Regulatory and Legal Reform

After an aggressive campaign by the NAM, the U.S. Securities and Exchange Commission has scaled back a damaging cybersecurity proposal that would have been deeply problematic for manufacturers. Yet, the final regulations still impose compliance burdens on publicly traded companies. Here’s what manufacturers can expect now that the rule is finalized.

The background: Last year, the SEC proposed a new set of cybersecurity disclosure requirements for public companies.

• The centerpiece of the rule was a mandate to disclose cybersecurity incidents to the public within four days.
• The proposal also would have required detailed reporting on companies’ policies and procedures for responding to cybersecurity threats.

The problem: Requiring detailed public disclosures about cybersecurity incidents and processes could provide a roadmap to potential hackers, and sharing information about ongoing incidents could compromise efforts to stop an attack.

The NAM response: The NAM urged the SEC to make commonsense adjustments to protect manufacturers from attacks and give companies the flexibility to respond to cybersecurity incidents appropriately.

The result: The final rule is more tailored than the initial proposal, reducing the risk that companies will be forced to expose sensitive information. But its requirements still constitute new compliance burdens on manufacturers.

For the details of the final rule, ​r​​​​ead the full story.

Every manufacturer should have the tools they need to be protected against cyberattacks. Check out NAM Cyber Cover—an exclusive cybersecurity and risk mitigation program for NAM member companies and organizations.

An international treaty now on course to clear the Senate “is the strongest enforceable international accord on greenhouse gases to which the U.S. has agreed to abide,” according to POLITICO Pro (subscription).

The background: The Kigali Amendment, advanced Wednesday by the Senate Foreign Relations Committee, is a change to the Montreal Protocol of 1987, which “banned various chemicals [hydrofluorocarbons, or HFCs] that were depleting Earth’s ozone layer.”

• Negotiated in 2016 by the United Nations, the Kigali Amendment aims to phase down the global use of HFCs, popular refrigerant alternatives and potent greenhouse gases.
• It “is projected to avoid up to half a degree Celsius of warming by 2100, making it a key part of global goals to limit warming.”
• In late 2020, Congress passed legislation requiring the EPA to issue rules phasing down the use of HFCs by 85% by 2036, in keeping with the Kigali Amendment’s requirements.

Facilitating the next generation: “With ratification of the Kigali Amendment, the U.S. will join about 130 countries in a multi-decade plan to phase down the production and consumption of 18 highly polluting substances known as HFCs,” Sen. Jim Risch (R-ID) said, according to POLITICO Pro.

• “The Kigali Amendment will facilitate the transition to the next generation of refrigerants. Our U.S. industry enjoys a strong competitive advantage in the production of successor chemicals that will replace HFCs. Approval of this treaty will ensure our companies have full and fair access to the markets of the other treaty parties.”

Next steps: Assuming all 50 Democrats vote for the treaty, final Senate ratification will require a minimum of 17 Republican votes to reach the required two-thirds majority.

Our take: The NAM applauded the Kigali Amendment’s passage, which it calls for in its climate change roadmap, “The Promise Ahead.”

• “We have been urging policymakers to support Kigali ratification and prove that smart policy can be a win for the economy and the environment,” said NAM Vice President of Energy and Resources Policy Rachel Jones.
• “If we can finish getting this through the Senate, we will have set ourselves on a path to create up to 150,000 jobs in the United States and cut billions of tons of CO2 from the atmosphere. This kind of win-win should be the model for approaching all of our environmental challenges.”

“Policy can’t be developed in a vacuum,” says Dawn Crandall, executive vice president of government relations for the Home Builders Association of Michigan. “People need to look at how one policy impacts that next thing. Everything is tied together.”

That’s Crandall’s message for the Environmental Protection Agency, as it considers a proposed air quality rule to restrict particles called PM2.5. While the regulations might not appear to impact the housing industry directly, they could prevent manufacturers from expanding facilities and creating jobs in Michigan—which does affect the housing market.

The concern: If manufacturers are unable to grow in the state or open new facilities, fewer people will need housing. That’s bad news for homebuilders.

• “If you put in these EPA regulations that are going to create a barrier for companies looking to move here, and then they decide they don’t want to, that’s going to impact Michigan’s ability to be an economic destination,” said Crandall.
• “And if you make it harder for businesses to employ employees, then they don’t need housing. That has a big impact on us.”

A shaky foundation: Michigan’s housing industry is still recovering from the significant downturn it experienced about 15 years ago.

