Summary of NADCA Government Affairs Activity – September 2011

NADCA Objects to Proposed Changes to Persuader Rule by Labor Department
In September, NADCA signed onto comments with over 200 other trade associations citing its opposition to a proposed rule that would expand greatly what information employers and their labor relations consultants must report to the Department of Labor. The proposed revisions to the regulations would narrow the "advice exception" to the law's disclosure and reporting requirements -- imposing extensive and sweeping new reporting obligations on employers who would utilize the expertise of outside consultants, attorneys or other professionals when addressing labor relations issues. If the “advice exception” is indeed narrowed, employers will need to report the details of these third-party relationships regardless of whether the third-parties have any contact with employees. The comment period closed on September 21.

House of Representatives Passes Bill to Limit NLRB's Authority
On September 15, the House of Representatives passed The Protecting Jobs From Government Interference Act (H.R. 2587) by a vote of 238-186 – mainly along party lines. The bill would prohibit the National Labor Relations Board (NLRB) from ordering any employer to close, relocate, or transfer a business under any circumstance.

The measure is aimed, in part, at stopping the NLRB from proceeding with its complaint against the Boeing Co. with respect to the opening of its new South Carolina facility. A similar bill (S. 1523), introduced by Sen. Lindsey Graham (R-SC) is pending in the Senate. The Boeing case is currently proceeding before an NLRB administrative law judge in Seattle. NADCA supported the legislation and signed onto a letter with over 250 trade associations urging lawmakers to approve H.R. 2587.

House Lawmakers Focus On Blocking Regulations
House Republican leaders issued a list of key regulations to roll back, citing administration estimates that seven big new rules would cost more than $100 billion a year. These included tighter pollution controls on coal-fired power plants (Utility MACT), commercial boilers (Boiler MACT), cement plants (Cement MACT), particulate matter dust (PM 2.5-not yet released), and greenhouse gases. The White House recently scuttled the EPA ozone standards but said it is holding firm on other EPA air-pollution rules.

NADCA is very concerned that the slew of upcoming rules which could lead to increased fuel and energy costs for die casters. In addition to the repeal of specific regulations, the regulatory relief agenda will include fundamental and structural reform of the rule-making system through legislation like the REINS Act, the Regulatory Flexibility Improvements Act, and reform of the Administrative Procedures Act. All three bills, supported by NADCA, are expected on the floor in late November and early December. NADCA will continue to advocate in favor of these various regulatory reform pieces of legislation as they move forward this fall.

House Approved Legislation Delaying EPA Rules on Power Plant Emissions
On September 23, 2011, the House approved the Transparency in Regulatory Analysis of Impacts on the Nation Act of 2011 (TRAIN Act) (H.R. 2401). It will require a federal interagency committee to analyze the cumulative impacts of a number of major regulations recently issued by EPA, including two of the agency’s most costly new rules targeting coal-fueled power plants - the Utility MACT rule and the Cross-State Air Pollution Rule (or “Transport Rule”).

New EPA regulations that specifically target coal-fueled power plants, like the “MACT Rule” and the “Transport Rule”, will significantly raise energy prices on die casters and impact the reliability of America’s electricity supply. NADCA joined over 200 organizations in a letter urging passage of the TRAIN Act that was sent to every member of the House. The White House issued a veto threat on the TRAIN Act.

House to Vote on Bills to Delay EPA Regulations on Cement and Boilers
The House is scheduled to vote Wednesday, Oct. 5 on two pieces of legislation aimed at delaying the Environmental Protection Agency (EPA) rules related to emissions from cement plants and commercial boilers. One bill, the Cement Sector Regulatory Relief Act (H.R. 2681), would require the EPA to rewrite three new proposed regulations for the cement industry.

The second measure, the EPA Regulatory Relief Act (H.R. 2250), extends the compliance time for commercial and industrial boilers, and requires EPA to take another 15 months to "re-propose" four rules affecting boilers. Although House Republicans realize their efforts at making these proposals law are slim, the debate gives them a platform to bash EPA’s regulations as “job killers.”

In the Senate, Sen. John Barrasso (R-WY), chief sponsor of the cement bill, will try to include his bill on the China Currency manipulation bill making its way through the Senate. NADCA signed onto a support letter for Boiler MACT legislation that was sent to all members of the House and Senate with 300 signatories.

