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Chief Counsel Testifies on Advocacy Involvement in the Regulatory Process

Office of Advocacy - 4 hours 9 min ago

For Release: February 10, 2016

SBA Number: 16-03 ADV


Contact: Elle Patout


Categories: Latest News, SBA Advocate

Rokita Statement: Hearing on "Next Steps for K-12 Education: Implementing the Promise to Restore State and Local Control"

After years of flawed policies and federal intrusions into the nation’s classrooms, Congress passed the Every Student Succeeds Act based on the principle that responsibility of K-12 education must be returned to state and local leaders. The new law repeals onerous federal requirements and ensures important decisions affecting education – like standards, accountability, and school improvement – are made by state and local leaders, not Washington bureaucrats.

That’s why the Wall Street Journal editorial board described the legislation as “the largest devolution of power to the states in a quarter century” and why the National Governors Association lauded the new law as “an historic moment in ensuring children’s future success in the nation’s schools.”

There is no question that replacing No Child Left Behind was an important achievement, one that will improve K-12 education for students and families. But our work is far from finished. In fact, it is just beginning. Over the last several years, this administration has routinely taken a top-down approach to education, imposing on states and school districts a backdoor agenda that has sparked bipartisan opposition and harmed education reform efforts.

The passage of the Every Student Succeeds Act puts states and school districts back in charge of education, and includes more than 50 pages of provisions to keep the Department of Education in check. For example, the law protects the right of state and local leaders to determine what standards, assessments, and curriculum are best for their students, and ensures state and local leaders are responsible for accountability and school improvement.

Moving forward, it’s our collective responsibility to hold the Department of Education accountable for how it implements the law. Congress promised to restore state and local control over K-12 education, and now it’s our job to ensure that promise is kept. Hearing from you – the very leaders we want to empower – is a critical part of that effort. What do you expect from the new law? What role do state and local leaders play in implementing the law? What challenges do you anticipate states and school districts may face? How can the department provide the increased flexibility and autonomy state and local leaders were promised?

Today’s conversation is one of many steps we plan to take to ensure the department upholds the letter and spirit of the law, and answers to these questions will inform our efforts moving forward. It is my firm belief that when the Every Student Succeeds Act is implemented as Congress intended, parents, teachers, and state and local leaders will be empowered to deliver the excellent education every child deserves.  


2/10/2016- Committee on Small Business Subcommittee on Investigations, Oversight, and Regulations

Office of Advocacy - 11 hours 35 min ago

Printer Friendly Version


Testimony of


The Honorable Darryl L. DePriest, Esq.

Chief Counsel for Advocacy

U.S. Small Business Administration


U.S. House of Representatives

Categories: Latest News, SBA Advocate

EEOC to Require Employers with 100 or More Employees to Disclose Pay Data

Office of Advocacy - Tue, 02/09/2016 - 1:38pm

In accordance with the Paperwork Reduction Act (PRA), the U. S. Equal Employment Opportunity Commission (EEOC) proposes a revision to an employer form to include collecting pay data from employers. The current Employer Information Report (EEO-1) collects data about employees' ethnicity, race, and sex, by job category for employers with 100 or more employees, or federal contractors with 50 or more employees and a federal contract of $50,000 or more.

Categories: Latest News, SBA Advocate

Arizona Supreme Court Joins Overwhelming Majority in Recognizing the Learned Intermediary Doctrine

WLF Legal Pulse - Thu, 02/04/2016 - 12:33pm
Last month, the Arizona Supreme Court became the most recent state high court to recognize the “learned intermediary doctrine” (LID). The LID provides a defense to drug companies in failure-to-warn products-liability cases so long as the manufacturers provided the prescribing doctor with all required safety information. In so doing, the court joined the 36 other […]
Categories: Latest News

Advocacy Report Examines the Millennial Entrepreneur

Office of Advocacy - Thu, 02/04/2016 - 7:49am

For Release: February 4, 2016

SBA Number: 16-02 ADV


Contact: Elle Patout

Categories: Latest News, SBA Advocate

Advocacy Involvement Relieves Regulatory Burden on Small Business

Office of Advocacy - Thu, 02/04/2016 - 7:40am

For Release: January 12, 2016

SBA Number: 16-01 ADV


Contact: Elle Patout


Categories: Latest News, SBA Advocate

Kline Statement: Hearing on "Expanding Educational Opportunity Through School Choice"

Education & the Workforce Committee - Wed, 02/03/2016 - 12:00am
This committee’s work to improve K-12 education has always been guided by the belief that every child – regardless of where they come from or how much money their parents make – should receive an excellent education. Unfortunately, some schools are failing to provide students that opportunity. Too many of our nation’s students are entering high school without the critical skills they need to complete their education, and too many graduates are going off to college or entering the workforce without the tools they need to succeed in life.

