List of Ten High Priority Regulations of Concern
Issue
Revision of the
Ozone National
Ambient Air Quality
Standard
Description of Issue
Background: On October 1, 2015, EPA issued a final rule lowering the then
current 75 ppb ozone NAAQS (established in 2008) to a level of 70 ppb. Because
we are approaching natural background levels of ozone, many areas will find
themselves in “nonattainment” status without reasonable tools to come into
compliance. Nonattainment designation acts as a brake on economic activity.
EPA’s regulation likely will be one of the most expensive environmental rules
ever adopted. EPA has proposed changes to the “exceptional events” rule that
currently are undergoing OMB review. EPA also developed a white paper on
issues associated with background levels of ozone and has held a public work
shop on the issues associated with background levels of pollution.
Requested Action: The current “exceptional events” rule is unworkable. EPA
should finalize reforms to the “exceptional events” rule by reducing regulatory
burdens on the states. In addition, EPA should utilize its existing authority to allow
states to exclude emissions associated with background, including Asian transport,
stratospheric intrusions and natural background from the data used in determining
attainment status.
Greenhouse Gas
Emissions Regulations
Background: On August 3, 2015, EPA issued final rules limiting carbon
emissions from both new and existing electric generating units. The rule
regulating existing electric generating units has been challenged by more than
half the states. A stay on the regulations has been issued pending resolution of
litigation. This litigation is still pending in the D.C. Circuit Court of Appeals.
August 16, 2016
Page 1
Issue
Description of Issue
New Source Review
Under the Clean Air Act
Background: Under the Clean Air Act, “new” sources are subject to more
stringent emissions limitation requirements than existing sources. Under the New
Source Review (NSR) permitting program, both new and, in some cases, modified
stationary sources of air pollutants, e.g., power plants and factories must obtain
NSR permits that limit the source’s air pollutant emissions. “Major modifications”
to major stationary sources trigger a requirement for New Source Review. Under
EPA regulations, a major modification includes any physical change to or change
in the method of operation of a major stationary source that would result in a
significant net emissions increase of a regulated pollutant. While “major
modification” excludes routine maintenance, repair and replacement, these terms
are not clearly defined and have been interpreted differently by EPA over time.
Litigation surrounds this program, with companies now deterred from upgrading
existing equipment, even when the upgraded plant would be more efficient or
reliable. A plant that operates more reliably and productively may produce both
more output and more emissions, which could trigger NSR review, even though
the emissions per unit of output go down.
Forty Percent Excise
Tax on Health Care
Benefits Under the
Affordable Care Act
EEOC Actions Regarding
Wellness Programs
Employer Reporting
Requirements Under
the Affordable Care Act
Requested Action: The NSR permit program must be replaced or reformed in
order to eliminate the disincentive to modernize facilities and to allow routine
maintenance without the threat of NSR enforcement action.
Background: The Affordable Care Act (ACA) imposed a 40 percent excise tax on
health insurance benefits that exceed a statutorily determined level.
Requested Action: Support elimination of the excise tax.
Background: The Equal Employment Opportunity Commission (EEOC) has
proposed standards for employer-sponsored wellness plans that differ from those
established under the Affordable Care Act (ACA) and the final wellness rule,
signaling an inconsistent approach to enforcement of the underlying laws.
Requested Action: Establish an Administration-wide, coordinated, consistent
policy with respect to ACA-encouraged, employer-sponsored wellness plans.
Background: The Affordable Care Act requires every health insurance issuer,
sponsor of a self-insured health plan and other entity that provides minimum
essential coverage to file annual returns reporting information for each
individual for whom minimum essential coverage is provided. The law also
requires that every applicable large employer file a separate return with the
Internal Revenue service – and provide a report to each covered employee—that
reports the terms and conditions of the health care coverage provided to the
employer’s full-time employees for the year. These reporting requirements are
extremely burdensome, costly and are of minimal value.
Requested Action: Streamline or eliminate ACA employer reporting
requirements.
August 16, 2016
Page 2
Issue
Fair Pay and Safe
Workplace Executive
Order (EO 13673)
Description of Issue
Background: The Department of Labor guidance on Executive Order 13673, Fair
Pay and Safe Workplaces, is duplicative of existing laws and creates a new and
unnecessary layer of bureaucracy. These new requirements will lead to new
reporting requirements exceeding $100 million on an annual basis.
