Legislative Updates

Jan. 17, 2022

Association Says Proposes Rule Would Stunt Business Growth

The National Federation of Independent Business (NFIB) has filed comments on a proposed rule from the U.S. Treasury that would require more than 25 million small businesses to submit annual reports on their beneficial owners. The proposed rule is part of the Treasury department’s effort to implement the Corporate Transparency Act, a law passed in early 2021 that requires businesses to report beneficial ownership information to the Financial Crimes Enforcement Network (FinCEN) to make it more difficult to operate anonymous shell companies or commit tax evasion. However, the law has come under scrutiny for being overly broad and burdensome to businesses.

In a letter to Treasury Secretary Janet Yellen, the NFIB says that the reporting requirement would cost small businesses an aggregate of $4 billion over 10 years. “This FinCEN dragnet collection of intelligence on small businesses in America imposes growth-stunting costs on the American economy and tramples the liberty and privacy of Americans,” it states.

NFIB made nine recommendations for how FinCEN should handle the new reporting requirements:

  • FinCEN should give the public the opportunity to comment contemporaneously on the rules for FinCEN collection of beneficial owners information (BOI), and for FinCEN safeguarding of BOI and the safeguarding rules should take effect before FinCEN collects BOI.
  • FinCEN should lengthen the deadlines for small businesses to report BOI to FinCEN.
  • FinCEN should recognize that small businesses cannot report changes to FinCEN until they become aware of these changes.
  • FinCEN should recognize that reporting companies can only certify accuracy and completeness of reports to the extent of their knowledge.
  • FinCEN lacks legal authority to seek or compel provision of more BOI than the law specifies.
  • FinCEN should tailor the list of officers presumed to have substantial control of a reporting company.
  • FinCEN should emphasize assistance-with-compliance over punishment-through-enforcement in administering the BOI regime.
  • FinCEN should state clearly that exempt entities and sole proprietors have no BOI reporting duties.
  • The president, the secretary of the treasury and the director of national intelligence should apply to FinCEN, as an agency focused on collections of a massive amount of intelligence, the safeguards that apply to other U.S. intelligence agencies.

To read the full letter, click here.

Jan. 17, 2022

Decision Blocks Requirement that Large Employers Force Vaccines or Weekly Testing on Workers

In a statement on Jan. 13, the National Association of Wholesaler-Distributors (NAW) commended the U.S. Supreme Court’s ruling to reinstate the stay on the Biden administration’s vaccine mandate for companies with more than 100 employees.

“While we share the goal this mandate hopes to achieve, the reality is that this broad government overreach will have dramatic impacts on the economy, as tens of thousands of Americans quit their jobs rather than submit to the edict of government,” NAW CEO Eric Hoplin said. “Moreover, imposing testing requirements during a nationwide shortage of COVID-19 tests leaves businesses open to massive fines from the government. Since vaccines became available, NAW and its member companies have strongly supported vaccinating America and our workforce and will continue to do so until the pandemic is behind us.

Earlier this year, the Biden administration announced plans to require large employers to either ensure every employee was vaccinated or submitted to weekly COVID-19 testing. The Occupational Safety and Health Administration announced an emergency temporary standard (ETA) in early November that guided how employers should comply with the regulation, however, it was immediately challenged in court. With federal appeals courts split on whether to stay or allow the mandate to move forward, the U.S. Supreme Court heard oral arguments for both sides on Jan. 7 and issued a 6-3 decision to block the mandate.

“Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather,” the court wrote in its opinion. “That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life – simply because most Americans have jobs and face those same risks while on the clock – would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

Jan. 17, 2022

FEDA Signs Letter Asking Department of Labor to Follow Precedent

FEDA has joined the National Association of Wholesaler-Distributors and other trade groups in signing a letter asking the Department of Labor (DOL) to hold meetings with business leaders before making proposed changes to overtime regulations.

The DOL announced in its most recent regulatory agenda that it plans to issue a notice of proposed rulemaking in April that would update the salary level for white collar workers to be exempted from overtime pay requirements. The threshold was $23,600 until 2015 when the Obama administration proposed increasing it to $50,440. The DOL lowered that level to $47,476 when it issued a final rule on the matter in 2016, but a federal court overturned it a year later. As a result, the DOL under the Trump administration issued a new rule in 2019 that increased the salary threshold to $25,568 starting on Jan. 1, 2020.

The DOL has not yet stated the salary threshold increase it would consider, but at least four members of Congress – Rep. Mark Takano (D-CA), Rep. Bobby Scott (D-VA), Alma Adams (D-NC) and Sen. Sherrod Brown (D-OH) – wrote a letter to the department urging an $82,732 minimum.

The letter from the trade groups asks the DOL to follow precedent and hold meetings with the regulated community to obtain input on the potential impact any changes could cause before deciding on a new threshold. “The labor markets today are much different than when the Department last updated the regulations, or when the Obama administration did so,” the letter states.” DOL would benefit from stakeholder insights into the current economic environment and the practical implications certain policies could have on the economy, workers and the employer community to develop an appropriate proposed rule.”

The full letter is available here.

Jan. 10, 2022

Restaurants Publish Op-Eds in Local Newspapers

With many legislators home from Washington, D.C. over the holidays, the National Restaurant Association used the opportunity to increase local pushes for replenishing the Restaurant Revitalization Fund (RRF).

