Regulatory and Legal Reform

Unnecessary regulations and excessive red tape prevent us from reaching new levels of achievement and make it harder for small businesses to compete. We need regulatory and legal reforms that unleash our industry and supports the work of men and women nationwide.

Press Releases

EPA Administrator Wheeler Announces WOTUS Repeal Rule at NAM

Action Follows Advocacy by Manufacturers to Protect Water, Provide Certainty

Washington, D.C. – Environmental Protection Agency Administrator Andrew Wheeler and Assistant Secretary of the Army for Civil Works R.D. James joined National Association of Manufacturers President and CEO Jay Timmons at NAM headquarters to announce the finalization of a rule to repeal the controversial 2015 Waters of the United States rule and clear the way for a new rule to protect America’s water resources without overstepping the bounds of the law. Manufacturers sought this action from the EPA and for decades have advocated for clear rules to protect clean water and provide long-term certainty for economic growth.

Today, EPA and the Department of the Army finalized a rule to repeal the previous administration’s overreach in the federal regulation of U.S. waters and recodify the longstanding and familiar regulatory text that previously existed, said Administrator Wheeler. Today’s Step 1 action fulfills a key promise of President Trump and sets the stage for Step 2—a new WOTUS definition that will provide greater regulatory certainty for farmers, landowners, homebuilders and developers nationwide.

America is now one step closer to smart and balanced regulation that protects our nation’s precious water resources, said Timmons. Courts already declared the 2015 rule illegal, following years of litigation that included a 9-0 victory for the NAM at the Supreme Court, so manufacturers are pleased to see it officially struck from the books. The old water rule, which sought to regulate dry land, was confusing and counterproductive. Manufacturers are committed to environmental stewardship, so now we look forward to a new, more effective rule to protect clean water.

-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 more than 12.8 million men and women, contributes $2.38 trillion to the U.S. economy annually, has the largest economic multiplier of any major sector and accounts for more than three-quarters 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 Manufacturers or to follow us on Shopfloor, Twitter and Facebook, please visit www.nam.org

Policy and Legal

Manufacturers Score Victory in SEC Oversight of Proxy Firms

Manufacturers won a victory yesterday as the Securities and Exchange Commission (SEC) published new guidance regarding proxy advisory firms, outlining how institutional investors should monitor their use and setting the stage for more effective oversight of the proxy firm business.

Investment advisers and fund managers who oversee Americans’ retirement savings are empowered to have a voice in the policies of the companies in which the fund invests. These fund managers often turn for assistance to proxy firms to recommend votes on company policies. As a result, proxy advisory firms have enormous influence over the corporate governance policies of U.S. public companies, impacting the direction of businesses they have no stake in and the life savings of Main Street investors. Unfortunately, a lack of oversight means proxy advisory firms can operate with undisclosed conflicts of interest and inadequate transparency, implement one-size-fits-all decision-making, and make errors that impose significant costs and damaging policies on manufacturers and workers.

The SEC’s guidance clarifies how investment advisers can utilize these firms, representing a significant step toward vital investor protections. In particular, the guidance outlines the due diligence that fund managers have to undertake when relying on a proxy firm’s services and identifies factors, such as errors, conflicts of interest, and methodological weaknesses, that fund managers should be on the lookout for.

“This decision is a big win for manufacturers across the country,” said Charles Crain, Director of Tax and Domestic Economic Policy at the National Association of Manufacturers. “With this guidance, the SEC is providing a roadmap for asset managers to protect Main Street investors’ best interests and laying the groundwork for improved oversight of the proxy advisory industry—and a smarter, more informed environment for millions of manufacturers and middle-class Americans.”

The SEC’s guidance echoes specific requests made by the NAM in their March 5 comment letter, in which the organization called for more clarity around “how investment advisers can utilize independent third parties in order to ensure that proxy voting decisions are made in the best interests of the middle-class Americans whose retirement accounts are at stake.”

The NAM has also requested additional rules that would implement direct SEC oversight of proxy advisory firms. The SEC yesterday issued interpretive guidance that its proxy rules do apply to firms providing proxy advice, and manufacturers are optimistic that further reforms will be considered and addressed by the SEC in the coming months.