Requested Action: Withdraw the proposed guidance and implement existing
rules to ensure compliance with federal and state labor laws. In the meantime,
BRT has submitted written comments to the proposed guidance outlining
recommendations on how to improve implementation of existing federal
regulations without creating a new and unnecessary bureaucracy.
DOL Proposed
Definition of Fiduciary
Under ERISA
Presidential
Memorandum on
Updating and
Modernizing Overtime
Regulations
EEOC Proposal on
Reporting Pay Data
Background: The Department of Labor’s (DOL) proposed rule would make
sweeping changes in the rules governing investment fiduciaries under the
Employee Retirement Security Act (ERISA).
Requested Action: The time that DOL has provided for consideration, finalization,
and implementation of this far-reaching and complex new interpretation of the
law is inadequate. If the stated objective of providing better investment advice to
retirement plans is to be achieved, the DOL proposal will require substantial
revisions, simplification, additional iterations, and significantly more time for
implementation.
Background: The Department of Labor’s proposed rule on overtime pay
protections would determine which employees are eligible for overtime pay. The
proposed salary threshold would be raised to $50,440 per year, extending it to
substantially more salaried employees.
Requested Action: Modernize the overtime pay rules to include more than the
salary test.
Background: The EEOC has proposed a revision to the Employer Information
Report to include collecting pay data from employers by adding data on pay ranges
and hours worked to the information already reported by race, ethnicity, sex, and
job category.
Requested Action: EEOC should identify the value-added to reporting the
additional data (Note: BRT will be submitting written comments to the EEOC by the
April 1, 2016 deadline).
August 16, 2016
Page 3
List of 32 Additional Regulations of Concern
Issue
Description of Issue
Energy and Environment
Clean Water Act
Definition of “Waters of
the United States”
The Environmental Protection Agency (EPA) has finalized regulations that would
expand jurisdiction of the federal government under the meaning of the term
“waters of the United States.” While EPA maintains that it is only clarifying
existing policy, the final rule has generated concern from the agriculture,
energy, manufacturing and construction industries that current non-regulated
practices will become subject to EPA jurisdiction and new permit requirements.
This rule currently is the subject of a judicial stay. Litigation is still pending.
EPA Assessment of
Chemical Risk
The National Academy of Sciences (NAS) has criticized the science underpinning
the Environmental Protection Agency’s (EPA) risk assessment process, conducted
under EPA’s Integrated Risk Information System program, which develops
estimates of chemical risk used both by EPA and state environmental agencies to
set regulatory standards.
On November 30, 2015, the Environmental Protection Agency finalized the volume
requirements under the Renewable Fuel Standard (RFS) program for 2014, 2015
and 2016 for cellulosic biofuel, biomass-based diesel, advanced biofuel, and total
renewable fuel. EPA also finalized the volume requirements for biomass-based
diesel for 2017.
Multiple federal agencies are considering regulating hydraulic fracturing. The
Environmental Protection Agency (EPA) has finalized four new regulations for the oil
and natural gas industry, including the first federal air standard for wells that are
hydraulically fractured. In addition, EPA has finalized rules regarding disposal of
fracturing water and fluids from shale gas extraction operations. The Department of
the Interior has finalized regulations regarding hydraulic fracturing on federal lands.
The Department of the Interior rules have been found to be beyond the
Department’s authority by a federal district court judge. The case currently in on
appeal.
The President announced that he will not issue a Presidential Permit for the
Keystone XL pipeline based on a determination that it would not be in the national
interest.
The Environmental Protection Agency (EPA) in May 2016 finalized rules to set
standards for methane and volatile organic compound emissions from new and
modified oil and gas production sources, natural gas processing plants and
transmission sources. These rules are likely to be expensive and may preclude the
incorporation of newer, more cost-effective future technology unless they are
modified. These rules duplicate voluntary industry efforts and may conflict with
rules the Department of the Interior is developing to address methane emissions on
federal lands. In conjunction with issuance of final rules for new and modified oil
and gas production sources, EPA announced the first steps in the process to control
emissions from existing sources by issuing for public comment an Information
Collection Request that requires companies to provide the information that will be
necessary for EPA to regulate methane emissions from existing oil and gas sources.