The RRF was created in 2021 as part of the American Rescue Plan. The initial $28.6 billion allocated for the fund ran out in less than two months before many restaurant operators could obtain federal aid. Since then, the National Restaurant Association has continued to advocate for more funding for the RRF. Over the holidays, the association worked with restaurants across the country to place newspaper op-eds in Baltimore, Houston, Portland and Washington, D.C., and Sean Kennedy, executive vice president of public affairs for the National Restaurant Association appeared on Fox News to highlight the challenges created by the Omicron COVID-19 variant.

“The media campaign is working and policymakers here in our nation’s capital continue to raise the need to replenish RRF,” Kennedy said in a statement. “But believe me, we’re not satisfied with just talk and are escalating our campaigns in key states using both traditional and social media. We need more Republican support, but we also need Democrats to work with the GOP on how best to fund an RRF replenishment. Do not be discouraged by the ups and downs in media reports on how our efforts are faring. Every large legislative effort has fits and starts - we just need to stay focused on not stopping our advocacy efforts.”

Jan. 4,  2022

Judges to Consider Requirements Days Ahead of OSHA Enforcement

The U.S. Supreme Court will hear oral arguments on the Biden administration’s controversial vaccine mandate on Friday, Jan. 7.

The mandate, if upheld, would force companies with 100 or more employees to adopt written policies requiring employees to either be vaccinated or undergo weekly COVID-19 testing and wear a facemask at work. In early November, the Occupational Safety and Health Administration (OSHA) published its emergency temporary standard (ETS) rules guiding employers on how to comply with the mandate. The rules were immediately challenged in court by various organizations, government bodies and trade groups, including the National Association of Wholesaler-Distributors. Since then, the 5th U.S. Circuit Court of Appeals placed a stay on the mandate only for the 6th U.S. Circuit Court of Appeals to reinstate it a few weeks later.

OSHA plans to begin issuing citations for noncompliance with any requirements of the ETS on Jan. 10 and for noncompliance with testing requirements on Feb. 9. The deadline has created urgency in the court system to resolve the legality of the vaccine mandate, prompting the U.S. Supreme Court to take up the issue.

Jan. 4,  2022

State Privacy Laws Creating Complex Patchwork of Rules

FEDA recently signed onto a letter encouraging Congress to pass comprehensive privacy legislation. The letter, authored by the U.S. Chamber Technology Engagement Center, and will be sent to congressional legislators.

The letter notes that in the absence of federal data privacy legislation, individual states have taken up the issue, creating a patchwork of often conflicting laws that companies must comply with to do business across the country. Further, the Federal Trade Commission is considering privacy rulemaking that would add another layer to the complexity of state laws. Rather than forcing businesses to navigate these state rules, the Chamber is pushing for bipartisan and durable national data protection.

“Data is foundational to America’s 21st-century economic growth and keeping society safe, healthy and inclusive,” the letter states. “Technologies like artificial intelligence are leading to vaccine development and expanding opportunities financially to those who have traditionally been underserved. Fundamental to the use of data is trust and a national privacy law that is clear and fair to business and empowering to consumers will foster the necessary digital ecosystem necessary for America to compete.”

To read the full letter, please click here.

Jan. 4,  2022

Letter Says the Reconciliation Bill Would Harm Businesses

FEDA has joined other trade groups in signing a letter asking Congress and the Biden administration to end efforts to pass the $1.75 trillion Build Back Better reconciliation package. The letter states that congressional leaders should instead focus on the challenges confronting American families and businesses, such as rising prices, labor shortages and supply chain constraints, rather than pushing for a massive spending bill that would increase inflation.

“The Administration argues that the Build Back Better bill will help to reduce prices, but those arguments are simply not credible,” the letter states. “Our members believe the primary causes of the reemergence of inflation are the Federal Reserve’s continued easy money policies, massive amounts of deficit spending by Congress and continued supply constraints, some tied to the Administration’s economic and COVID policies.”

The tax increases that are part of the Build Back Better plan would burden businesses and lead to greater inflation, the letter continues. “Congress needs to make a similar adjustment, beginning by ending efforts to sharply increase federal spending while raising taxes on America’s employers.”

To read the full letter, click here.

Dec. 20, 2021

NAW Says New Requirements Allow Distributors to Compete in Pilot Program

The newly passed National Defense Authorization Act (NDAA) includes a provision intended to level the playing field in the federal government’s pilot e-commerce portal program that gave Amazon an advantage over other distributors.

The 2018 NDAA required the General Services Administration (GSA) to establish a pilot program for using commercial e-commerce platforms to purchase items for various federal agencies. However, the requirements for the pilot program effectively narrowed the eligible e-commerce marketplace platforms to only one: Amazon. Since then, Congress directed the GSA to include multiple commercial e-commerce portal providers in its pilot tests, but the GSA has continued to favor Amazon as a platform provider.

The new NDAA seeks to rectify the situation by placing new requirements on the GSA pilot program. The National Association of Wholesaler-Distributors (NAW) celebrated this change in a statement on Dec. 15. “On behalf of the $6 trillion wholesale distribution industry, we commend and thank Rep. Veronica Escobar (D-TX) and Congress for addressing GSA’s current pilot e-Commerce Portal program which unfairly gives Amazon monopoly power in federal government procurement,” said Blake Adami, NAW vice president of government relations. “Every day, Amazon commits unfair acts against small businesses and distributors that sell on Amazon’s marketplace. This year’s NDAA requires the GSA to go beyond solely using Amazon’s e-marketplace and begin testing several different e-commerce models in the pilot program. This provision will ultimately allow small businesses and distributors to participate in the program’s e-commerce portal and compete in this process without being pushed out due to limited competition and unfair practices. NAW is committed to fighting unfair acts by monopolistic companies and we urge Congress to continue its work on antitrust legislation to hold companies like Amazon accountable.”