“This SEC announcement represents critical direction for investment advisers and demonstrates the SEC’s understanding of the fiduciary duty these money managers owe to Americans nationwide,” said Crain. “We’re thankful that yesterday’s guidance provides critical guardrails manufacturers have called for, and we look forward to continuing this conversation to ensure that proxy voting decisions are made in the best interests of Americans saving for a secure retirement.”

Press Releases

NAM Welcomes SEC Guidance as Major Win for Manufacturers

“The SEC Has Heeded Manufacturers’ Call”

Washington, D.C. – National Association of Manufacturers President and CEO Jay Timmons released the following statement on the SEC’s announced guidance on proxy advisory firms:

“The SEC has heeded manufacturers’ call and has taken concrete steps that will help protect the savings of Main Street investors. For too long, investment advisers have relied on unaccountable proxy advisory firms when making decisions about Americans’ retirement investments. Proxy firms often have agendas disconnected from companies’ success or Americans’ financial security, and their reports have been found to contain errors and conflicts of interest. That’s why the NAM urged the SEC to act, and manufacturers are encouraged that the commission has heard our recommendations and is working to implement these initial reforms. We look forward to building on these first steps to achieve even more progress.”

Background
The NAM has been a leading voice in favor of SEC action to ensure proxy advisory firms work in the best interest of manufacturers and manufacturing workers. Over the past two years, the NAM has written several comment letters to the SEC urging reforms to the proxy process, supported legislation passed by the House to increase SEC oversight of proxy advisory firms and launched a six-figure ad campaign in conjunction with the U.S. Chamber of Commerce, including the website ProxyReforms.com, to highlight the issues that companies face in their interactions with proxy firms and provide a feedback portal for businesses to share their stories.

-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 more than 12.8 million men and women, contributes $2.38 trillion to the U.S. economy annually, has the largest economic multiplier of any major sector and accounts for more than three-quarters 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 Manufacturers or to follow us on Shopfloor, Twitter and Facebook, please visit www.nam.org.

Press Releases

Wheeler Announces Proposed 401 Rule at NAM’s CMA Conference

“This Proposal Is a Win for Manufacturers”

Charleston, SC – National Association of Manufacturers President and CEO Jay Timmons released the following statement after EPA Administrator Andrew Wheeler announced an EPA proposal to clarify Section 401 of the Clean Water Act at the NAM’s Council of Manufacturing Associations’ Summer Leadership Conference in Charleston, South Carolina:

“The EPA’s efforts to modernize regulations and deliver regulatory certainty have contributed to strong manufacturing growth in recent years. This proposal is a win for manufacturers that would build on that success by offering much-needed clarity to states and manufacturers alike. Too often, the vaguely worded Section 401 has been used as an excuse to block critical infrastructure and trade projects. By setting clear guidelines, the EPA is empowering manufacturers to invest in our people and communities with confidence and to work with state leaders to protect our water and environment.

“We are grateful that Administrator Wheeler chose to announce this landmark proposal at the NAM’s Council of Manufacturing Associations’ Summer Leadership Conference. It demonstrates that by working together, government and business leaders can ensure economic growth and environmental stewardship go hand-in-hand.”

Section 401 of the Clean Water Act gives states an important role to play in ensuring water quality standards are not impaired by federally permitted projects. This proposal will give state and federal partners more clearly defined roles, responsibilities and consistent expectations in line with the statute and recent court decisions. The proposed rule seeks to protect waters by strengthening the Section 401 process.

-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 more than 12.8 million men and women, contributes $2.38 trillion to the U.S. economy annually, has the largest economic multiplier of any major sector and accounts for more than three-quarters 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 Manufacturers or to follow us on Shopfloor, Twitter and Facebook, please visit www.nam.org.

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Policy and Legal

Counterfeit Goods Harm Manufacturers and Consumers

When almost anything can be ordered online, how do you know if the product you’re buying is legitimate? Counterfeit goods are increasingly prevalent, and third-party e-commerce sites are making it easier than ever for counterfeiters to distribute inauthentic products.

To help combat this, the National Association of Manufacturers submitted comments last week to the Department of Commerce, proposing solutions to this counterfeit goods problem that is detrimental to manufacturers and customers alike. These comments reflect the rising tide of counterfeit products available, from auto parts to toys, from medicines to electronics and more.