Everyone here agrees our children deserve better. They deserve the opportunity to receive a better education and pursue a better life. That’s why improving K-12 education continues to be such an important priority at the federal, state, and local levels. By empowering parents to do what’s best for their child, school choice has been an instrumental part of that effort.

When we passed legislation last year to improve K-12 education, empowering parents was one of our primary goals, because we know parents can make the most meaningful difference in their child’s education. Several reforms in the Every Student Succeeds Act help parents do what’s best for their child’s education by expanding school choice, reforms such as: increasing access to quality charter schools and magnet schools; protecting home schools from federal interference; and launching a pilot program that will encourage excellent schools to enroll harder to serve students.

While these reforms are encouraging, education leaders in state capitals and local school districts are the real reason why the promise of school choice has touched the lives of so many parents and children. The progress we have seen over the last 25 years is remarkable.

The school choice movement began in Milwaukee, Wisconsin, in 1990, where local leaders piloted the first private school choice program. Known as the Milwaukee Parental Choice Program, the pilot provided low-income families scholarships to attend a quality school. Since then, the program has paved the way for thousands of students to receive a better education and inspired 27 other states to create different types of private school choice programs – many of which have been credited with helping students graduate not only from high school, but from college as well.

My home state of Minnesota was not far behind Milwaukee in expanding educational opportunities for students and families. In 1991, the state passed the nation’s first charter school law, providing parents an alternative public school option that better met their child’s needs. Today more than 40 states have passed charter school laws, opening the doors to thousands of schools that have served millions of students.

These are just a few examples of how school choice is helping students and families. Last week marked the 5th annual National School Choice Week, where more than 16,000 events in all 50 states showcased the success of school choice, from private school scholarships and public charter schools to homeschooling and education savings accounts. In all its forms, school choice has provided real hope to moms, dads, and children across the country.

Today, as we learn more about how states and local communities are expanding school choice, I encourage my colleagues to ask how we can support these efforts and help more children receive the education they deserve. 

IRS Proposes New Non-Discrimination Requirements for Retirement Plans

Office of Advocacy - Tue, 02/02/2016 - 1:26pm

On January 29, 2016, the Internal Revenue Service (IRS) issued proposed rules that would modify the nondiscrimination requirements for retirement plans that provide additional benefits to a grandfathered group of employees following certain changes in the coverage of a defined benefit plan or a defined benefit plan formula.

Categories: Latest News, SBA Advocate

Carter Statement: Markup of H.R. 4293, the Affordable Retirement Advice Protection Act, and H.R. 4294, the Strengthening Access to Valuable Education and Retirement Support Act

Education & the Workforce Committee - Tue, 02/02/2016 - 12:00am
As policymakers, we should be doing everything we can to ensure hardworking men and women have the tools they need to build a financially secure retirement. That’s a goal I have taken very seriously as a member of this committee, and it’s a goal that was very important to me as a small business owner.

Having owned and operated community pharmacies for nearly thirty years, I was very proud to provide retirement plans for my employees. When you’re a small business owner, your employees are like family, and you want what’s best for them. You want to help them build a comfortable future, and when they leave your business, you want them to enjoy the retirement they worked so hard to achieve.

Fortunately, I was able to do that for my employees. I worked with an advisor that I knew and trusted to set up a retirement plan, and as a result, my employees benefited. For me, providing that benefit was an important part of owning a small business, and it’s a priority for many other small business owners as well.

While working with our Democratic colleagues to develop these legislative proposals, Dr. Roe convened a hearing to explore the consequences of the Department of Labor’s fiduciary proposal and discuss the best way to protect affordable retirement advice. At that hearing, we heard from Rachel Doba, a small business owner from Indianapolis who started a civil engineering firm that focuses on local public works projects.