• That slump was dramatic: according to Crandall, the number of permits filed in Michigan for single-family homes fell sharply from 54,721 in 2005 to around 15,000 two years later, bottoming out to about 6,900 in 2009.
• Although the industry has seen some recovery since then, new construction remains relatively low, and Crandall worries that shocks caused by the EPA’s proposed regulations could do further harm.
• “I think we’ve hit rock bottom, and we’re slowly coming out of it,” said Crandall. “But we’re only projecting 16,000 single-family permit builds this year—and anything that’s going to impact residential construction is not good for the state of Michigan.”

Another challenge: Ultimately, Crandall is concerned that the EPA’s proposed rule will simply add to a long list of challenges for homebuilders.

• “We’re already facing enough hurdles,” said Crandall. “There’s a lack of skilled workers who can do residential construction. Material costs peaked during COVID. We get a lot of our lumber from Canada, so these Canadian wildfires could have an impact. So if PM2.5 is going to affect economic development in our state, that’s going to have an impact on us, too.”

The big idea: “We’re all connected in some form or fashion,” said Crandall. “Michigan needs to grow our population, and we can’t do that if companies don’t bring people into our state who want to live, work and play here. We’re one big ecosystem.”

The House Financial Services Committee has spent the last month holding hearings about environmental, social and governance policies that impact American businesses—and the NAM has been fighting for manufacturers every step of the way. This week, the committee held a markup to pass a package of legislation on the topic, and the NAM’s priorities were front and center.

The issue: Manufacturers in the U.S. are at the forefront of climate stewardship and innovation even as they power the U.S. economy, yet politically motivated activists and proxy advisory firms are making it difficult for manufacturers to succeed.

• Recent actions from the U.S. Securities and Exchange Commission have empowered these groups. From unworkable ESG disclosure mandates to new standards encouraging shareholder activism to a lack of oversight of proxy firms, manufacturers are getting squeezed.

NAM in action: The NAM has advocated aggressively on behalf of manufacturers, pressing Congress to curb the impact of activists, proxy firms and the SEC on public company governance.

• NAM President and CEO Jay Timmons urged Congress to make changes that would protect manufacturers and Main Street investors, while NAM Managing Vice President of Policy Chris Netram testified before the Financial Services Committee about the need for action.

• “Congress must step in to depoliticize the business decisions that impact the lives and life savings of millions of Americans,” said Timmons. “Manufacturers are determined to create jobs, lead the economy and improve the quality of life for all Americans. We are counting on [Congress’] leadership to counter the SEC’s regulatory overreach and help us achieve these goals.”

The result: The House committee has embraced the NAM’s proposed reforms, a huge victory for manufacturers across the United States. The legislation approved by the committee this week would:

• Prevent activists from hijacking the proxy ballot in pursuit of agendas unrelated to long-term business growth and shareholder value creation;
• Rein in proxy advisory firms and limit their outsized influence on corporate governance;
• Reinforce asset managers’ fiduciary duty to Main Street investors and retirees; and
• Ease ESG disclosure mandates by requiring that public companies only report information that is material to their shareholders.

The last word: “Manufacturers strongly support the Financial Services Committee’s efforts to rein in the SEC’s regulatory overreach, keep activists out of the boardroom and protect Americans’ investments in manufacturing growth,” Netram said prior to the committee’s markup. “[W]e look forward to working with [Congress] to ensure that manufacturers can continue to drive economic expansion in the U.S. and support American competitiveness on the world stage.”

The House Financial Services Committee has spent the last month holding hearings about environmental, social and governance policies that impact American businesses—and the NAM has been fighting for manufacturers every step of the way. This week, the committee held a markup to pass a package of legislation on the topic, and the NAM’s priorities were front and center.

The issue: Manufacturers in the U.S. are at the forefront of climate stewardship and innovation even as they power the U.S. economy, yet politically motivated activists and proxy advisory firms are making it difficult for manufacturers to succeed.

• Recent actions from the U.S. Securities and Exchange Commission have empowered these groups. From unworkable ESG disclosure mandates to new standards encouraging shareholder activism to a lack of oversight of proxy firms, manufacturers are getting squeezed.

NAM in action: The NAM has advocated aggressively on behalf of manufacturers, pressing Congress to curb the impact of activists, proxy firms and the SEC on public company governance.

