.  Due to overwhelming interest and continuing need, I am proud to continue Regulation Rewind through 2016.  If you have an example of overreaching federal regulations you would like me to address, please contact me here.

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Regulation Rewind 2016:

OSHA Regulates Without Following Rules

Anhydrous ammonia is the most common source of nitrogen for farmers. In July 2015, the Occupational Safety and Health Administration (OSHA) issued a memo redefining regulations on anhydrous ammonia, forcing retailers to comply with the Process Safety Management of Highly Hazardous Chemicals (PSM) standard from which they were previously exempt.  

Status:  In October 2015, I joined 38 colleagues in sending a letter to Labor Secretary Thomas Perez to ask the agency to rescind the memo and utilize a formal rulemaking process to allow those impacted by any potential changes to be heard. In December, Congress defunded the memo for FY 2016. In March 2016, I joined 40 colleagues in asking the Appropriations Committee to include language defunding this regulation in the FY 2017 Labor-HHS Appropriations bill. On May 12, I introduced H.R. 5213, the Fertilizer Access and Responsible Management (FARM) Act, to block OSHA's interpretive memorandum. Finally, in late September, the D.C. Circuit Court of Appeals ruled OSHA acted illegally by not giving retailers and producers a chance to submit comments, requiring the agency to forego its interpretive memorandum.

Department of Labor Discourages Employer/Employee Flexibility

On May 18, 2016, the Department of Labor issued their final rule regulating overtime pay.  The rule, which is scheduled to take effect Dec. 1, 2016, raises the salary threshold under which all salaried professional, administrative and executive employees qualify for overtime pay from $23,660 to $47,476 per year and indexes it to inflation every three years.  This threatens to reduce employees' flexibility and cause employers to cut employees’ hours, move some employees from salaried to hourly status, or cut wages in order to comply. 

Status:  In March, I joined more than 100 of my colleagues in asking the Appropriations Committee to prohibit the use of funds to implement the rule.  In April, I cosponsored a bill with 190 colleagues which would require DOL to nullify the current rule, conduct a complete economic analysis on how the rule would affect employers, and to minimize the impact on employers in any subsequent rule. In September, the House passed H.R. 6094 to delay implementation of the Department of Labor’s (DOL) overtime rule for six months.

Keeping Meat on the Menu for our Troops

Ideologically-motivated activists continue to push government agencies, including the military, to reduce meat consumption despite scientific evidence showing animal protein is the only source for certain nutrients not available in a plant-only diet.  For example, the U.S. Coast Guard Academy cut meat consumption among cadets by 10 percent over the last three years.  To ensure these efforts do not spread to other branches of the military, I offered an amendment to the Fiscal Year 2017 Department of Defense Appropriations Bill, H.R. 5293, to prohibit efforts to force a vegetarian diet on our troops.

Status:  My amendment and the bill passed the House of Representatives on June 16, 2016.  H.R. 5293 awaits further action in the Senate.

Bringing Accountability to Department of Veterans’ Affairs

In 2014, it was widely reported at least 40 veterans had died while awaiting care from the Department of Veterans Affairs (VA).  The severe mismanagement of the VA was due in part to the strict adherence to civil service law and the difficulties involved with making necessary staffing and organizational changes.  Because these personnel issues are ongoing, I cosponsored H.R. 5620, the VA Accountability First and Appeals Modernization Act, which makes it easier to remove VA employees based on poor performance or misconduct and reforms the process of handling whistleblower cases at the VA.

Status:  H.R. 5620 passed the House of Representatives on September 14, 2016.

Ensuring Access to Hospice Care in Rural Areas

Medicare’s Hospice benefit provides in-home, palliative end of life care for beneficiaries diagnosed as having six months or fewer to live.  As part of the benefit, which is paid as a bundled service to the hospice providers, the patient may also choose to continue to see his or her own physician.  However, because Federally Qualified Health Centers and Rural Health Clinics are subject to a separate payment structure, physicians employed by them are not eligible to serve hospice patients.  To address this unnecessary regulation, I am an original cosponsor of H.R. 5799, the Rural Access to Hospice Act.

Status:  H.R. 5799 has been referred to the Committee on Ways and Means, on which I serve.