These sales don’t just hurt businesses or inconvenience customers. Fake products can be a health and safety hazard. For example, prescription drugs are commonly counterfeited—with potentially severe consequences.

“First and foremost, we are always concerned about patient safety and the harmful effects that illegitimate products have,” Eli Lilly Director of Global Public Policy Tim McGuire said. “There is significant risk associated with putting medications in your body that haven’t gone through the rigorous regulatory review and approval processes that include safety testing and quality inspections.”

Even if a manufacturer is aware that counterfeit products are being distributed, getting those products removed from websites and working to communicate to customers that they have purchased fake goods is no small task. The process of identifying counterfeit sellers requires constant monitoring of search engines, e-commerce sites and other methods of distribution, and the onus is on the maker rather than the retailer.

“The big challenge is that counterfeiters always come back, and there isn’t a good structure in place to permanently prevent them from operating,” said Whirlpool Corp. Legal Counsel Nathan Davis. “You take down a listing, they put up a new listing. You shut down one website, they launch another website. The existing consequences are not sufficient to stop them.”

And for small- and medium-sized companies, the resources needed to stop the sale of counterfeit products can be prohibitive. Napoleon gas grills are an example: Accessories to go with these are often counterfeited and marketed as acceptable for use with Napoleon’s products. Consumers then think the counterfeit product is covered by Napoleon’s warranty.

“We’re essentially underwriting counterfeit products,” Napoleon Technical Support Manager Dana Moroz said. “The credibility of our brand name is affected, and we end up having to warrant inferior products to sustain our name. To the consumer, it’s all a Napoleon product.”

The NAM’s public comments provide next steps for combating counterfeiting, including recommendations for the U.S. government, for brand owners, and for online marketplaces and websites.

“Winning the fight against counterfeiters requires everybody—not just manufacturers, but e-commerce platforms and search engines, customs agents and consumer safety advocates—to get serious,” said NAM Director of International Business Policy Ryan Ong. “Stopping the flow of these products means not just legal and policy changes, but smarter enforcement priorities, better coordination and information sharing and a serious commitment by all parties to do their part.”

Press Releases

NAM Statement on Supreme Court Decision in Kisor v. Wilkie

Narrowing of “Auer Deference” Will Give Manufacturers Added Regulatory Certainty

Washington, D.C. – National Association of Manufacturers Senior Vice President and General Counsel Linda Kelly issued the following statement on today’s Supreme Court ruling in Kisor v. Wilkie:

The judicial doctrine of ‘Auer deference’ harmed manufacturers’ competitiveness because it gave agencies exceedingly broad authority to interpret vaguely crafted regulations, said Kelly. While Auer deference was not struck down in full, the court narrowed it significantly, which will give manufacturers in America added regulatory certainty so they can grow, hire and invest more here in the United States.

In February 2019, the NAM’s legal arm, the Manufacturers’ Center for Legal Action, filed a multi-association amicus brief with the Supreme Court, which included examples of how the legal doctrine harmed manufacturers. To learn more about the MCLA, click here.

-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 more than 12.8 million men and women, contributes $2.38 trillion to the U.S. economy annually, has the largest economic impact of any major sector and accounts for more than three-quarters 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 Manufacturers or to follow us on Shopfloor, Twitter and Facebook, please visit www.nam.org.

Policy and Legal

Bill Would Require Federal Agencies to Give More Notice of Regulations

capitol building Washington DC

Sunlight is the best disinfectant. That was the message at a hearing last week for a bill aimed at increasing transparency by requiring federal agencies to give advanced notice of regulations. The bill, approved by voice vote with bipartisan support by the Senate Homeland Security and Government Affairs Committee, will move on now to consideration by the full Senate.

Under the Early Participations in Regulations Act, businesses and the public would have more notice of proposed major rules, giving federal agencies more time to collect public comments. Agencies would have to publish advanced notice of proposed rulemaking at least 90 days before the official rulemaking notice. Major rules are considered to be those that have costs or benefits to the economy in the amount of $100 million or more in a calendar year.