Ms. Doba has a trusted financial advisor who has helped provide retirement security for her 15 employees – who she called her family – as well as for herself. She considers her advisor a part of her team and her employees trust him to provide educational materials that will help the team make sound financial decisions. Ms. Doba explained that those resources are important to her both as an employer and as an individual saving for her own retirement, but she is concerned the department’s proposal puts all of that in jeopardy. And she’s not alone.

She and many employers like her are fearful that complicated and discriminatory new requirements will drive up costs and make it significantly harder – if not impossible – to help their employees plan for retirement. They simply don’t have the time, resources, or expertise to do that without the help of an advisor, so many of them will be forced to stop providing retirement advice to their employees all together. And that’s a big problem.

Small business owners provide hundreds of billions in retirement savings for millions of households. If even a fraction of those small business owners are unable to provide their employees with retirement plans as a result of the department’s flawed proposal, the impact on workers will be significant. Having had the privilege of helping my own employees save for their retirement, I know what cutting off such an important resource could mean for them and their families.

That’s why joining Dr. Roe’s effort to introduce a bipartisan alternative to the department’s proposal was so important to me. These proposals will ensure financial advisors act in their clients’ best interests. They will keep trusted retirement advice affordable for all families planning for retirement. And they will ensure small business owners continue to receive the help they need to provide the retirement plans their employees deserve.

That’s why joining Dr. Roe’s effort to introduce a bipartisan alternative to the department’s proposal was so important to me. These proposals will ensure financial advisors act in their clients’ best interests. They will keep trusted retirement advice affordable for all families planning for retirement. And they will ensure small business owners continue to receive the help they need to provide the retirement plans their employees deserve.

Kline Statement: Markup of H.R. 4293, the "Affordable Retirement Advice Protection Act," and H.R. 4294, the "Strengthening Access to Valuable Education and Retirement Support Act"

Education & the Workforce Committee - Tue, 02/02/2016 - 12:00am
Retirement security has always been a priority that stretches across party lines. We all want every American to retire with the dignity and financial security they deserve. It’s why Congress passed the Employee Retirement Income Security Act with near unanimous support. It’s why John Boehner and Ted Kennedy worked together on the Pension Protection Act, and why George Miller and I worked together on the Multiemployer Pension Reform Act. It’s also why we are here today.

We are here to improve protections for those who rely on the help of financial advisors when saving for retirement. This effort began four and a half years ago, when Congressman Phil Roe held the first congressional hearing on the Department of Labor’s proposed changes to the rules governing retirement advice. At the time, Chairman Roe raised concerns that the department’s expansive proposal would hurt the very people it was intended to help, and those concerns were shared by Republicans and Democrats alike.

Due to the leadership of Congressman Roe and others, the department would later withdraw its proposal. We had hoped that would mark the beginning of a more collaborative effort between Congress and the administration, one that would improve in a responsible way policies affecting retirement advisors. In fact, we have repeatedly expressed our willingness to do just that.

Unfortunately, the department has insisted on a different approach. After withdrawing its proposal in 2011, the department went back behind closed doors to draft a new regulation that suffers from the same fatal flaws as the first. It creates a convoluted regulatory scheme that will drive up the cost of retirement advice. Men and women will lose access to their trusted financial advisors. Providing basic information about retirement planning will be severely restricted, and it will be much harder for small business owners to provide retirement plans to their workers.

This regulatory proposal will hit low- and middle-income families the hardest. Wealthier Americans can already afford to hire professional advisors who direct and manage their investments on a near daily basis. Low- and middle-income families cannot. These families have fewer means to invest, and they often just need some help getting started and staying on the right track. The Department of Labor is threatening the ability of these families to find the help they need at a cost they can afford.

These concerns have been expressed time and again by lawmakers in both parties serving on both sides of the Capitol. The question is: What are we going to do about it? Are we going to cross our fingers and hope the administration gets this right? Or are we going to put forward our own ideas to improve the law and protect families saving for retirement? The stakes are too high for Congress to sit back and do nothing.

Fortunately, Republicans and Democrats are committed to a responsible, bipartisan alternative. That is why Congressman Roe, along with Representatives Buddy Carter, Richard Neal, John Larson, and Peter Roskam developed the legislation we are now considering. Despite important differences, the bills before us today and the department’s regulatory proposal are similar in two important ways.

