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White House Issues Executive Order Providing Agencies with Regulatory Enforcement Discretion to Promote Economic Recovery


White House Issues Executive Order Providing Agencies with Regulatory Enforcement Discretion to Promote Economic Recovery

The Trump Administration issued its Executive Order on Regulatory Relief to Support Economic Recovery (the “EO”) on May 19, 2020 (Executive Order). The EO seeks to remedy the economic impact of the ongoing COVID-19 pandemic by removing certain administrative barriers and providing flexibility in the implementation and enforcement of other administrative provisions and requirements.

Although certain provisions of the EO are vague, Section 1 states the EO’s policy that “Agencies should address this economic emergency by rescinding, modifying, waiving, or providing exemptions from regulations and other requirements that may inhibit economic recovery, consistent with applicable law and with protection of the public health and safety, with national and homeland security, and with budgetary priorities and operational feasibility.”

Section 4 of the EO asks the heads of all federal government agencies to “temporarily or permanently rescind, modify, waive, or exempt persons or entities” from regulatory standards “that may inhibit economic recovery.”  Significantly, Section 5(b) of the EO gives agency heads the discretion to “decline enforcement against persons and entities that have attempted in reasonable good faith to comply with applicable statutory and regulatory standards, including those persons and entities acting in conformity with a pre-enforcement ruling.”  (Emphasis added.)

Of course, agencies must act within their statutory and regulatory frameworks and must also comply with the Administrative Procedure Act, but the EO potentially has broad implications across sectors and agencies, including for international trade.  As an example of how this EO might affect certain trade issues, consider the following:

-Importers should not expect to be exempted from exercising reasonable care, paying duties, participating in antidumping or countervailing duty investigations,  or complying with any other CBP, Commerce or ITC statutory or regulatory requirements.  Per Section 5(b) of the EO, Agency heads have enforcement discretion “as permitted by law,” meaning agency heads cannot override a statute, even if they believe that doing so would aid economic recovery. However, for matters that have already been placed within the “enforcement discretion” of an agency, the government has the ability to be more lenient in accordance with the EO. For instance, an agency could seek to enforce minimum penalties within a range of statutory options, although the agency could not ignore statutory requirements altogether.

-Similarly, if CBP discovered that certain imported apparel violated CPSC lead content standards, CBP and the CPSC could extend a more lenient resolution by permitting the shipment to be reconditioned or reexported rather than destroyed.

Another potential question is how evenly any leniency in trade and customs matters will be applied since the Trump administration has made tariffs and restrictions on Chinese imports and exports a pillar of its political platform. Because of the broad nature of the EO and because any action will be at the agency head’s discretion, we reiterate that it is difficult to determine the EO’s exact effects at this time. However, we can expect that affected companies and individuals will seek to use the flexibility and leniency provisions of the EO, effective immediately.


Robert Stang is a Washington, D.C.-based partner with the law firm Husch Blackwell LLP. He leads the firm’s Customs group.

Jeffrey Neeley is a Washington-based partner with the law firm Husch Blackwell LLP. He leads the firm’s International Trade Remedies team.

Julia Banegas is an attorney in Husch Blackwell LLP’s Washington, D.C. office.

 Camron Greer is an Assistant Trade Analyst in Husch Blackwell LLP’s Washington D.C. office.

Frustration With White House Port Labor Inaction

Los Angeles, CA – More than 160 associations and industry groups have addressed another letter to President Barack Obama “expressing our continued concerns with the status of the West Coast port labor negotiations and the impact the ongoing congestion and slowdowns are having on all segments of the economy.”

The groups represent a wide spectrum of U.S.-based manufacturers, farmers, wholesalers, retailers, importers, exporters, and transportation and logistics providers. The letter follows in its entirety:

Mr. President:

“We are seeking your help in moving the negotiations to mediation similar to what occurred during the contentious East Coast port labor negotiations in 2012.

“The labor contract negotiations between the International Longshore and Warehouse Union (ILWU) and the Pacific Maritime Association (PMA) began on May 15, 2014 and it seems little progress has occurred since the contract expired on July 1, 2014.

Not Close to an Agreement

“While there was optimism with the latest exchange of comprehensive proposals last week, the recent statement by PMA that the parties are not close to an agreement and “remain far apart on several issues” is very concerning.

“Even after continued negotiations through this past weekend, the PMA has now officially asked for a Federal mediator to be assigned to help the parties achieve a final deal.

“It is imperative that the ILWU agree to the use of a mediator. We continue to see significant congestion at the ports which is impacting both imports and exports. While there are many reasons for the congestion beyond labor slowdowns, industry cannot begin to develop solutions until a new contract is finally resolved.

“We are extremely concerned the negotiations will now slip into 2015 and continue to cause problems for all industries that rely on the ports.

The Impact from ‘Congestion and Slowdowns’

“Importers, exporters and others are feeling the impact from the congestion and slowdowns at the ports. There have been daily news stories about the impacts on industries that rely on the ports to get their products to market.