• NAM President and CEO Jay Timmons urged Congress to make changes that would protect manufacturers and Main Street investors, while NAM Managing Vice President of Policy Chris Netram testified before the Financial Services Committee about the need for action.
• “Congress must step in to depoliticize the business decisions that impact the lives and life savings of millions of Americans,” said Timmons. “Manufacturers are determined to create jobs, lead the economy and improve the quality of life for all Americans. We are counting on [Congress’] leadership to counter the SEC’s regulatory overreach and help us achieve these goals.”

Read the full story here.

The chemical industry has a wide reach. According to Mark Biel, CEO of the Chemical Industry Council of Illinois, 96% of products made in the United States are either manufactured by the chemical industry itself or using materials it produces.

• “We make everything from cell phones to packaging,” said Biel. “People don’t realize the integral role that chemistry plays in their lives.”

And for Illinois in particular, the chemical industry isn’t just making products—it’s making careers.

• “Our state has 46,000 people in the chemical industry, and the average wage is a little over $114,000,” said Biel. “We are the second largest manufacturing sector in Illinois, which is the fourth largest chemical processing state. Folks don’t realize how large and important the chemical industry is to Illinois.”

But as the Environmental Protection Agency considers imposing a new, stricter air quality standard for particles called PM2.5, chemical manufacturers in Illinois are sounding the alarm. According to Biel, the new regulations misunderstand the situation—and threaten to cause irreparable harm for manufacturers across the state.

The background: Manufacturers have long been committed to reducing particulates in the air, including PM2.5, and have made huge strides over the past half-century. But to further reduce PM2.5 will be a tall order.

• “We should be focused on enforcing the regulations we already have in the books,” said Biel. “The U.S. already has strong regulations in place—ones that many areas are still working to meet. Let us be smart about new regulations, which means we should not change air permitting before meeting current standards.”

The local angle: For the chemical industry in Illinois, the changes could be particularly damaging.

• With access to waterways, relatively inexpensive electricity and extensive natural gas pipeline infrastructure, the St. Louis and Chicagoland areas of Illinois are hubs for the national chemical industry.
• However, if the EPA’s standards become stricter, it could deter investments to these metro areas significantly.
• “It’s difficult enough to permit a new facility in the Chicagoland area, and when you throw on additional burdens, it makes it harder and harder to justify making the investment in these facilities,” said Biel.

The global stage: Especially at a time when many manufacturers are looking for ways to bring investments and supply chains back to the United States, this kind of onerous regulation could create a stumbling block.

• “Our lawmakers want manufacturing to come back to the U.S., but this regulation does the exact opposite,” said Biel. “With all the new investment, it’s important that more and more manufacturers locate in the U.S. to avoid supply chain complications and delays. This regulation hinders that development.”

The last word: “I’m bullish on the long-term prospects for our industry, but sometimes the EPA loses sight of the reality that their regulations are already sufficient,” said Biel. “The current PM2.5 standard has worked. But this proposal goes far beyond that and will hinder a crucial opportunity for the industry to grow in the U.S.”

Following years of regulatory disputes, the incandescent lightbulb will be almost completely phased out starting this month, according to E&E News’ ENERGYWIRE (subscription).

What’s going on: “Along with prohibiting the manufacture, import and retail sales of most incandescent bulbs, [Department of Energy] rules finalized last year authorize DOE to slap penalties of $542 on companies per each violation. That could mean millions of dollars in fines for large incandescent orders.”

• DOE says the move will cut greenhouse gas emissions and lower consumers’ utility bills.
• While there is not an explicit ban on incandescent bulbs, most of them are unable to meet the efficiency requirements that were set by Congress in 2007 and will now go into full enforcement.

What it could mean: “Industry representatives say the sweep of regulations on various appliances will spike upfront costs for consumers in the market for appliances,” ENERGYWIRE reports. “Republican lawmakers on Capitol Hill argue the Biden administration is waging a back-door campaign to ban gas stoves and other appliances.”
 

The Department of Energy released a draft proposal late last week that would impose stricter efficiency standards on water heaters—and increase costs for manufacturers, E&E News’ ENERGYWIRE (subscription) and The Washington Examiner report.

What’s going on: On Friday night, the DOE released a 425-page plan “to mandate energy efficiency levels for new consumer water heaters, which the department defines as appliances in homes and small businesses that use ‘oil, gas or electricity to heat potable water for use outside the heater upon demand,’” according to ENERGYWIRE.

• The Biden administration says the move—which would go into effect in 2029 if approved in its current iteration—would cut carbon dioxide emissions and reduce energy use by residential water heaters, saving consumers money.
• The draft rule arrives just months after the DOE released a proposal to phase out approximately half of the gas-powered stoves on the market. The House recently approved two measures to stop “gas stove rulemaking from DOE and the Consumer Product Safety Commission,” according to ENERGYWIRE.