Defending Second Amendment Rights from Bureaucratic Errors

President Obama continues to pursue executive actions to limit the Second Amendment rights of law-abiding Americans.  The FBI announced in January it had stopped processing appeals for individuals who were inaccurately denied the right to own a firearm by the National Instant Criminal Background Check System (NICS).  In response, I cosponsored H.R. 4980, the Firearm Due Process Protection Act, which requires action on NICS appeals within 60 days and requires the FBI to report to Congress annually on NICS appeals statistics.

Status:  H.R. 4980 has been referred to the House Judiciary Committee.

Providing Regulatory Relief for Small Gunsmiths

On July 22, 2016, the Department of State issued a guidance which would require small gunsmiths to register under the International Traffic in Arms Control Regulations (ITAR). In order to register, these gunsmiths would have to pay an annual fee of $2,250. Since many gunsmiths are part-time hobbyists, who work to improve the accuracy of their own and their friends’ firearms for hunting and sport shooting, the $2,250 fee is enough to force them out of business.   

Status: ITAR is administered by the Department of State so our government can rightly keep track of who is manufacturing and exporting military-grade weapons. However, the small gunsmiths caught up in this new guidance are not manufacturing military-grade weapons and therefore should not be subject to ITAR. For this reason, I joined 116 of my colleagues in sending a letter to Secretary Kerry requesting the guidance be immediately rescinded. I also am an original cosponsor of the Export Control Reform Act (H.R. 6176) which would transfer regulatory responsibility for non-military-grade firearms from the Department of State to the Commerce Department, to be regulated as commercial businesses.

Bringing Flexibility to Indian Health Service

Due to ongoing safety concerns, the Centers for Medicare and Medicaid Services (CMS) was forced to shut down various facilities at the Indian Health Service (IHS) hospital in Rosebud, South Dakota, including the emergency room.  Because of this closure, patients have been rerouted to the next closest hospital, including many to Cherry County Hospital in Valentine.  Such a solution creates hardships both for patients and their families, and for small rural hospitals doing their best to serve an expanded patient population.

Status:  I continue to monitor and work with my colleagues to address issues at Rosebud.  In addition, I am an original cosponsor of H.R. 5406 to lift regulations on IHS and provide them with greater flexibility to better meet the needs of their patients.  H.R. 5406 passed the Ways and Means Committee on September 21, 2016.  It awaits additional action in the Committee on Natural Resources before it can be considered by the full House.

Defending Rural Airports and Passengers from Pilot Regulations

In response to the Colgan Air crash outside Buffalo, NY, in February 2009, the Federal Aviation Administration (FAA) began enforcing new hours of service requirements for licensing commercial airline captains and first officers, despite the fact both pilots in the Colgan Air crash had already complied with the stricter limits.  Because of these requirements, many regional airlines supporting smaller airports have struggled to staff flights, leading to numerous cancellations.  In turn, these cancellations meant many airports which had previously exceeded the 10,000 annual enplanements necessary to qualify for full Airport Improvement Program (AIP) funding have now fallen below this threshold.  In response, I introduced H.R. 853, the Small Airport Regulation Relief Act, to allow airports to temporarily use previous enplanement numbers for AIP purposes while adjusting to the pilot regulations.

Status:  My AIP language was included in the FAA Extension, Safety, and Security Act of 2016 (H.R. 636), which was signed into law on July 15, 2016.

Giving Consumers More Choice at the Fuel Pump

Fuel volatility limits by the EPA currently inhibit E15 fuel sales during the summer months, when demand is highest.  Ethanol, when blended with gasoline to create E15, raises the volatility level of the fuel above the allowable limit set by the EPA.  In order to conform to this regulation, retailers would have to obtain a special low-volatility blend stock from refiners, who are often unable to provide this fuel.  In 1990, the EPA recognized the burden these limits placed on producers and retailers, and granted all ethanol blends 10 percent and below a waiver from the volatility limits, thereby allowing E10 the opportunity to compete in the marketplace.  At the time, E15 was not yet a viable fuel source.  However, 26 years later, more than 80 percent of vehicles on the road are approved for E15.  I have introduced H.R. 1736 to extend the existing waiver from volatility limits available for E10 to all blends of ethanol.  I have also sent a letter to the Appropriations Committee requesting the Fiscal Year 2017 spending bill include similar language.

