List of Nine High Priority Regulations of Concern

Transcription

1 List of Nine High Priority Regulations of Concern Issue Revision of the Ozone National Ambient Air Quality Standard Greenhouse Gas Emissions Regulations Background: EPA is considering whether to lower the current 75 ppb ozone NAAQS (established in 2008) to a level within the range of ppb. EPA is obligated to issue a final rule by October 1, 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. At the lower end of the range, EPA s proposed regulation likely will be one of the most expensive environmental rules ever adopted. Requested Action: Maintain the existing 75 ppb standard. The states have not fully implemented the 2008 standards. States and industry could find themselves in the untenable position of working toward attainment with both the 2008 standard and an even tighter standard at virtually the same time. For this reason, EPA should maintain the current 75 ppb standard until the next review. In the meantime, the issues associated with background, including Asian transport, stratospheric intrusions and natural background can better be addressed through research and agency rulemaking. Background: EPA has proposed carbon emissions standards for both new and existing electric generating units. Requested Action: EPA needs to reconsider its assumptions regarding electric generating unit efficiency potential; the ability of natural gas combined cycle power plants to reach 70% capacity factors; the time necessary to permit and build pipeline supply infrastructure and transmission capacity; and whether the interim 2020 targets are achievable. EPA also needs to build in additional flexibility regarding the timing of mandated carbon reductions and consider their feasibility as well as the cost of achieving these reductions. Most importantly, EPA should build into the final regulation credit for those states that have taken early action to reduce carbon emissions and a reliability relief mechanism to ensure that reliability is not compromised if EPA assumptions prove to be incorrect. Page 1

2 New Source Review Under the Clean Air Act 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 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. 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. Page 2

3 Fair Pay and Safe Workplace Executive Order (EO 13673) DOL Proposed Definition of Fiduciary Under ERISA Open Internet/FCC Net Neutrality Regulation 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 will be submitting a written response to the proposed guidance outlining recommendations on how to improve implementation of existing federal regulations without creating a new and unnecessary bureaucracy. Background: The Department of Labor (DOL) released a proposal that 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 Federal Communications Commission (FCC) has determined that rules developed to regulate landline telephone networks will also apply to internet services. Requested Action: 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. Page 3

4 List of 37 Additional Regulations of Concern Issue Clean Water Act Definition of Waters of the United States EPA Assessment of Chemical Risk Ethanol RFS Mandate Hydraulic Fracturing Keystone XL Pipeline Project Methane Emissions Reduction Oil & Natural Gas Leasing Energy & Environment 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. 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 June 10, 2015, the Environmental Protection Agency published in the Federal Register proposed Renewable Fuel Standard (RFS) program standards for 2014, 2015 and 2016 and biomass- based diesel volumes for 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 announced that it intends to propose a rulemaking on disposal of fracturing water and fluids from shale gas extraction operations. EPA also plans to propose a rulemaking on the disposal of wastewater from coal bed methane operations. The Department of the Interior has finalized regulations regarding hydraulic fracturing on federal lands. The pipeline requires a Presidential Permit, coordinated by the State Department, because it would cross the U.S.- Canada border. To date, it has not been approved, despite passing extensive environmental review. The Environmental Protection Agency (EPA) is expected to initiate rulemaking 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. EPA also is expected to consider strengthening its greenhouse gas reporting program to require methane emissions reporting in all segments of the industry. The Department of the Interior, the Department of Transportation and the Department of Energy also are expected to initiate rules addressing methane emissions. 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. Page 4

5 Administrative Proceedings Capital Requirements & Surcharges Conflict Mineral Disclosure Rule Over- the- Counter Derivatives PCAOB Rulemaking Physical Commodities Activities of Financial Holding Companies Systemically Important Financial Institutions & Global Systemically Important Bans Basel III Requirements FBAR Reporting Requirements CEO Pay Ratio Disclosure Pay Versus Performance Financial Services & Capital Markets Reform The Dodd- Frank Wall Street Reform and Consumer Protection Act authorizes the Securities and Exchange Commission to seek monetary penalties in administrative proceedings brought against non- regulated entities. The Dodd- Frank Wall Street Reform and Consumer Protection Act requires the Federal Reserve to adopt rules to address capital requirements and surcharges for banks. 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. Derivatives regulations do not fully exempt end- users that pose no systemic risk. For example, end- users that utilize centralized treasury units to conduct trades are not exempt. The Public Company Accounting Oversight Board (PCAOB) is a non- governmental entity with regulatory jurisdiction over audit firms and subject to Security Exchange Commission oversight that does not routinely apply rigorous cost- benefit analysis. Many end- user companies rely on financial holding companies to make markets in physical and financial commodities. Rules contemplated by the Federal Reserve could reduce or eliminate end- user options. Section 165, Dodd- Frank Wall Street Reform and Consumer Protection Act: The enhanced prudential standards for systemic financial institutions do not sufficiently correspond to actual market risk. Nor do they properly balance between the need for financial stability and promoting economic growth. U.S. implementation of capital rules has been inconsistent with other jurisdictions, and it requires continuous review of every product offered and every client served. Foreign Bank and Financial Accounts (FBAR) rules require duplicate reporting of bank accounts in many instances. For example, under current regulations, employees (even employees of publicly traded companies) are required to file an FBAR report to report their signature authority over a foreign bank account owned by the company, when that same foreign bank account will also be reported in the company s FBAR. Corporate Governance The Dodd- Frank Wall Street Reform and Consumer Protection Act 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. Section 953(a) of the Dodd- Frank Wall Street Reform and Consumer Protection Act 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. Page 5

6 Food Labeling: Revision of Nutrition Facts Labels and Serving Sizes Removal of PHOs From GRAS List 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 Business Disruption (Work Authorization Extension) 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 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. 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 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. Page 6

7 Duration of Foreign Student Status (OPT Extension) 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) Presidential Memorandum on Updating and Modernizing Overtime Regulations Pension Funding re: Pension Protection Act Electronic Logging Devices and Hours of Service Minimum Training Requirements for Entry Level Commercial Motor Vehicle Operations 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 regulatory limit, which is not required by statute, forces foreign graduates of U.S. universities to depart the United States before they can fully transition to the U.S. workforce. Government regulations unnecessarily count 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 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. Department of Homeland Security regulations do 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. Labor The memorandum lays out a process for the Department of Labor to address overtime pay protections that are contained in the Fair Labor Standards Act. While overtime rules should be updated and modernized, doing so requires more than increasing the salary bar. Retirement Security The Pension Protection Act of 2006, Pub. L , 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. Transportation 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. Page 7

8 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. Page 8