Regulatory and Legal Reform

The outgoing Biden administration is undermining a U.S. manufacturer in its high-stakes dispute with the Mexican government by “seeking to erode investor-state dispute settlement (ISDS) protections under U.S. trade agreements with Colombia, Mexico and Canada,” a recent Wall Street Journal (subscription) editorial revealed.

The problem: ISDS protections safeguard U.S. investments from foreign governments seeking to interfere with or appropriate them, as the predicament of Vulcan Materials Company shows.

• Vulcan has been embroiled in a dispute with the Mexican government since 2018, when the government shut down some of its quarrying operations, according to Chairman and CEO J. Thomas Hill.
• The unwarranted shutdown forced the company to pursue arbitration under NAFTA, but the situation only got worse—former Mexican President Andrés Manuel López Obrador ordered all of Vulcan’s operations to cease in May 2022, including at a deepwater port the company built in the early 1990s.
• Now, the company is expecting its second round of arbitration to be decided by mid-2025—unless the Biden administration guts the investor protections in the U.S.–Mexico–Canada Agreement, handing a victory (and a key port) to the Mexican government.

Congressional fury: Both Congress and Vulcan itself learned of the administration’s efforts via The Wall Street Journal editorial, instead of directly from the Office of the U.S. Trade Representative. This is particularly egregious because the USTR is required to consult with Congress on investment obligations in trade deals.

• Bipartisan members of Congress have expressed their outrage, with Sen. Katie Britt (R-AL) writing in The Wall Street Journal (subscription) that “the Biden administration is negotiating away the due process of Americans, including my constituents, in the waning days of this lame-duck administration.”
• On Dec. 20, three bipartisan senators joined Sen. Bill Hagerty (R-TN) in condemning the USTR’s efforts on the Senate floor. “If Mexico is allowed to target, without repercussion, a company like Vulcan, one that employs thousands of Americans, and has operated responsibly in Mexico for decades, that means no American business is safe in Mexico,” Sen. Hagerty said.
• Sens. Tim Kaine (D-VA) and Tommy Tuberville (R-AL) joined both Sens. Britt and Hagerty in calling on Congress to pass the Defending American Property Abroad Act, which would impose penalties on Western Hemisphere countries that unlawfully seize the assets of American firms.

The NAM says: The NAM is calling on the USTR to halt this effort immediately, said NAM Vice President of International Policy Andrea Durkin.

• “ISDS has a legitimate role in U.S. trade policy to ensure our manufacturers receive fair and equitable treatment by foreign governments and to protect against egregious expropriation or nationalization of U.S. investments without adequate and effective compensation.”
• “U.S. manufacturers are entitled—at a minimum—to be consulted about any proposed changes that would impact their right to due process in ongoing cases.”

The Biden administration’s ban on new offshore oil and gas drilling in most American coastal waters “sets a bad precedent for the country,” the NAM said Monday.

What’s going on: The decision, which comes just two weeks before President Trump takes office, applies to “new drilling off the entire East Coast, as well as California, Oregon and Washington state” and “some drilling off Alaska’s coast in portions of the Northern Bering Sea and in the eastern Gulf of Mexico” (The Hill).

• Though there is currently no active drilling in the Atlantic and most U.S. offshore oil and gas production comes from the central and western Gulf of Mexico, the area placed under the ban is the largest ever “formally taken off the table for drilling by a president.”
• In response, President Trump on Monday said he would “unban it immediately” (Associated Press).

Why it’s a problem: The moratorium could prove harder for Trump to undo than other 11th-hour moves by Biden. That’s in large part because of the Outer Continental Shelf Lands Act, which gives U.S. presidents the right to block drilling in certain areas but not the right to reinstate it.

• However, Congress could work with the new president to undo the move—and it should, Timmons said. “Manufacturers are committed to working with Congress and [President Trump] to scale back this harmful decision that undermines American energy dominance.”

Several last-minute regulatory actions by the outgoing Biden Treasury Department are “clear example[s] of regulatory overreach” that should be withdrawn immediately, the NAM told the Biden administration recently.

What’s going on: The Treasury Department has proposed new guidance and regulations that, if finalized, would change the IRS’s treatment of related-party transactions, particularly as they relate to partnerships.