First, they would both require financial advisors to serve their clients’ best interests. There has never been any argument over whether a ‘best interest’ standard is the right standard, but there are clear differences on how to implement it. This bipartisan legislation strikes the right balance between raising the bar on financial advisors and ensuring individuals have access to basic advice, like whether to roll money from one retirement account to another.

Second, both the legislation and the department’s proposal recognize that transparency is vital to empowering individual investors. The legislation builds upon existing policies requiring advisors to disclose meaningful information to their clients, including how the advisor is compensated for his or her services. Unlike the proposed regulation, the bipartisan legislation provides investors with the information they need to make an informed decision and then lets them make the decision that’s best for their families.

Raising the bar on financial advisors and increasing transparency are how you strengthen protections for retirement savers. This bipartisan legislation accomplishes both in a way that doesn’t harm the men and women who rely on the help of their trusted financial advisors.

In closing, I’d like to briefly discuss the process, because I suspect some of our colleagues will as well. More than two months ago, Congressman Roe and others invited anyone wishing to craft a bipartisan alternative to the department’s proposal to join the effort. Not a single Democrat on this committee accepted the invitation. Yet here we are, considering a bipartisan proposal, in an open legislative process, where Republicans and Democrats are free to offer their ideas.

This is a stark contrast to the department’s own regulatory process. No one here has seen the latest draft of the department’s proposal. No one knows what – if any – changes the department has made in response to public concerns. And no one will have an opportunity to review or comment on the final proposal before it is imposed on millions of families.

The hardworking men and women trying to save for their retirement deserve better than an extreme, partisan scheme jammed through a flawed regulatory process. This legislation provides members of Congress an opportunity to vote on a responsible, bipartisan alternative that will strengthen the retirement security of working Americans, and I urge my colleagues to support it.

Roe Statement: Markup of H.R. 4293, the "Affordable Retirement Advice Protection Act," and H.R. 4294, the "Strengthening Access to Valuable Education and Retirement Support Act"

Education & the Workforce Committee - Tue, 02/02/2016 - 12:00am
For hardworking men and women, retirement should be something to look forward to. Unfortunately, for many individuals, a comfortable, secure retirement seems unattainable. That’s why it’s important that we, as policymakers, are doing what we can to help Americans build a secure retirement. Part of that effort is ensuring they have the tools they need to plan for the future. For years, that’s been our goal, and that’s exactly why we are here today.

When the Department of Labor first proposed changes to the rules governing retirement advice, we had concerns. We completely agreed – and still do – that financial advisors should be required to act in their clients’ best interests. Instead, our concerns were focused on the details of the department’s proposal.

It became clear that rather than help individuals obtain high-quality retirement advice, the proposal would make retirement planning harder for those most in need of assistance. So we, along with a number of our Democratic colleagues, called for the department to rethink its proposal. We held hearings and wrote letters, and eventually, the department decided to go back to the drawing board. Unfortunately, when they released their revised proposal last year, it was similarly flawed.

Once again, it became clear the department’s approach would make retirement advice unaffordable or inaccessible for low- and middle-income families. Once again, we heard from small business owners who explained how they will be unable to offer their employees retirement plans if the department’s rule goes into effect. And once again, we weren’t alone in our concerns.

Much like with the department’s first proposal, our Democratic colleagues in both the House and the Senate spoke out against the rule. In fact, nearly 100 House Democrats – including members of this committee – wrote to Secretary of Perez about concerns they were hearing, concerns that the proposal could limit the ability of certain individuals to access retirement advice. Those House Democrats also urged the department to seek a balanced approach that protects individuals while still protecting access to retirement investment advice for all Americans.

That’s exactly the approach we took in developing the two proposals we’re considering today. With the administration clearly intent on pushing forward a flawed proposal, I – along with several colleagues from both sides of the aisle – began working to come up with a legislative solution. We developed a set of principles to guide that effort, and after much work and collaboration, we put forward these two bills.

Some say we should wait until the department finalizes its proposal. In other words, we should wait until it’s too late. Instead, we drafted a bill that gives the administration a chance to get it right. If they release a responsible rule, Congress will approve the plan, and it will go into effect. If not, our bipartisan alternative will do what the department couldn’t.

These proposals will strengthen retirement planning by requiring financial advisors to look out for their clients’ best interests. They will enhance transparency and accountability with several clear, simple, and relevant disclosure requirements. And they will protect access to high-quality, affordable retirement advice for all workers, retirees, and small business owners. I’m confident our bipartisan solution will ensure more Americans are able to successfully plan for their futures and, as a result, are able to look forward to their hard-earned retirement.

