December 7, 2023

Washington Wire: Congress Returns to Washington as One Voice Continues its Efforts on Tax Relief



Congress Returns to Washington as One Voice Continues its Efforts on Tax Relief
Congress is returning to Washington from its summer recess facing a hard deadline to fund the government as well as act on numerous other policy issues before the end of the year, including passing tax legislation with provisions vital to One Voice members. 
Senators are back in Washington this week following the summer recess while the House of Representatives is set to return on September 12, and lawmakers have just a few months to come together on legislation that includes essential tax provisions for small and medium-sized manufacturers such as immediate deductions for research and development (R&D) expenses, restoring full Bonus Depreciation, returning to the Section 163(j) EBITDA standard, and an increased Section 179 expensing deduction.
One Voice continues to advocate on behalf of its members, by urging members of Congress to act on these critical provisions immediately. Both NTMA and PMA recently sent letters of support to Representative Jason Smith (R-MO), Chairman of the House Ways and Means Committee, applauding him for the introduction and swift Committee approval of the American Families and Jobs Act, the package of bills that contains a fix for R&D and these other vital tax provisions and which the Ways and Means Committee approved on June 13, 2023. Both associations also offered their full support for the immediate passage of the legislation by the full House of Representatives, which would trigger negotiations with Senate Democrats. 
To continue to urge lawmakers to act and to make your voice heard on this important issue, send a message to your member of Congress by clicking here.



Overtime Update Issued
The U.S. Department of Labor (DOL) released a proposed rule to update overtime regulations on August 30, 2023. The notice of proposed rulemaking (NPRM) for “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees” would increase the Fair Labor Standards Act's (FLSA's) annual salary-level threshold to $55,068 from $35,568 for white-collar exemptions to overtime requirements as well as increase the total annual compensation requirement for “highly compensated employees” (HCE) from the currently-enforced level of $107,432 to $143,988 per year. Eligible employees below those new thresholds are eligible for pay at time and a half.
In addition to increasing the salary threshold of the overtime test, the NPRM would require that the threshold automatically update every three years by “adjusting it to remain at the 35th percentile of weekly earnings of full-time non-hourly workers in the lowest-wage Census Region (currently the South).” Should unseen “economic or other conditions” warrant, the NPRM would allow DOL to delay an automatic update. 
Former President Obama finalized an overtime exemption rule in 2016, more than doubling the threshold from $23,660 to $47,476 per year for Executive, Administrative, Professional & Clerical Employees (EAP) and for highly compensated workers from $100,000 to $134,000. The rule was ultimately blocked from implementation by the courts. The Trump administration then issued its own rule setting the current threshold for EAP employees at $35,568 annually and $107,432 per year for highly compensated employees.
DOL will be accepting public comments for 60 days from when the NPRM is officially published in the Federal Register. 



OSHA Proposes Worker Walkaround Rule
The Occupational Safety and Health Administration (OSHA) has released a proposed rule to allow third-party employee representatives, including a union official at a non-organized facility, to be present during OSHA inspections. The proposed rule would change a long-standing OSHA rule allowing only employees to be designated by workers as “walkaround representatives.”
Specifically, the agency's proposed text says "representative(s) authorized by employees may be an employee of the employer or a third party." It would allow non-employee representatives to participate in a walkaround "if, in the judgment of the Compliance Safety and Health Officer [CSHO], good cause has been shown why their participation is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace (e.g., because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills)."
The proposed rule codifies a 2013 Obama-era OSHA guidance, the “Fairfax Memo,” which broadly interpreted the Occupational and Safety Health (OSH) Act of 1970 to allow union officials or community organizers to accompany CSHOs on walkaround inspections. That guidance was challenged by multiple parties in court before being rescinded by the Trump administration in 2017. 
OSHA will accept comments on the proposed rule through October 30. 



Changes to 232 Exclusion Process Proposed
The Bureau of Industry and Security (BIS) at the Department of Commerce released a proposed rule on August 28, 2023, to make changes to the Section 232 steel and aluminum tariff exclusions process.
Since the Section 232 tariffs were initially enacted in March 2018, BIS has published five interim final rules which established and then revised the exclusion process. The proposed rule "finalizes" the interim rules and outlines four key changes the agency believes will help streamline the process.
The proposed rule would change the criteria for General Approved Exclusions (GAE), creating a more expansive process and broadening the GAE criteria to include products "with very low rates of successful objections.” The proposal would also establish a General Denied Exclusions (GDE) process for steel and aluminum products where BIS finds “very high rates” of successful, substantiated objections to exclusion requests for a given product category.
BIS also proposed including new certification requirements for exclusion requests requiring requesters to certify and provide evidence that "they have first made reasonable efforts to source their product from the United States and then, if unsuccessful in sourcing from the United States, that they have made reasonable efforts to source their product from a country with which the United States has arrived at a satisfactory alternative means to address the threat to the national security under Section 232." Eligible markets for sourcing include Argentina, Australia, Brazil, Canada, the European Union, Japan, Mexico, South Korea, and the United Kingdom, all countries with some form of agreement in place related to the Section 232 tariffs.
Additional certification requirements would also be included on an objection form, under the proposed rule. This has long been a top priority of One Voice, to hold objectors accountable when making a claim that they have the capability to manufacture the steel product in question. Objectors would need to certify that they can supply comparable quality and quantity of steel or aluminum and make it immediately available, within eight weeks, to requestors or if that is not possible, within a shorter amount of time than it would take a requestor to get the products from its foreign supplier. In addition to the certification, BIS would require objectors to file evidence that they have commercially sold the same product as that which is being requested within the last 12 months, or evidence that they have engaged in sales discussions with the requesting company or another company requesting the same product within the last 12 months.
BIS is requesting public comments on the proposed changes to the Section 232 exclusion process. Comments are due on October 12. 


EPA Releases Updated WOTUS Rule
The Environmental Protection Agency (EPA) has issued a new final definition of “waters of the United States” (WOTUS). The new revised WOTUS definition, released August 29, 2023, follows the Supreme Court's landmark Sackett v. EPA decision, which narrowed the Clean Water Act's (CWA) coverage of wetlands in part by rejecting the “significant nexus” test for jurisdiction that was a fundamental element of the Biden administration's WOTUS rule.
The final rule eliminates the significant nexus test for jurisdictional waters as well as excludes “adjacent” and “interstate wetlands” from the definition of jurisdictional waters under the CWA.  
The new definition is being issued as a final regulation, as the EPA is invoking statutory authority to bypass notice-and-comment procedures for “good cause” following the SCOTUS decision. The Administrative Procedure Act (APA) agencies can enact final rules without taking comment on a proposed version in limited cases, including where the agency has “good cause” to find that the notice-and-comment process would be “impracticable, unnecessary, or contrary to the public interest.”
The final rule will take effect immediately upon its upcoming publication in the Federal Register.