Status:  H.R. 1736 has been referred to the Committee on Energy and Commerce.

Standing Up for Workers and Employers

Under the National Labor Relations Act, labor union bargaining units may only include direct employees of an employer in bargaining situations.  However, in August 2015, the National Labor Relations Board ruled a franchisor which sells naming and promotional rights, and sometimes other supplies to an franchisee which is the direct employer, may be considered the employer for purposes of forming a bargaining unit.  This ruling subjects franchisors to negotiations with those they do not directly employ and may subject employees to a broad bargaining unit with disparate interests they do not want to join.  Along with 72 colleagues, I asked the Appropriations Committee to defund enforcement of this ruling in FY 2017 appropriations.

Status:  The ruling remains under consideration in federal courts.

EPA Goes After Motorsports

In June 2015, the EPA proposed Phase 2 medium- and heavy-duty greenhouse gas standards in another attempt to regulate carbon emissions – even though Congress has never passed legislation authorizing the agency to regulate carbon emissions. This proposal stated, “Certified motor vehicles and motor vehicle engines and their emission control devices must remain in their certified configuration even if they are used solely for competition or if they became non-road vehicles or engines.” In effect, this language would make it illegal for an individual to convert his or her street car into a race car. Not only is this an attack on personal freedom, it would also cripple a vibrant aftermarket auto parts industry.

Status:  I cosponsored the Recognizing the Protection of Motorsports Act (H.R. 4715) to permanently exclude automobiles used only in competition from the Clean Air Act Amendments of 1990 (Public Law 101–549). H.R. 4715 also states the EPA has exceeded its authority by attempting to regulate these vehicles while they did not have the authority to do so. After facing opposition by the public and Congress, the EPA removed the language from their proposal.

Department of Labor Attempts to Regulate Financial Advice

Over several years, the U.S. Department of Labor (DOL) has attempted to use their authority over certain pension and retirement plans to change the rules for how investment advisors nationwide provide advice to clients.  The most significant change DOL has proposed would require the vast majority of advisors to begin charging a percentage of assets managed fee to investors, no matter how small, fundamentally changing the marketplace and excluding small investors from savings opportunities. 

Status:  I have joined in sending several letters to DOL raising concerns about this proposal and supported moving legislation through the Ways and Means Committee which would block the proposal (H.R. 4294) and provide alternative methods of ensuring provided financial advice was done legally and ethically.  Despite massive public opposition, DOL finalized their proposal on April 6, 2016.

Calling for End to Duplicative Catfish Inspection Program

The U.S. Department of Agriculture (USDA) currently inspects meat, poultry, and eggs while the U.S. Food and Drug Administration (FDA) inspects all other foods, including seafood.  The 2008 Farm Bill Conference Report added catfish to USDA’s jurisdiction without prior debate.  Under this program, USDA would inspect catfish and FDA would inspect all other seafood, making every U.S. facility processing catfish and other seafood subject to regulation by both USDA and FDA.  In February 2013, the Government Accountability Office (GAO) reported the catfish inspection program is at high risk for waste, fraud, and abuse and recommended its repeal.  Because foreign meat products under USDA’s jurisdiction are required to establish equivalency with the USDA, this program could also act as a trade barrier, violating U.S. trade obligations and possibly resulting in retaliation from U.S. trading partners.  I cosigned a bipartisan letter, along with 169 of my colleagues, to House leadership requesting the resolution of disapproval (S.J. Res 28) to repeal the USDA catfish inspection program be brought to the House floor for a vote.

Status:  S.J. Res 28 awaits action in the House.

Fighting Unsound Dairy Nutrition Guidance

In January, the World Health Organization (WHO) fast-tracked guidance entitled “Ending Inappropriate Marketing of Foods for Infants and Young Children” which sought a ban on the promotion and marketing of milk products consumed by children up to age 3, despite ample evidence of the nutritional benefits of dairy for young children.  I joined with 15 colleagues asking Health and Human Services Secretary Burwell to insist the WHO engage in a consultative process, including input from member states.