• The proposed standards would impose significant reporting obligations on manufacturers while also drastically changing the tax treatment of these commonplace payments.
• Additionally, Treasury has proposed new rules governing “dual consolidated losses” that would make it more difficult for manufacturers operating in multiple jurisdictions around the world to utilize their tax losses appropriately.

Why it’s problematic: The proposed standards are outside Treasury’s statutory authority and are “unlikely to withstand inevitable judicial scrutiny,” the NAM told the agency at the end of 2024.

• In December, the NAM laid out the legal issues endemic to Treasury’s proposals, identifying both substantive and process-related issues that undermine each action.
• The submission builds on manufacturers’ comments to the agency on the proposals themselves: The NAM said in July that the related-party guidance was “wholly unauthorized, unsupported and unsupportable” and in August told the agency that the related-party rules “would impose an undue burden on taxpayers that outweighs any potential compliance benefit.”
• It added in October that the dual consolidated loss proposal was “internally inconsistent” and “fail[ed] to reflect reasoned decision-making.”

Regulatory onslaught: The NAM has been at the forefront of pushing back on the Biden administration’s regulatory onslaught, which costs manufacturers upward of $350 billion every year.

• Shortly after the 2024 presidential election, the NAM led a group of more than 100 manufacturing associations in urging the incoming Trump administration to “address burdensome regulations that are stifling investment, making us less competitive in the world, limiting innovation and threatening the very jobs we are all working to create right here in America.”

What’s next: The NAM is calling on the Biden Treasury Department not to finalize these proposals in the administration’s final days, but rather to pause or withdraw the rules in question until the Trump administration takes office.
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Manufacturers support the policy recommendations laid out in the House of Representatives’ newly released report on artificial intelligence, the NAM said Tuesday.

What’s going on: The Bipartisan House Task Force Report on Artificial Intelligence contains AI-related recommendations for implementation by Congress.

• Drafted by the House AI Task Force—12 Republicans and 12 Democrats—the 273-page document “highlights America’s leadership in its approach to responsible AI innovation while considering guardrails that may be appropriate to safeguard the nation against current and emerging threats,” the task force’s co-chairs, Reps. Jay Obernolte (R-CA) and Ted Lieu (D-CA), wrote in a letter to House Speaker Mike Johnson (R-LA) and House Minority Leader Hakeem Jeffries (D-NY) at the beginning of the report.

The details: The task force report includes many recommendations that the NAM supports, including the following:

• Promote innovation: “As the global leader in AI development and deployment, the United States is best positioned to responsibly enable the potential of this transformative technology for all. To maintain this leadership and enable the U.S. economy to harness the full benefits of AI, policymakers should continue to promote AI innovation.”
• Safeguard against harm: “A thoughtful, risk-based approach to AI governance can promote innovation rather than stifle it.”
• Plan for power needs: “Planning properly now for new power generation and transmission is critical for AI innovation and adoption.”
• Develop an AI-ready workforce: “Successful collaborations between educational institutions, government and industries should effectively align education and workforce development with market needs and emerging technologies.”
• Protect privacy: Congress should “[e]nsure privacy laws are generally applicable and technology-neutral.”
• Make compliance feasible: Lawmakers should ensure that AI regulatory compliance is not unduly burdensome for small businesses
• Increase cooperation: Bolster collaboration between the government, industry and academia to boost innovation and expand markets.

NAM alignment: In May, the NAM released “Working Smarter: How Manufacturers Are Using Artificial Intelligence,” its own report on AI’s deployment in the manufacturing sector and an accompanying list of suggested policy actions for Congress to take.

• The NAM briefed legislators on its report in September.

Next steps: The NAM will work closely with policymakers in Congress and the incoming administration to bolster AI innovation in manufacturing, based on shared policy goals.   

Additionally, manufacturers will continue to call on Congress to pass federal data privacy legislation that “preempt[s] state privacy regulations [and] resolve[s] conflicting requirements in different states”—an important issue for the use of AI where the House report does not prescribe a policy solution.

The regulatory onslaught facing manufacturers has “reached a fever pitch” over the past four years, but the incoming administration can turn things around, the NAM and more than 100 other manufacturing associations told President-elect Trump and his Cabinet today.