Currently, by the time a notice of proposed rulemaking is released, federal agencies have typically already decided what kind of rule will be issued. The proposed bill would give the public more time to be involved on the front end, forcing agencies to collect public comments before proposing concrete regulatory terms, giving affected parties a chance to offer ideas on how to achieve a regulatory goal that the agency may not have considered. If the bill is enacted, among other things, final rules will benefit from a more robust consideration of the public’s feedback and will be more likely to hold up in court.

“An advanced notice requirement would help surface potential roadblocks or find smarter regulatory approaches at an earlier stage before the agency has invested an inordinate amount of time into its chosen path,” said Patrick Hedren, NAM’s Vice President for Labor, Legal and Regulatory Policy. “This is just a basic transparency and good governance measure meant to force agencies to solicit regulatory ideas from the public that they might otherwise not have considered.”

This bill is one that the NAM has long supported in previous Congresses, and it continues to support this legislation in its current form.

“We’re thrilled to see Senators Lankford and Sinema engage on bipartisan good governance measures like this one that improve the way the federal government seeks input from manufacturers and the public,” Hedren said.

Policy and Legal

Climate R&D Bill Would Make Manufacturing More Competitive

Two Bosch manufacturing workers look at a powercell.

A House of Representatives committee recently held a hearing on a bill designed to drive breakthrough innovations to tackle climate change—a priority that has the strong support of the National Association of Manufacturers and manufacturing businesses across the country.

The Clean Industrial Technology Act (CITA) would set up a Transformational Industrial Technology Program at the U.S. Department of Energy, and would drive new technologies aimed at increasing the technological and economic competitiveness of manufacturing in the United States. The program would also find pathways to net-zero greenhouse gas emissions and create a technical assistance program to help local communities and states evaluate and incentivize the adoption of technologies that reduce industrial greenhouse gases. The legislative hearing on the CITA was held by the House of Representatives Committee on Science, Space, and Technology. In the Senate, the NAM has been working closely with Sen. Sheldon Whitehouse (D-RI) on similar legislation.

“Manufacturers have always been about solutions,” said Rachel Jones, Senior Director of Energy and Resources Policy at the NAM. “We need real-world technologies to address our global climate problem, and legislation like the CITA provides a common sense opportunity to move our efforts forward. This bill takes a clear-eyed look at the unique challenges that different energy-intensive industries face as we all work toward ensuring a safer and more prosperous future.”

Manufacturers across the country are deeply involved in sustainability programs, leading the way for other industries in protecting our environment. Most manufacturing companies have already pioneered new technologies and implemented meaningful programs to reduce greenhouse gas emissions. With more than 12 million men and women employed by the industry in every state in the country, manufacturing businesses have a unique perspective on the challenges of our shared path forward and have consistently worked with Congress to promote bills like the CITA.

“Providing incentives for U.S. businesses, schools and laboratories to bring game-changing technologies into the commercial sector isn’t just good policy; it’s common sense,” said Jones. “Cooperative partnerships between industry, government and academia benefit all three sectors and the country as a whole.”

Manufacturers contributed 18 percent more value to the American economy over the past decade while reducing the carbon footprint of their products by 21 percent—demonstrating that productivity and sustainability are compatible with each other—and keeping the industry’s promise to promote sustainable solutions.

“Manufacturers are committed to reducing greenhouse gases and addressing climate change while preserving our global competitiveness,” said Jones. “This legislation is a great example of how we are working with policymakers to turn aspirations into reality in order to protect our environment and improve our world. Manufacturers applaud the House Science Committee and Sen. Whitehouse for their leadership.”

Policy and Legal

Manufacturers Push For Fast-Track Recall Legislation

capitol building Washington DC

Last week, the U.S. House of Representatives’ Energy & Commerce Committee’s Subcommittee on Consumer Protection and Commerce held a legislative hearing on proposed improvements to the Consumer Product Safety Commission (CPSC), including one bill applauded by manufacturers across the country. H.R. 3169, known as the FASTER Act, would codify and strengthen the “fast-track” recall program, making it easier for companies to issue a voluntary recall if they determine that one of their products is unsafe.