Status:  The WHO proposal remains in draft form.  No changes to the process for consideration have been announced.

Regulation Rewind 2015:

Ensuring Trade Agreements Do Not Expand Regulations

While trade agreements can provide increased export opportunities by leveling the playing field for Nebraska producers and manufacturers, trade agreement negotiations could also provide an opportunity for the administration to negotiate trade objectives which place new regulatory burdens on Americans. As part of the Trade Facilitation and Trade Enforcement Act (H.R. 644), the Ways and Means Committee, on which I serve, included language to prohibit the President from negotiating new regulations on greenhouse gasses or guns as part of trade agreements.

Status:  A final version of H.R. 644 passed the House and Senate and was signed into law by the President (Public Law 114-125).

Prevent Backdoor Challenge to Second Amendment

The Bureau of Alcohol, Tobacco, Firearms, and Explosives proposed banning commonly-used M855 ammunition by removing its statutory exemption from the definition of armor-piercing ammunition.  I wrote to ATF director B. Todd Jones opposing this proposal.

Status:  In response to massive public and congressional opposition, ATF withdrew the proposal.

Continued Challenges for Rural Hospitals

Although Congress successfully blocked physician supervision regulations in 2014, rural hospitals face continued regulatory challenges in the coming years.  For that reason I reintroduced my legislation to repeal regulations requiring doctors certify patients won’t be admitted to critical access hospitals for more than 96 hours (H.R. 169) and blocking onerous on-site physician supervision requirements while requiring a federal study of the issue (H.R. 170).

Status:  Both bills have been referred to the Committee on Ways and Means, on which I serve.  On July 28, 2015, the committee held a hearing on H.R. 169.  A Senate bill to block physician supervision requirements for 2015 passed the House and Senate and was signed into law by the President (Public Law 114-112).

President Unilaterally Changes Immigration Law

In November 2014, despite numerous previous assertions he didn’t have authority to do so, President Obama announced he was taking unilateral action to provide amnesty for 3.9 million persons illegally in the United States.  Doing so violates the rule of law and ignores our constitutional system of checks and balances.

Status:  Attorneys general from 26 states have sued the administration over the President’s actions, and the action was stayed by a U.S. District Court in Texas.  I signed a Congressional amicus brief in support of the plaintiffs at the district level.  On March 17, 2016, the House passed a resolution (H.Res. 639) authorizing the Speaker to represent the House in an amicus curiae when the case is heard in the U.S. Supreme Court.

EPA’s Extralegal Expansion of Authority

While the House successfully blocked portions of the EPA’s disastrous effort to expand its authority under Waters of the United States rules to non-navigable waters in 2014, the agency pushed forward with a finalized rule, despite public opposition.  For this reason, I introduced legislation to overturn the rule using the Congressional Review Act (H.J.Res 59).

Status:  The Senate companion to my resolution (S.J. Res. 22) passed in November and was approved by the House in January.  President Obama vetoed the resolution, and the Senate failed to get a two-thirds majority to override the veto.

Second Amendment Rights of Social Security Beneficiaries

Under its Representative Payee program, the Social Security Administration (SSA) assists beneficiaries unable to manage their own finances with finding a designee to assist with managing their accounts – often a family member or friend.  Assigning a representative payee to manage one’s finances does not mean a person is violent or dangerous, or should lose their constitutional rights.  In July, after the Los Angeles Times reported the Obama administration planned to report all 4.2 million Social Security beneficiaries with representative payees to the National Instant Criminal Background Check System, which would prevent them from exercising their second amendment rights.  I joined my colleagues on the Ways & Means Committee in writing to Acting SSA Commissioner Carolyn Colvin opposing this move.

Status: The President listed this proposal in his January 2016 executive actions, but more information has not yet been released by SSA.

Self-Defense for Military Personnel

The terror attack on military recruiting stations in Tennessee again brought to light a serious problem – current Department of Defense regulations prohibit base commanders from allowing service members to carry personal firearms in military installations.  I joined more than 60 colleagues in writing to Secretary of Defense Ashton Carter asking him to lift this restriction on service members’ Second Amendment rights, a change which could save lives in the future.