What’s going on: “You have the opportunity to tackle this challenge by addressing burdensome regulations that are stifling investment, making us less competitive in the world, limiting innovation and threatening the very jobs we are all working to create right here in America,” the groups wrote to the president-elect.

What they said: The letter outlines a pro-manufacturing regulatory agenda based on more than three dozen regulatory actions the administration can take starting on Day One. Key highlights include the following:

• Instituting a “regulatory reset”: The NAM and its partners are calling on the incoming administration to “stop the trend of overreaching regulations that seek to expand agencies’ authority” and instead focus on tailored rulemakings based on robust collaboration with the industry.
• Lifting the LNG export ban: President-elect Trump should undo the Biden administration’s January moratorium on liquefied natural gas export permits. A protracted pause would jeopardize 900,000 jobs and $250 billion in U.S. gross domestic product, according to a recent NAM study.
• Easing the permitting burden: “The United States’ out-of-date permitting laws and procedures are holding back progress and restricting manufacturers’ ability to compete globally,” says the letter. The Trump administration should accelerate the permitting process for critical energy infrastructure, create enforceable deadlines and provide regulatory certainty to manufacturers.
• Reconsidering NAAQS PM2.5 and maintaining the existing NAAQS ozone standard: In February, the Environmental Protection Agency announced an unworkably stringent National Ambient Air Quality Standard for fine particulate matter (PM2.5). The Trump administration should relax the PM2.5 rule and maintain the existing NAAQS for ozone—a standard the European Union has set more than 70% above the current U.S. threshold—when it comes up for review in 2025.
• Replacing unbalanced power plant rules: The Trump administration should replace the EPA’s new rules for existing coal-fired and new natural gas–fired power plants with workable standards.
• Depoliticizing the proxy process: In recent years, the Securities and Exchange Commission has taken steps to empower activist investors and proxy advisory firms. The incoming administration should rescind damaging standards, such as Staff Legal Bulletin 14L, which requires companies to include activist proposals on their proxy ballots, while preserving and protecting much-needed reforms from the first Trump administration, including the landmark 2020 proxy firm rule.

Other asks: The group also urged the new administration to:

• Reverse the trend of overly burdensome and unworkable chemicals regulations, such as the Biden administration’s PFAS rules;
• Take decisive measures to protect manufacturers’ intellectual property rights;
• Narrow the scope of proposed cyber incident reporting requirements; and
• Reconsider the Occupational Safety and Health Administration’s damaging “walkaround” rule and more.

Ready to move forward: America’s manufacturers are committed to a regulatory environment that “truly supports manufacturing, innovation and American prosperity”—and they are “ready to move forward” with the president-elect to “make America’s manufacturing sector unstoppable.” 

Pharmacy benefit managers are driving up health care costs for employers and employees alike—and they must be reformed as soon as possible, Rep. Buddy Carter (R-GA), Sen. James Lankford (R-OK) and other members of Congress said at a bicameral, bipartisan Capitol Hill press conference Wednesday.

What’s going on: Rep. Carter, Sen. Lankford and other lawmakers—including Reps. Mariannette Miller-Meeks (R-IA), Raja Krishnamoorthi (D-IL) and Nanette Barragan (D-CA)—are calling on House and Senate leadership to advance PBM reform legislation in Congress’ year-end lame-duck session.

• The House passed a bipartisan PBM reform bill last December, and seven congressional committees—in both the House and Senate—have approved PBM bills during this Congress.
• The NAM, long a champion of commonsense PBM reform, offered manufacturers’ strong support for the lawmakers’ efforts.

What they said: “Democrats and Republicans [alike] … recognize that PBMs are decreasing the accessibility, the affordability and therefore the quality of health care in America,” said Rep. Carter, who showed the crowd photos of real patients facing difficulties accessing medications due to PBMs.

• “Congress must act before the end of the year to save our constituents’ lives. That’s why I’m leading a bipartisan letter to the House and Senate leadership urging them to prioritize PBM reform during end-of-year negotiations and ensure that the bipartisan efforts we have worked on through the 118th Congress are enacted into law.”
• Added Rep. Miller-Meeks, sponsor of the NAM-backed DRUG Act: “Every American who utilizes prescription medications experiences the impact that PBMs … have on our health care system. Patients everywhere—and our independent pharmacists—deserve a health care system where patients always come first.”