What it would mean: The water heater rule would force manufacturers to use heat pump technology to produce electric water heaters and condensing technology to make gas-fired water heaters—and it would spike production costs in the process, according to the Examiner.

• “The [DOE] draft outlines the potential effect on manufacturers, estimating the implementation of the updated standards could result in ‘a loss of $207.3 million to a gain of $165.5 million’ through the year 2056. The DOE estimates conversion costs would be $228.1 million,” the Examiner reports.

The NAM says: “These proposed regulations add costs to manufacturers and consumers and remove market options,” said NAM Vice President of Domestic Economic Policy Brandon Farris.

• “Manufacturers believe that regulations should allow manufacturers in America to compete in a global market—while protecting consumers. The targets proposed by the DOE fail to accomplish that goal.”

The U.S. Treasury is considering possible modifications to heavily criticized changes it made to foreign tax credit rules last year, POLITICO Pro (subscription) reports. While it does so, businesses can rely temporarily on the old rules.

The background: The U.S. tax code has long provided a foreign tax credit, which is intended to prevent double taxation for U.S. businesses that have foreign income subject to both U.S. and foreign income tax.

• The new rules were “finalized last year in response to the rise of digital service taxes in other countries. Businesses say the rules have gone too far.”

What’s going on: When the changes were made final, “the Treasury Department and the IRS received questions regarding the application of the … final regulations and requests to modify those regulations,” reads a notice from the IRS.

• While Treasury revisits the changes, businesses can use the old regulations for taxable years beginning on or after Dec. 28, 2021, and ending on or before Dec. 31, 2023.
• “[A]dditional temporary relief” may also be provided, according to the notice.

Why it’s important: In 2021, when the agency was considering the changes to the foreign tax credit regime, the NAM weighed in, warning that “proposals to limit the foreign tax credit should take into consideration the potential impact on the ability of manufacturers to effectively compete in a global market.”

• When Treasury ultimately released the final regulations, the NAM and a coalition of business groups called on it to withdraw and repropose the regulations, saying the rules would limit significantly the ability of manufacturers to claim the foreign tax credit.

Our take: “The NAM welcomes the decision by Treasury and the IRS to revisit the harmful changes made to the foreign tax credit rules, which tilted the playing field against globally engaged manufacturers,” said NAM Senior Director of Tax Policy David Eiselsberg.

• “Throughout the process, the NAM made it clear that any changes should not hurt the ability of manufacturers to effectively compete in today’s global economy.”

For Michael Canty, president and CEO of Alloy Precision Technologies, Inc., of Mentor, Ohio, the Environmental Protection Agency’s proposed air quality regulations are likely to backfire. They would put a significant burden on the natural gas industry, which has played a large part in America’s efforts to reduce pollution to date.

• “Natural gas is a fossil fuel, but it’s one of the cleanest fossil fuels,” said Canty. “It’s one of the reasons why this country has met clean air standards over the years.”

This is just one of the reasons why Canty, whose company produces industrial bellows, is concerned that policymakers haven’t fully considered the rules’ consequences.

Unintended consequences: Part of the problem with the EPA’s proposed regulations, according to Canty, is that they are likely to promote production in less regulated countries around the world and contribute to more emissions overall.

• “With some of these costly regulations, we’re driving our energy prices to a much higher level and driving production of business to places like China that are creating more emission,” said Canty. “So we’re creating worse air quality control around the world while losing jobs and stifling growth in our country.”

A push for innovation: Canty wants policies that spur innovation and tech development to achieve cleaner air, rather than imposing restrictive regulations.

• “The focus should be on encouraging new technology to drive efficiencies and reduce air pollutants,” said Canty. “If the cost of doing business goes up, you have less cash to put in that innovation. As the cost of energy goes up, the amount of energy innovation goes down—especially when you talk about small businesses.”

A plea for consistency: Businesses like Alloy Precision Technologies are also frustrated by the unstable regulatory environment, which seems to shift every few years.

• “When these policies change it makes it impossible for companies to make decisions about investing in equipment and smart manufacturing,” said Canty. “It disrupts the business marketplace, and it greatly affects our ability to produce and compete around the world.”

The last word: “Do I believe we ought to continue investing in newer technologies that will improve our air quality? Absolutely,” said Canty. “These regulations are well meant, but the end result will be disastrous for businesses and the United States.”