Status: In response to this letter, the Pentagon is now considering proposals to allow specified service members to carry firearms on-base.

Dietary Recommendation Not Based On Nutrition 

The Dietary Guidelines Advisory Committee is a federal panel charged with providing recommendations to the U.S. Secretaries of Health and Human Services and Agriculture on updating federal nutrition recommendations.  Despite legislative language prohibiting them from doing so, the panel released recommendations in February 2015 to reduce meat consumption based on unscientific environmental factors, not nutrition.

Status:  I sent a letter to HHS Secretary Burwell and USDA Secretary Vilsack opposing the panel’s use of non-nutritional factors in its recommendations.  Discussion of environmental factors was excluded from the final recommendations.

Ensuring Enriched Grains Enhance Health

According to the Centers for Disease Control, consuming 400 micrograms of folic acid before and during early pregnancy reduces the risk of potentially deadly neural tube defects.  Enriched grains can also provide valuable nutrients such as B-vitamins and iron.  However, in their draft 2015 guidelines, the Dietary Guidelines Advisory Committee mistakenly categorized enriched grains with refined grains, calling for limiting consumption of both.  I joined with 59 colleagues writing to DGAC asking them to correct this error.

Status: The final DGAC Guidelines clarified the importance of enriched grains to pregnant women and those who do not choose whole grains.

Obamacare for Banks and Homebuyers

The 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act claimed to reform the financial system in the wake of the financial collapse.  However, the legislation has codified too-big-to-fail bailout policies while placing onerous new regulations on community banks which had nothing to do with the crisis, driving many out of the home mortgage market.  In response, I have introduced legislation (H.R. 171) to repeal Dodd-Frank entirely.

Status:  H.R. 171 has been referred to the Committee on Financial Services.  The House continues to regularly consider legislation addressing problematic pieces of Dodd-Frank.

Ensuring Shepherding Guidelines Match Reality

In April 2015, the U.S. Department of Labor proposed new rules governing the treatment of seasonal sheepherders, goat herders, and other types of livestock.  Among changes, to qualify under new DOL guidelines, grazing would not be open grazing permitted near fences and employers would be required to house workers in the ranch house, instead of with the herd as is standard.  The proposal would be unworkable with conditions in the modern western sheep and goat industry.  I joined with 16 colleagues in writing to DOL to oppose the proposed rule.

Status: This change was dropped from the final DOL rule, released in November 2015.

Regulation Rewind 2014:

Keep OSHA off Small Farms

The Occupational Safety and Health Administration attempted to regulate small farms, even though this is specifically prohibited by law.  In response, I helped organize a coalition of 83 bipartisan Members of Congress from both parties to write the Department of Labor opposing the regulation of small farms and challenging the department’s authority.

Status:  OSHA rescinded this proposal in response to my request.

Addressing the Propane Shortage

This winter, in response to propane shortages and rising prices, I co-lead more than 70 bipartisan members in writing to President Obama asking he lift barriers and streamline efforts to ensure access to propane supplies in the Midwest.

Status:  Based on the concerns we expressed, President Obama directed agencies to prioritize propane shipments.

Access to Rural Health Care

The Centers for Medicare and Medicaid Services announced it would begin enforcing regulations requiring doctors at rural Critical Access Hospitals to affirm Medicare patients admitted would be in the facility for less than 96 hours or face the threat of non-reimbursement for services.  This regulation creates an unnecessary administrative burden on rural physicians and duplicates the existing requirement that all critical access facilities average less than 96 hours per admission.  To address this concern, I introduced the Critical Access Hospital Relief Act (H.R. 3991).

Status:  In response to my concern, CMS has proposed scaling back enforcement.  In addition, Congress passed and the President signed into law legislation blocking physician supervision enforcement for 2014.

Efficient Use of Spent Grains

The Food and Drug Administration proposed new regulations for spent grains, a cost-effective and nutritious byproduct from breweries, distilleries, and ethanol producers, which can be used as livestock feed, reducing costs for both parties.  I joined my colleagues in the Nebraska delegation writing to the FDA opposing this overreach.