Why it’s important: PBMs often dictate the prices that patients pay at the pharmacy counter—and their business model incentivizes them to increase those prices for their own benefit.

• PBMs take a cut of a drug’s list price and pocket a large portion of rebate savings that are supposed to go back to patients and employers.
• In addition, they operate without transparency into their pricing decisions, making it more difficult for employers to reduce prices or access savings.

Now’s the time: “We want leadership to be able to take [PBM reform legislation] up in the end-of-the-year package,” Sen. Lankford said at the press conference. “We don’t want to tell … patients, ‘Wait another two years and maybe we’ll get into it in the next session.’ Let’s actually get into it in this session.”  

NAM advocacy: The NAM has been at the forefront of the fight for PBM reform. Last month, it launched a seven-figure ad campaign urging the passage of reforms during the lame-duck session.    

The last word: “Manufacturers and manufacturing workers are facing increasing and unsustainable health care costs as a direct result of PBMs,” said NAM Managing Vice President of Policy Chris Netram. “Manufacturers agree with Rep. Carter and the bipartisan, bicameral members of Congress calling for reform: Congress must act urgently—in the lame-duck session—to increase transparency, lower health care costs and protect manufacturing workers.”

Washington, D.C. – Today, the National Association of Manufacturers, along with more than 100 manufacturing associations, sent a letter to President Donald Trump laying out a roadmap for regulatory actions across a wide range of agencies that would boost the manufacturing economy and put a stop to the regulatory onslaught that is costing manufacturers $350 billion each year.

Manufacturers have made the case that unbalanced, unworkable regulations severely impact our ability to grow and create jobs. Today’s letter lays out specific steps the new administration can take to reverse the trend of federal agency overreach—providing much-needed regulatory certainty to manufacturers and empowering the industry to continue to make the long-term investments that drive job creation, growth and economic competitiveness here in the United States.

The letter states, in part:

Dear President-elect Trump,

Right now, regulations are strangling our economy. Manufacturers are shouldering enormous regulatory compliance costs—nearly $350 billion annually, or 12% of our entire sector’s contribution to U.S. GDP. For smaller manufacturers with fewer than 50 employees, these costs can exceed $50,000 per employee each year. This means that a small manufacturer with just 20 employees pays $1 million per year to comply with federal regulations—rather than investing those funds in raises or new jobs.

The regulatory onslaught reached a fever pitch during the Biden administration. Prior to the election, the National Association of Manufacturers surveyed the industry and found a significant decline in optimism among manufacturers, with an unfavorable business climate, particularly taxes and regulations, cited as a primary business challenge by more than 60% of respondents.

You have the opportunity to tackle this challenge by addressing burdensome regulations that are stifling investment, making us less competitive in the world, limiting innovation and threatening the very jobs we are all working to create right here in America.

The letter highlights more than three dozen regulatory actions the Trump administration can take to support manufacturing growth, including the following:

• Liquefied Natural Gas Export Ban: On Day One of your administration, lift the pause on LNG exports through an updated national interest assessment.
• Permitting Reform: Appoint an official within your administration to help coordinate policies across the executive branch to ease the permitting burden. Specifically, your administration should start by prioritizing a reconsideration of the “NEPA Phase 2 Rule” and the current implementation of the permitting reform provisions of the Fiscal Responsibility Act.
• National Ambient Air Quality Standards for Particulate Matter and Ozone: Reconsider and relax the Biden administration’s NAAQS for PM2.5 rule and maintain both the primary and secondary standard for the NAAQS for ozone rule at 70 parts per billion.
• Power Plant Rules: Replace the Environmental Protection Agency’s rule for existing coal-fired and new natural gas–fired power plants with workable standards.
• Proxy Advisory Firms and the Proxy Process: Rescind Staff Legal Bulletin 14L and end the politicization of the proxy process. Additionally, enforce and preserve the 2020 proxy advisory firm rule while taking steps to build on its reforms with additional policies modeled on the Securities and Exchange Commission’s 2019 proposal.

To view the full letter and list of regulations, click here.