Ethanol RFS Mandate
Hydraulic Fracturing
Keystone XL Pipeline
Project
Methane Emissions
Reduction
August 16, 2016
Page 4
Issue
Oil & Natural Gas
Leasing
Description of Issue
Energy and Environment
Many promising offshore and onshore areas remain off limits to leasing, exploration
and development. In addition, permitting times for leasing federal lands have been
increasing.
Corporate Governance
Shareholder Proposals
CEO Pay Ratio
Disclosure
Conflict Mineral
Disclosure Rule
Pay Versus
Performance
Clawbacks
Hedging
Securities and Exchange Commission rules require companies to include in their
proxy statements proposals submitted by shareholders who own relatively little
company stock. These rules permit companies to exclude these proposals only in
very limited situations.
The Securities and Exchange Commission has adopted final rules under Section
953(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which
directs the Securities and Exchange Commission to promulgate rules requiring
companies to calculate and disclose CEO pay as a ratio of the median employee’s
pay. Most public companies will be required to include the ratio and related
disclosure in their 2018 proxy statements (with respect to 2017 compensation).
The Securities Exchange Commission adopted rules in August 2012 that require
public companies to disclose annually if their products contain “conflict minerals”
originating in the Democratic Republic of Congo or adjoining countries. Aspects of
the rule have been challenged in the courts since final rules were adopted; however,
most of the disclosure requirements under the rule remain in place to date.
The Securities and Exchange Commission has issued proposed rules under Section
953(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which
requires the Securities and Exchange Commission to adopt a rule requiring public
companies to disclose the relationship between executive compensation and the
financial performance of the company. The proposed rule is highly prescriptive and
would require companies to include an additional table in their proxy statements
addressing the relationship between company and peer group total shareholder
return (TSR) and executive compensation.
The Securities and Exchange Commission has issued proposed rules under Section
954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which
requires the Securities and Exchange Commission to direct the exchanges to adopt
rules requiring listed companies to adopt and disclose a policy providing that, in the
event the company is required to prepare an accounting restatement due to
material noncompliance with any financial reporting requirement, the company will
recoup from any current or former “executive officers” any “excess incentive-based
compensation” paid during a three-year look-back period.
The Securities and Exchange Commission has issued proposed rules under Section
955 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which
requires the Securities and Exchange Commission to adopt a rule that requires
companies to disclose in their annual proxy statement whether employees or
directors or their designees may purchase financial instruments that are designed to
hedge or offset any market value decrease of equity securities granted as
compensation or held directly or indirectly by the employees or directors.
August 16, 2016
Page 5
Issue
Food Labeling: Revision
of Nutrition Facts Labels
and Serving Sizes
Removal of PHOs From
GRAS List
Description of Issue
Food
In 2014, the Food and Drug Administration launched two proposed regulations
to significantly revise the labels and adjust serving sizes for the first time in more
than 20 years.
In November 2013, the Food and Drug Administration (FDA) issued a preliminary
determination that partially hydrogenated oils (PHOs) were no longer
considered “safe” under GRAS (Generally Recognized as Safe), and would require
a food additive petition to permit any level of PHOs in food. In June, FDA
adopted final rules phasing out PHOs.
Health Care
Data Sharing
Requirements with the
Exchanges
Definition of 60 Percent
Actuarial Value
Definition of Essential
Benefits
Health Insurance Tax,
Pharmaceutical Tax and
Medical Device Tax
HIPAA Workplace
Wellness
Uniform Summary Plan
Documents
By including an “Employer Coverage Tool” in the application for insurance under
the exchanges, the federal government is effectively requiring employers to
verify employee eligibility for tax credits and cost-sharing reductions with respect
to health care exchanges.
Employer-sponsored plans, under the Affordable Care Act, must provide minimum
value. Employers may face a penalty if their plan does not provide minimum
value and an employee is eligible for a tax credit through an exchange.
The Affordable Care Act requires that individual and small group plans – both
inside and outside of the Exchange – cover essential health benefits (EHBs). EHBs
are defined by states and cover 10 categories of care, such as trips to the
emergency room, prescription drugs and prenatal care.
The Affordable Care Act (ACA) created an annual fee to be paid to the Internal
Revenue Service by manufacturers and importers of brand name
pharmaceuticals plus a tax on health insurance companies operating in the fully
insured marketplace. The ACA also created a new 2.3 percent excise tax on
medical devices to be paid by manufacturers and importers.