NADCA Supports Bipartisan Regulatory Reform Bill
Sens. Rob Portman (R-OH) and Mark Pryor (D-AR), Rep. Collin Peterson (D-MN), and Lamar Smith (R-TX) introduced a bipartisan measure to restore needed checks and balances to the regulatory process. The bill, the Regulatory Accountability Act, is the most comprehensive attempt to update the rulemaking process in over 50 years.
NADCA along with more than 50 other business organizations sent a letter to the bill’s four co-sponsors expressing their support for the measure. The legislation would streamline and bring transparency to the regulatory process by:

• Increasing public participation in shaping the most costly regulations before they are proposed and requiring agencies to choose the least costly option unless they can demonstrate a need to protect public health, safety, or welfare.
• Providing for on-the-record administrative hearings for the most costly regulations to ensure that agency data is well tested and reviewed.
• Restricting agencies’ ability to issue interim final regulations where no comments are taken before a regulation takes effect and providing for expedited judicial review of such an approach.

The proposed bill would only impact new rules, which means if it were enacted; it would capture most of the health care and new environmental rules. The measure is scheduled to reach the House floor for a vote by December.

Tax Reform in Super Committee Deliberations
While the Super Committee met in September in extended closed-door sessions, no details have emerged on any progress toward an agreement. Whether, and to what degree, tax provisions will be included in any final agreement remains an open question. Although the Super Committee continues to be briefed on tax reform options, it remains unlikely that they will be able to include fundamental reform in any agreement given the truncated timeframe of its proceedings. Other possible options include setting up a process whereby fundamental reform could be compelled next year, or including various piecemeal tax provisions in a final product and leaving reform to be dealt with at a later point in time. However, disagreements over policy outcomes and revenue targets continue to persist. Hearings on fundamental tax reform continue in both the House and Senate.

OSHA Makes Changes to its Inspection Targeting Plan
The Occupational Safety and Health Administration (OSHA) issued its annual inspection plan under its Site-Specific Targeting 2011 (SST-11) - http://www.osha.gov  - program to help the agency direct additional enforcement resources to employment sites labeled high-hazard workplaces, where the agency believes the highest rates of injuries and illnesses occur.

The SST program is OSHA’s main programmed inspection plan for non-construction workplaces that have 20 or more workers. High-hazard workplaces identified in the SST program reported above-average work-related injury and illness rates, based on data collected from a 2010 OSHA survey of 80,000 larger establishments in selected high-hazard industries. Establishments are randomly selected for inspection from a primary list of 3,700 manufacturing, non-manufacturing and nursing and personal care facilities.

Two changes have been made to this year’s SST program. In 2010, only those establishments in the selected industries with 40 or more employees were subject to inspections under the SST plan; this year, that number has been reduced to 20 or more. An evaluation study measuring the program’s impact on future compliance with OSHA standards has also been introduced for the 2011 program.

In addition to the SST program, OSHA maintains both national and local emphasis inspection programs to target high-risk hazards and industries. OSHA currently has 14 National Emphasis Programs that focus inspections on various industry sectors and safety hazards, such as amputations, lead, process safety management, recordkeeping, and combustible dust. OSHA also has approximately 140 Regional and Local Emphasis Programs (REPs and LEPs).

OSHA Issues Workplace Violence Directive
OSHA issued a directive on Enforcement Procedures for Investigating or Inspecting Incidents of Workplace Violence. The directive establishes uniform procedures for OSHA field staff for responding to incidents and complaints of workplace violence and conducting inspections in industries considered vulnerable to workplace violence.

Workplace violence is ranked among the top four causes of death in workplaces during the past 15 years. According to the Bureau of Labor Statistics (BLS), more than 3,000 people died from workplace homicide between 2006 and 2010.

Studies have shown that employers who implement effective safety measures can reduce the incidence of workplace violence. These measures include training employees on workplace violence, encouraging employees to report assaults or threats, and conducting workplace violence hazard analyses. Under the OSH Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees.

OSHA’s new Web page on Preventing Workplace Violence and several workplace violence guidance documents to help employers address workplace violence issues is located at this link - http://www.osha.gov/SLTC/workplaceviolence/index.htm

If you have any questions or comments, please feel free to contact Stephanie Salmon or Tim Powers, NADCA Washington Office, 202/783-1080.