Background:

In 2023, the NAM, along with members of the NAM’s Council of Manufacturing Associations and Conference of State Manufacturers Associations, launched the Manufacturers for Sensible Regulations coalition to address the impact of the regulatory onslaught coming from federal agencies.

An NAM-commissioned analysis on the cost of federal regulations to the U.S. economy shows the following:

• The total cost of federal regulations exceeds $3 trillion each year, an amount equal to 11% of U.S. GDP.
• Federal regulations cost the manufacturing sector about $350 billion per year.
• Small manufacturers with fewer than 50 employees face disproportionate regulatory burdens, incurring costs of more than $50,000 per employee per year to comply with federal regulations.
• Since 2012, there has been a $465 billion increase in aggregate regulatory compliance costs.

-NAM-

The National Association of Manufacturers is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector and in all 50 states. Manufacturing employs nearly 13 million men and women, contributes $2.91 trillion to the U.S. economy annually and accounts for 53% of private-sector research and development. The NAM is the powerful voice of the manufacturing community and the leading advocate for a policy agenda that helps manufacturers compete in the global economy and create jobs across the United States. For more information about the NAM or to follow us on Twitter and Facebook, please visit www.nam.org.

The U.S. Court of Appeals for the D.C. Circuit should overturn a lower court’s ruling that the Securities and Exchange Commission lacks the authority to regulate proxy advisory firms, the NAM said in a recently filed brief.

What’s going on: The Nov. 15 brief asking the appeals court to overturn a February ruling by the D.C. District Court is the latest in a years-long campaign by the NAM to ensure reasonable regulation of proxy firms. These powerful, unregulated entities often dictate how shareholders vote on proxy ballot proposals that come before public companies.

• “Since the passage of the Securities Exchange Act of 1934 in the wake of the Great Depression, the Securities and Exchange Commission has regulated proxy solicitation, so shareholders can confidently vote based on transparent and reliable information,” according to the NAM brief. “Accordingly, since the proxy voting advice industry emerged four decades ago, those firms have been subject to SEC regulation.”
• Institutional Shareholder Services, the largest and most influential proxy firm, “would rather not be regulated at all”—but “[t]he record overwhelmingly establishes that proxy firms ‘solicit’ proxies under any reasonable definition,” subjecting them to SEC oversight as required by the Exchange Act.

Why it’s important: Proxy firms wield enormous influence over both manufacturers and Main Street investors, the NAM said.

• “ISS and its main competitor, Glass Lewis, control 97% of the proxy advice market and together influence nearly 40% of the U.S. shareholder vote,” the NAM told the court in its brief.
• Further, proxy firms operate with undisclosed conflicts of interest, their reports can contain errors and misleading statements and their “robo-voting” services give them the authority to cast investors’ proxy votes with no review or input by the investors themselves.

NAM on the front lines: In July 2020, after years of NAM advocacy, the SEC finalized a rule instituting critical proxy firm reforms. ISS quickly brought a legal challenge, and the NAM intervened in the case to ensure a robust defense of the rule.

• Following the change in presidential administrations in 2021, in separate lawsuits the NAM successfully challenged the Biden SEC’s refusal to enforce the 2020 rule and its rescission of critical portions of the rule.
• After an unfavorable decision from the D.C. district court in the ISS challenge, the Biden SEC declined to pursue an appeal, effectively disclaiming its authority to regulate proxy firms. The NAM took the lead as intervenor-appellant in the case, so manufacturers are now the sole bulwark against proxy firms’ unchecked power. A victory in the D.C. Circuit for the NAM would make the proxy firms subject to the 2020 rule’s important reforms.

Former SEC officials agree: A group of former SEC commissioners and staff authored an amicus brief in support of the NAM’s position.

• The brief chronicles the commission’s 50-year history of affirming that proxy firms are engaged in solicitation. The officials make clear that “stripping the SEC of its long-standing and Congressionally conferred power to regulate the firms” would “seriously harm the investing public by decreasing fairness and honesty in the markets—exactly the opposite of what Congress was trying to accomplish in the Exchange Act.”

What’s next: ISS’s response to the NAM’s brief is due in the coming weeks, and the court likely will schedule oral argument for early 2025.

The “30C” tax credit has the potential to spur manufacturing investment, but the Internal Revenue Service and Treasury Department must first clarify some of their proposed rules regarding it, the NAM said this week.