The final rule was published June 3, 2013, and potential future guidance could
follow from the Equal Employment Opportunity Commission (EEOC). Employers may
continue rewarding employees for participation in a wellness program. The final
rule establishes two subcategories of health-contingent programs — activity-only
wellness programs and outcome-based wellness programs — and limits the ability
of employers to offer employees outcome-based wellness plans.
In February 2012, the Departments of Labor, Health and Human Services, and
Treasury released a final rule requiring all insurers and plan administrators to
provide enrollees with a four-page, uniform summary of each plan benefit offered.
Immigration
Business Disruption
(Work Authorization
Extension)
The Department of Homeland Security filing procedures do not allow a worker to
apply to extend his or her work authorization more than 120 days before its
expiration. Because government processing times exceed 120 days, many
workers lose their authorization to work and companies face business disruption.
Duration of Foreign
Student Status (OPT
Extension)
Department of Homeland Security regulations limit F-1 Optional Practical Training
(OPT) to 12 months (29 months in case of Science, Technology, Engineering, or
Math degree holders). This forces foreign graduates of U.S. universities to depart
the United States before they can fully transition to the U.S. workforce. A current
proposal to extend the OPT may offer some relief but would impose significant
new paperwork obligations on employers.
August 16, 2016
Page 6
Issue
Description of Issue
Immigration
Green Card Backlog
(Exempt Spouses
and Children)
Inconsistent Business
Visa Decisions
(Deference to Prior
Decisions)
Retaining Foreign
Students (Dual Intent)
Retaining Foreign
Workers (Visa Bulletin)
Current government policy unnecessarily counts spouses and dependents toward
the annual numerical green card limit. This results in lengthy green card wait
times and makes it difficult to retain high-skilled workers.
Current government policy allows any immigration official to reverse, without
explanation, the earlier decision of another immigration official. This creates
uncertainty for businesses when seeking to retain high-skilled workers.
Current government policy does not allow a foreign student to pursue a green
card, even when a sponsoring employer has documented that there are no
available U.S. workers. This makes it more difficult for foreign graduates of U.S.
universities – who have gained valuable skills – to remain and work in the U.S.
Overly restrictive interpretations regarding the immigrant visa allocation process
and the availability of green card numbers prevent hundreds of thousands of
workers from filing green card applications. This prevents employees from
changing employers or advancing their careers with the employers that sponsor
them for permanent resident status.
Retirement Security
Pension Funding re:
Pension Protection Act
The Pension Protection Act of 2006, Pub. L. 109-280, made significant changes to
the funding requirements for defined benefit pension plans, as well as changes
that affected most other types of pensions. The law also placed certain
restrictions on changes to pension plans that would increase their benefits
without funding changes.
Open Internet/FCC Net
Neutrality Regulation
The Federal Communications Commission (FCC) has determined that rules
developed to regulate landline telephone networks will also apply to internet
services.
Telecommunications
Support Congressional efforts to enact new legislation that would: authorize the
FCC to take enforcement action only in response to specific complaints and not
under Title II of the Communications Act; require internet service providers to
operate transparently, prohibit blocking, “throttling” and paid prioritization;
permit ISPS to use their own judgment in making reasonable network management
decisions; and preserve consumer choice and ISPs’ ability to offer service other
than broadband Internet.
Transportation
Electronic Logging
Devices and Hours of
Service
Minimum Training
Requirements for Entry
Level Commercial
Motor Vehicle
Operations
This Federal Motor Carrier Safety Administration rule would specify
requirements for electronic devices to improve compliance with hours-of-service
limitations for truck drivers.
This Federal Motor Carrier Safety Administration rule, which was required to be
issued by October 1, 2013, would require behind-the-wheel and classroom training
for persons who must hold a commercial driver’s license to operate commercial
motor vehicles.
August 16, 2016
Page 7
Issue
Description of Issue
Transportation
Positive Train Control
In 2008, Congress mandated that positive train control be put into service by
the end of 2015 on rail lines used to transport passengers or toxic-by-inhalation
materials. In the Surface Transportation Extension Act of 2015 (H.R. 3819)
Congress extended the compliance deadline from December 31, 2015 to
December 31, 2018.
August 16, 2016
Page 8