TAUC Legislative & Regulatory Update, January 2016

January 8 2016

TAUC Legislative and Regulatory Update

Congress has officially completed the First Session of the 114th Congress with the passage of the $1.1 trillion omnibus appropriations bill and legislation extending expiring tax provisions. The President signed the package into law on Friday, December 18. The package includes a number of victories for TAUC and other labor groups, including a two-year delay in the ‘Cadillac’ tax.

Multiemployer Pension Reform

A second set of multiemployer pension reforms unfortunately did not make it into the final appropriations bill. However, TAUC continues to promote these reforms and to make enactment of them a priority in 2016.

We want to thank the members of the Government Affairs Committee who stayed in Washington after TAUC’s 2015 State of the Union Construction Industry Forum to meet with their members of Congress. We had very positive meetings, which will help in the effort to pursue further reforms in 2016.

While legislation providing greater flexibility to multiemployer pension plans did not make into the final legislative package, neither – thankfully – did the bills that have been introduced to repeal certain aspects of the “Multiemployer Pension Reform Act” (MPRA). Among these bills are Rep. David Joyce’s (R-OH) (H.R.4029) and Senator Portman’s (R-OH) (S.2147) “Pension Accountability Act” and Rep. Marcy Kaptur’s (D-OH) (H.R.2844) and Senator Sanders’ (I-VT) (S.1631) “Keep our Pension Promises Act.”

Current MEPR developments include:

• Comment period on union benefit-reduction proposal reopened until February 1, 2016

Affordable Care Act – ‘Cadillac’ Tax

The omnibus includes a two-year delay of the ACA’s excise tax on the value of “high-cost” employer-sponsored health coverage, which is currently set to take effect in 2018. Opposition to the Cadillac tax has been growing on Capitol Hill on both sides of the aisle, and TAUC is pleased that this delay has made its way into the final spending bill. While this is not a full victory, as the tax is still slated to take effect in 2020, it is a significant step towards repealing the tax completely. Additionally, since implementation has now been pushed back into another presidential administration, it is more likely the tax will be scrapped.

Environmental Regulations

The omnibus does not include the environmental riders that would have undercut many of the EPA’s proposed environmental regulations, including the Clean Power Plan and the Waters of the United States (WOTUS) Rule. However, significant efforts to overturn these regulations continue around the country, both on Capitol Hill and in the courtroom.

Although previous appropriations bills included measures that would have overturned the Clean Power Plan, these riders were not included in the final omnibus language. Additionally, the attempts to legislate against the Plan using the Congressional Review Act – which have passed both the House and Senate – will be vetoed by President Obama once these resolutions make it to his desk.

The WOTUS Rule has similarly survived the omnibus. Currently, the 6th US Circuit Court of Appeals has issued a stay on the rule until it decides where the regulation will be adjudicated. However, defeat in the courts is still a strong possibility for both of these regulations.

The EPA’s mercury standard for power plants was recently upheld in a ruling by the US Court of Appeals for the District of Columbia. While this is obviously not the desired outcome, it has opened the door to further legal challenges. Additionally, the EPA will now have to conduct and submit a cost analysis which will most likely be used against the rule in the future.

Other Issues

DOL’s Silica Rule: The final omnibus did not include a provision that was in the Senate version of the FY2016 Labor-HHS appropriations bill that would have prevented DOL from issuing the final silica rule. It was anticipated that the DOL would send the final rule to the Office of Management and Budget before the end of 2015. OSHA initially proposed the rule in September 2013, which would reduce to 50 micrograms per cubic meter the permissible exposure over an eight-hour time period from the current standard 250 micrograms per cubic meter for the construction industry. An earlier version of the rule was sent to OMB in February 2011. According to the White House Fall Regulatory Agenda, the final rule is expected to be released in February 2016.

Surface Transportation Legislation: Earlier this month, Congress completed action on a 5-year surface transportation authorization bill, the “Fixing America’s Surface Transportation (FAST) Act.” The legislation, which was signed into law by the President on December 4, will provide $305 billion in investments in highways, transit, and other modes of surface transportation.