What’s going on: In September, the IRS and Treasury Department jointly proposed regulations regarding Section 30C of the U.S. tax code’s Alternative Fuel Vehicle Refueling Property Tax Credit, which was changed and expanded by the Inflation Reduction Act of 2022.

• “A key purpose of the energy provisions of the IRA was to reduce greenhouse gas emissions and spur manufacturing investments in low emissions and renewable energy sectors,” NAM Vice President of Domestic Policy Chris Phalen told the IRS on Monday.
• “Manufacturers make vehicles that use alternative fueling stations, many of our members produce the components … that go into these stations and manufacturers will construct and operate these refueling properties. These companies require certainty and specificity to make final investment decisions.”

What must be done: To that end, the NAM told the agencies the following changes should be made to the proposed regulations for the 30C tax credit:

• Extend the allowed transition period for organizations to update “census tract designations to reflect population data in the years 2016–2020,” as the draft rulemaking mandates that those wishing to take advantage of the 30C credit “must place the property into service within a specific census tract designation.”
• Clarify whether the location of the refueling infrastructure “would need to be made available to the public to qualify for the 30C tax credit.”
• Provide tax credit “eligibility for certain property directly attributable to the operation of alternative fuel vehicle refueling property, such as electrical panels and conduit/wiring, and ask that the agency also consider related construction and other project costs for eligibility.”

With a new administration and Congress on the horizon, the NAM is signaling confidence in its ability to secure wins for manufacturing in the United States, highlighting both recent achievements and policy priorities moving forward.

“The NAM has always focused on what’s best for manufacturing in America, and our track record speaks to that,” said NAM Executive Vice President Erin Streeter. “Our approach is consistent because we know what it takes to get results.”

What we’ve delivered: With post-partisan engagement, the NAM has achieved historic policy wins across both recent administrations, including:

• Tax reform: The NAM’s advocacy helped shape the 2017 tax cuts, driving billions in savings that manufacturers have reinvested in jobs, innovation and facility upgrades.
• Regulatory certainty: The NAM has played a pivotal role in streamlining regulations, reducing compliance costs under the Trump administration and working to slow regulatory expansion during the Biden years.
• United States-Mexico-Canada Agreement: The NAM was a key advocate for USMCA, safeguarding U.S. jobs by ensuring fairer competition and greater access to key markets.
• Energy advances: NAM-backed policies have supported growth in domestic energy production, creating a more stable energy market.
• Infrastructure and CHIPS Act: The NAM was instrumental in securing the historic Bipartisan Infrastructure Law and the CHIPS and Science Act, both critical for modernizing the economy, bolstering national security and ensuring a reliable semiconductor supply.

“These wins demonstrate what we bring to the table,” Streeter said. “By staying focused on manufacturing’s priorities, we can partner effectively with the new administration and Congress to create and protect jobs and strengthen communities.”

Looking ahead: The NAM’s focus on core issues remains critical for keeping the sector competitive and resilient, Streeter continued. These issues include:

• Securing tax reform: The NAM’s “Manufacturing Wins” campaign aims to lock in key 2017 tax provisions that manufacturers rely on for stability and growth. “Tax reform has been a game-changer,” said Streeter. “Protecting that progress means more jobs and manufacturing-led growth across the country.”
• Regulatory certainty: The NAM is advocating for balanced regulations that support competitiveness. “Manufacturers thrive with clear, fair rules,” Streeter noted. “We’re making sure Washington understands the importance of regulatory stability—and the danger of excessive regulation.”
• Energy security: The NAM is working to secure reliable, affordable energy while fostering innovation in sustainability. “Energy security and grid reliability are top of mind for every manufacturer,” Streeter added. “We’re ensuring manufacturers can continue to innovate, grow and drive America forward.”

Bottom line:  The NAM remains focused on advocating for policies that strengthen U.S. manufacturing. “Our success is built on trust and influence,” Streeter said. “Our members know the NAM is a constant force, with the relationships and expertise to deliver, regardless of political changes.”

In related news, President-elect Trump has named campaign manager Susie Wiles as White House chief of staff (Reuters, subscription), a choice NAM President and CEO Jay Timmons called “a powerful move to bring bold, results-driven leadership to the White House from day one.”