The changes in the proposed substitute amendment make a number of technical and clarifying changes to the original bill. I urge my colleagues to support the substitute, as well as the underlying bill, and I yield back the balance of my time.

Federal Officials Display Disregard for Due Process in Opposing “Mens Rea” Reform

WLF Legal Pulse - Mon, 02/01/2016 - 9:05am
Fair notice of the law is a basic principle that separates liberal democracies like the United States from more authoritarian governments. Fair notice is an especially critical due-process check against government’s power to criminally prosecute. Government must not only prove that a person did the unlawful act, but also that he intentionally engaged in wrongful […]
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Bureau of Land Management Proposes Rule on Oil/Gas Production on Federal Land

WLF Legal Pulse - Mon, 01/25/2016 - 4:40pm
Featured Expert Column – Environmental Law and Policy by Samuel B. Boxerman, Sidley Austin LLP with Ben Tannen, Sidley Austin LLP On January 22, 2016, the U.S. Department of Interior’s (“DOI”) Bureau of Land Management (“BLM”) issued a proposed rule governing oil and natural gas production on onshore Federal and Tribal lands. Bureau of Land […]
Categories: Latest News

“Sorrell v. IMS Health” Is Gaining Traction in the Federal Appeals Courts

WLF Legal Pulse - Thu, 01/21/2016 - 9:02am
Some legal commentators heralded the U.S. Supreme Court’s 2011 decision in Sorrell v. IMS Health, Inc. as a marked expansion of First Amendment protections for commercial speech. Sorrell held that content- or speaker-based restrictions on non-misleading commercial speech regarding lawful goods or services should be subjected to “heightened” judicial scrutiny. But whether Sorrell would have […]
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High Court’s Cert Denial Should Put an End to Novel Anti-Preemption Claim in Medical Device Suits

WLF Legal Pulse - Wed, 01/20/2016 - 9:17am
Guest Commentary by Matthew A. Reed, Sedgwick LLP When plaintiffs bring state tort causes of action against the manufacturers of medical devices that have passed the Food and Drug Administration’s (“FDA”) rigorous pre-market approval (“PMA”) process, they enter a realm highly regulated by the federal government, and thus face a daunting task to avoid dismissal […]
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Walberg Statement on Labor Department’s Joint Employer “Guidance”

Education & the Workforce Committee - Wed, 01/20/2016 - 12:00am

Workforce Protections Subcommittee Chairman Tim Walberg (R-MI) issued the following statement today in response to enforcement changes announced by the Department of Labor's (DOL) Wage and Hour Division:

Once again the administration is pushing regulatory policies that will harm the workers and job creators they claim they want to help. This is part of a larger effort that will threaten the livelihoods of small business owners and destroy opportunities for workers and entrepreneurs to succeed in today's economy. Every day countless individuals are working to start their own businesses and shape an innovative 21st century workforce, and the president and his allies insist on imposing outdated policies that will hold them back. Adding insult to injury, the administration denied the very men and women impacted by this new regulatory scheme a chance to voice their views and concerns. We need to focus on solutions that will create – not destroy – opportunities for working families to achieve the success they deserve. 

BACKGROUND: In recent years, the Obama administration has made a concerted effort to redefine what it means to be an employer. Discarding years of settled labor policy, the National Labor Relations Board (NLRB) issued a decision in August 2015 that expanded the definition of employer to include those who have "indirect" or even "potential" control over practically any employment decision. This followed a decision by NLRB General Counsel Richard Griffin who determined McDonald's Inc. was a joint employer with various franchises.

Also in August 2015, news reports revealed a draft memorandum to expand joint employer liability for workplace safety and health violations. The committee wrote to Secretary of Labor Thomas Perez in October 2015 to request information on this proposed change to health and safety enforcement. In a written response on November 18, 2015, the department denied any new enforcement guidance had been created and stated the "Department did not coordinate with the [NLRB]" in preparing the draft memorandum. 

However, on January 13, 2016, the committee received new information which calls into question the veracity of the department's previous assurances, including emails between department and NLRB officials expressing a desire to "compare notes" on joint employer policies. The committee has since renewed its request for all documents, communications, and information related to this matter. The full letter and more information on the committee's oversight are available here.

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