“Retailers have had delays in getting holiday goods to store shelves. Manufacturers have had to slow and even stop production lines due to unavailable components delayed at the ports, creating high-levels of uncertainty for workers and employers who are aiming to deliver products to domestic and global customers.

“Potato farmers and apple growers have missed shipments to overseas markets, potentially closing those markets to future sales. There have even been reports of cancelled Christmas tree shipments to Asian markets.

“The longer these negotiations continue, the greater the negative impact this will have on jobs, down-stream consumers, and the business operations of exporters, importers, retailers, transportation providers, manufacturers, and other stakeholders. Our organizations continue to believe that both parties can reach an agreement that will ensure the continued success and competitiveness of these ports for the foreseeable future. “However, after seven months of negotiations with little progress, we believe federal mediation is needed to help them reach a conclusion.

With an official request from the PMA for a mediator, we urge the administration to work with both parties to appoint a mediator from the Federal Mediation and Conciliation Service (FMCS) in order to help them conclude their negotiations as quickly as possible.”

The letter was endorsed by, among others, the Alliance of Automobile Manufacturers, American Apparel & Footwear Association, American Association of Exporters and Importers, American Association of Port Authorities, American Trucking Associations, California Farm Bureau Federation, Columbia River Customs Brokers and Forwarders Association, Coalition of New England Companies for Trade, Customs Brokers and International Freight Forwarders of Washington State, Fashion Accessories Shippers Association, Food Marketing Institute, Green Coffee Association, Indiana State Poultry Association, Intermodal Association of North America, International Dairy Foods Association, International Warehouse and Logistics Association, Los Angeles Area Chamber of Commerce, Michigan Retailers Association, and the Montana Retail Association.

Also signing the letter were the Motor & Equipment Manufacturers Association, National Association of Manufacturers, National Cattlemen’s Beef Association, National Electrical Manufacturers Association, National Customs Brokers and Forwarders of America, National Retail Federation, National Shippers Strategic Transportation Council, North American Export Grain Association, North American Meat Association, North American Shippers Association, NY/NJ Foreign Freight Forwarders and Customs Brokers, Orange County Business Council, Oregon Department of Agriculture, Pacific Coast Council of Customs Brokers and Freight Forwarders, Pacific Northwest Asia Shippers Association, Texas Cotton Association, The National Industrial Transportation League, United Fresh Produce Association, United States Council for International Business, United States Fashion Industry Association, U.S. Chamber of Commerce, U.S. Meat Export Federation, U.S. Shippers Association, Washington Council on International Trade, Washington Retail Association, and the Wine Institute.

The letter was also sent to all members of Congress, Department of Transportation Secretary Anthony Foxx, Department of Commerce Secretary Penny Pritzker, Department of Labor Secretary Thomas E. Perez, Federal Maritime Commission Chairman Mario Cordero, Federal Mediation and Conciliation Service Acting Director Allison Beck, and the governors of California, Oregon and Washington.


Pressure Builds on White House to Take Port Action

Los Angeles, CA – Pressure is building on the White House to appoint a federal mediator to broker a new labor contract between U.S. West Coast union dock workers and the terminal operators that employ them at 29 U.S. West Coast ports from Bellingham, Washington, to San Diego.

The latest call for action comes from the executive directors of the Port of Los Angeles and the Port Long Beach, as a work slowdown at the nation’s two top-ranking containerports has eroded dramatically since both the Pacific Maritime Association (PMA) and the International Longshore & Warehouse Union (ILWU) ended an unsuccessful round of talks in October.

The PMA has charged the ILWU is filling only about 50 percent of the work orders for skilled equipment operators needed for yard work, while the union insists the admittedly slowed pace is a result of a chronic list of problems that range from working the latest generation of mega-containerships to a shortage of chassis and what they call “terminal mismanagement.”

“Enough is enough. These guys have to get back to work,” said Jon Slangerup, executive director of the Port of Long Beach, at a recent maritime industry event.

Slangerup and Gene Seroka, executive director of the neighboring Port of Los Angeles, have joined a growing number of representatives from both the public and private sectors publicly urging President Obama to name a Federal Mediation & Conciliation Service representative to end the impasse and get both groups to come to an agreement and end the crippling work slowdown.

Over the past several weeks, the two largest industry groups in the country – the National Retail Federation and the National Association of Manufacturers – have ramped-up their efforts to get the White House to act with U.S. Senators and House delegations from California, Washington, and Oregon and the mayors of several cities including Los Angeles and Long Beach have written President Obama urging him to appoint a mediator.

Agricultural exporters have reported the shipping delays are backing up supply lines and creating serious economic damage, hurting their reputation among overseas buyers.

Obama’s only statement on the situation was issued in mid-November, when an Administration spokesman said that the president was “confident the two sides” will reach a contract.

The situation, said Slangerup, “has gotten worse. That should send a clear signal to the White House that it is time for action. The president has to act. It is long overdue.”