Status:  The FDA amended its proposal to address concerns raised by brewers and distillers. The rule has not yet been finalized.

Religious Freedom of Employers

Under Obamacare, the U.S. Department of Health and Human Services implemented a rule requiring employers, regardless of their religious beliefs, provide birth control to employees as part of their health insurance plan or pay a fine of $36,500 per year per employee.  I joined 85 of my colleagues in filing an amicus brief with the U.S. Supreme Court opposing this regulation in Burwell v. Hobby Lobby.

StatusThe Supreme Court overturned this regulation for businesses with five or fewer owners.

EPA Proposes Unilaterally Expanding Water Regulation Powers

The Environmental Protection Agency and U.S. Army Corps of Engineers jointly proposed expanding their regulatory authority to cover nearly all waterways and potential waterways within the United States.   However, federal law repeatedly limits their regulatory authority to navigable waters.  In addition to not complying with federal law, this law would create major new regulatory hurdles for business and agriculture. I joined 230 of my colleagues in writing to EPA Administrator McCarthy and Army Secretary McHugh requesting they withdraw the rulemaking proposal.

Status:  The House passed legislation, which was signed into law, to block this proposal for agriculture through September 2015. The EPA has also rescinded certain parts of the proposal.

Barriers to Jobs in Northwest Nebraska

For more than twenty years, the Crow Butte Mine in Dawes County has safely produced uranium for our nation’s nuclear fleet and contributed tens of millions of dollars to Nebraska’s economy.  However, approval of the facility’s license has been held up for more than seven years, blocking expansion at the site.  I led my Nebraska colleagues in writing to the Nuclear Regulatory Commission seeking the status of the Crow Butte application and the reason for its delay.

Status:  NRC renewed the license for the existing Crow Butte Mine. The expansion proposal is still pending.

Defending Freedom of Speech

Following revelations the Internal Revenue Service illegally targeted conservative non-profits, the agency responded by proposing new rules which would have limited groups’ First Amendment rights and provided them less power to conduct non-partisan voter education activities than charitable groups or labor unions.  I joined my Ways and Means Committee colleagues in writing to the IRS opposing this rule.

Status:  In response to this letter, IRS rescinded its proposal but has indicated it will produce new rules in the future.

Availability of  Local TV

Because the federal law which allows consumers to receive local television stations from satellite providers leaves consumers at the mercy of the arcane Designated Market Area  system, many Nebraskans are unable to receive the Nebraska-based stations they consider local.  To address this concern, I cosponsored the Orphan County Telecommunications Rights Act (H.R. 4635), which would allow counties to petition for inclusion in an in-state DMA to ensure access to in-state channels.

Status:  H.R. 4635 was referred to the Energy & Commerce and Judiciary Committees.

Regulations on Small Banks and Credit Unions

Federal financial regulators have proposed enforcing the Basel III international banking accord on small banks and credit unions which don’t have the same means to raise outside capital to meet these standards as large financial institutions.  I have joined Members of Congress from both parties in writing to the Chairman of the Federal Deposit Insurance Corporation, the Chair of the Federal Reserve, the Comptroller of the Currency, and the Chairman of the National Credit Union Administration Board to request the implementation of Basel III rules be reconsidered for small banks and credit unions.

Status:  Despite outside concern, regulators continued their consideration of these proposals.

Reducing Medicare Part D Spending

The Centers for Medicare and Medicaid Services proposed new rules for Medicare Part D which would have eliminated the ability of insurers in the program to negotiate the best reimbursement rates with pharmaceutical makers and pharmacies – a key cost-saving component of the program.  I joined with my Ways and Means Committee Colleagues in writing to the Department of Health and Human Services opposed to this rule.

Status:  In response to this letter, CMS rescinded this proposal.

Access to Prescription Medications

The Centers for Medicare and Medicaid proposed limiting to 3 from 6 the protected classes of medications for anti-depressants, immuno-suppressants, and anti-psychotics in Medicare Part D.  This policy could have placed harmful limits on Medicare beneficiaries’ access to necessary medications which would otherwise be covered by protected status.  I joined a group of 50 bipartisan Members on a letter raising concerns about this proposal. 

Status:  In response to this letter, CMS rescinded this proposal.