Instituted by the CPSC nearly 25 years ago, the existing fast-track program is intended to provide companies with the ability to quickly recall a product if necessary, eliminating procedural steps like the CPSC staff’s technical evaluation of a product to determine if a defect exists that could harm consumers. That procedure, called a preliminary determination, can take several months. By streamlining the time-consuming review, manufacturers can quickly ensure the safety of consumers when they have already determined that a recall is necessary.

However, the fast track program has frequently been slowed down by bureaucratic Commission obstacles that have delayed even voluntary recalls by months.

“The CPSC’s fast-track program, once an award-winning agency program allowing for swift voluntary recalls, has become hampered by bureaucratic disagreements over non-substantive concerns, such as the wording of press releases and other hold-ups that create unnecessary hurdles to ensuring the safety of products on the market,” said Graham Owens, NAM Director of Legal and Regulatory Policy. “In other words, the program’s signature quality—that of being fast—seems to have been recalled itself.”

The bill Congress is considering would make the agency-created fast-track program permanent, while also clearly laying out how the process should work to prevent red tape from creeping back in. Meanwhile, the Commission would still have the power to make companies go through the long-form recall process on a case-by-case basis if it determines the expedited process was insufficient, ensuring that the Commission continues to hold regulatory authority.

“The FASTER Act would alleviate bureaucratic and non-substantive red tape by codifying the fast-track program into law—and by preventing the commission from delaying the posting of public notices of recall plans,” said Owens. “These simple steps would immediately speed up voluntary recalls to the benefit of consumers, manufacturers, and even the Commission itself.”

After fighting for many years to fix these administrative delays, manufacturers are hopeful that Congress will finally update the fast-track process.

“This hearing is a great start toward ensuring manufacturers are able to voluntarily recall products in an efficient and effective manner,” said Owens. “The FASTER Act, if passed, would improve the agency’s effectiveness in discharging its critical mission, and we commend the Subcommittee for focusing on common sense reforms. Manufacturers stand ready to work with Congress and the CPSC to achieve this laudable goal.”

Press Releases

NAM Notches Win Against 2015 WOTUS Rule in Federal Court

Ruling Protects Manufacturers’ Right to a Fair and Transparent Rulemaking Process for Major Regulations

Washington, D.C. – National Association of Manufacturers Vice President for Litigation and Deputy General Counsel Peter Tolsdorf released the following statement after the U.S. District Court for the Southern District of Texas ruled that the Environmental Protection Agency’s 2015 Waters of the United States rule violated the Administrative Procedure Act:

For nearly four years, the Manufacturers’ Center for Legal Action has battled the overreaching WOTUS rule in the courts, and manufacturers have claimed another important victory, said Tolsdorf. The court’s ruling protects manufacturers’ right to a fair and transparent rulemaking process for significant environmental rules with multibillion-dollar impacts.

This rule was unreasonable on its face—it was a water regulation that went so far as to attempt to regulate dry land. This made compliance nearly impossible and put manufacturing jobs at serious risk. Manufacturers will continue to fight for fair, clear regulations that empower us to be responsible stewards of the environment while continuing to grow the U.S. economy.

In October, the NAM filed a motion for summary judgment in the U.S. District Court for the Southern District of Texas to invalidate the 2015 WOTUS rule.

Specifically, the court found that the EPA did not provide the public with reasonable notice and an opportunity to comment on the final rule’s definition of jurisdictional “adjacent waters.” The court also concluded that the EPA violated the APA by releasing the technical basis for the proposed rule only after the public notice and comment period had closed.

The NAM’s legal arm, the Manufacturers’ Center for Legal Action, has been in active litigation against the rule since July 2015, helping lead a large coalition of business groups to sue the EPA. Arcane procedural obstacles prevented the courts from hearing the merits of our legal challenge for several years. In early 2018, however, the MCLA scored a significant legal victory before the U.S. Supreme Court, which resolved those issues and has allowed litigation against the substance of the rule to proceed. The MCLA is also challenging the rule in a separate federal court in Georgia and has filed supporting amicus briefs in other legal challenges to the rule. To learn more about the MCLA, click here.

-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 more than 12.8 million men and women, contributes $2.38 trillion to the U.S. economy annually, has the largest economic impact of any major sector and accounts for more than three-quarters 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 Manufacturers or to follow us on Shopfloor, Twitter and Facebook, please visit www.nam.org.

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