Insights on Current Policy Issues
EEOC Proposes To Collect New Data On Pay
By Shane Doucet and Michael Kans
As part of the Obama Administration’s initiative to advance equal pay policies, on January 29, 2016, the Equal Employment Opportunity Commission (“EEOC”) released a proposal that would expand the information many private entities must report to the EEOC. Specifically, the proposed revision would require all employers with 100 or more employees (both private industry and federal contractors) to collect and report data on pay and hours-worked on their annual employer information reports (i.e. EEO-1 forms). Employers have previously reported to the EEOC the number of their employees by sex, race, ethnicity, and job category. However, it should be noted that the proposal is not a rulemaking and is a proposed revision of an existing EEOC information collection.
Senate Debates Energy Legislation
By Frank Vlossak
On January 27, the Senate opened debate on the “Energy Policy Modernization Act of 2015” (S. 2012). The Senate Energy and Natural Resources Committee approved the legislation by an 18-4 vote on July 30, 2015, and reported it to the Senate (S.Rept. 114-138) on September 9, 2015. On January 26, Murkowski introduced a substitute amendment (SA 2953), which is a modified version of the legislation that will serve as the base text for debate and further amendment. The legislation is divided into five titles covering: “Efficiency”; “Infrastructure”; “Supply”; “Accountability”; and “Land and Water Conservation Fund Reauthorization”. The bill includes provisions addressing: appliance, building and manufacturing efficiency; liquefied natural gas (LNG) exports; energy commodity market oversight; hydroelectric power; geothermal energy; U.S. helium reserves; and critical minerals.
Energy Outlook 2016
By Frank VlossakThe past year saw significant legislative and regulatory action on energy policy and energy infrastructure issues. 2016 will continue this pace of activity. In 2015, Congress:
- Advanced energy policy legislation, which includes reforms to the federal approval process for natural gas pipelines and the permit process for cross-border energy infrastructure.
- Began work on updates to the pipeline safety statute.
- Enacted legislation repealing the ban on crude oil exports.
The Executive Branch also took action in the energy sphere last year:
- On November 6, 2015, President Obama announced his Administration had rejected TransCanada’s application for a Presidential Border-Crossing Permit.
- The Pipeline and Hazardous Materials Safety Administration (PHMSA) published proposed rules that would expand regulation of oil and hazardous liquid pipelines.
- PHMSA also issued proposed rules covering operator qualifications, notification requirements for pipeline spills and incidents, and other issues.
- PHMSA finalized comprehensive rules targeting crude oil rail safety, including a mandated phase-out of legacy tank cars.
- The Federal Energy Regulatory Commission (FERC) issued the new five-year rate index for liquid pipelines.
Key policy developments in 2016 are expected to include:
- Congress will continue work on pipeline safety legislation, with the full Senate potentially voting on the bill approved by the Commerce Committee early in the year.
- The Senate may take up the energy bill approved by the Senate Energy and Natural Resources Committee in July, 2015.
- PHMSA is expected to issue a proposed rule on natural gas pipeline safety, which would parallel liquid pipeline safety Notice of Proposed Rulemaking (NPRM) published in 2015.
- The Environmental Protection Agency (EPA) is expected to propose new regulations on the use of PCBs, which will affect natural gas pipelines.
House Passes Energy Legislation
By Frank VlossakOn December 3, the House of Representatives approved the “North American Energy Security and Infrastructure Act of 2015” (H.R. 8) by a 249-174 vote. The House Energy and Commerce Committee approved the legislation on September 30. As described in the Committee’s report (H.Rept. 114-347), the legislation includes provisions that would:
- Enhance the Federal Energy Regulatory Commission’s (FERC) “role as the lead agency to coordinate concurrent [interstate natural gas pipeline] permit reviews, establish timelines, and require transparency in the process.”
- Establish “an interagency task force to coordinate with Canada and Mexico on mutually-beneficial energy policy decisions affecting North America…”
- Direct the Department of Energy (DOE) to “streamline the regulatory process for authorizing U.S. LNG exports by establishing a thirty day deadline for DOE to act on applications at the conclusion of the review required by the National Environmental Policy Act” (NEPA).
- Direct “FERC to establish an Office of Compliance Assistance and Public Participation to be responsible for promoting improved compliance with Commission regulations, make recommendations on energy market behavior and enforcement, and perform outreach to the regulated community.”
EEOC Proposes New Employer Wellness Program Regulations
By Shane Doucet and Michael Kans
On October 29, 2015, the Equal Employment Opportunity Commission (“EEOC”) released a proposed rule that would amend the regulations implementing Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”) as they relate to wellness programs that offer limited inducements for an employee’s covered spouse to disclose his or her personal health information. After the EEOC issued its 2010 final rule on Title II of GINA, the EEOC noted that they had received numerous inquiries about “whether an employer will violate GINA and in particular, 29 CFR 1635.8(b)(2), by offering an employee and inducement if the employee’s spouse who is covered under the employer’s group health plan completes a health risk assessment (HRA) – including those involving a medical questionnaire, a medical examination (e.g. to detect high blood pressure or high cholesterol), or both – that seeks information about the spouse’s current or past health status, in connection with the spouse’s receipt of health or genetic services as part of an employer-sponsored wellness program.” The EEOC more recently had sued Honeywell International on October 27, 2014 alleging that their wellness program violated GINA because employees were penalized if their spouse did not complete a biometric screening. The U.S. District Court later denied the EEOC’s request for a temporary restraining order for Honeywell’s wellness program and, ever since, a cloud of uncertainty remained as to whether the EEOC would sue on these grounds again in the future. Instead, the EEOC is using its rulemaking authority to now address this issue.
New Proposed Hazardous Liquid Pipeline Safety Rule
By Frank Vlossak
On October 1, the Pipeline and Hazardous Material Safety Administration (PHMSA) released the Notice of Proposed Rulemaking (NPRM) titled “Pipeline Safety: Safety of Hazardous Liquid Pipelines.” The NPRM proposes significant new requirements for operators of crude oil, refined product and other hazardous liquid pipelines, including requirements to: conduct integrity assessments for all pipeline segments; repair defects found at any location within set deadlines; and install leak detection systems on all new pipelines. Public comments on the NPRM must be submitted by January 8, 2016. PHMSA officials have also indicated that the NPRM will be subject to discussion at the next meeting of the Liquid Pipeline Advisory Committee, which may be held before the end of the year.
SEC Tick Pilot: Will It Be Delayed?
By David E. Franasiak, Joel G. Oswald, and Rebecca Konst
On April 5, 2012, the Jumpstart Our Business Startups (JOBS) Act was signed into law. The Act requires the SEC “to write rules and issue studies on capital formation, disclosure and registration requirements.” Section 106(b) of the JOBS Act required the SEC to conduct a study and report to Congress on “how decimalization affected the number of initial public offerings (IPOs) and the liquidity and trading of smaller capitalization company securities.” This memo highlights the implementation dates and progress made thus far.
Administration Poised to Release Liquid Pipeline Safety Proposal
On September 18, Pipeline and Hazardous Material Safety Administration (PHMSA) Administrator Marie Theresa Dominguez told the Senate Commerce Committee that the agency anticipates publication of the hazardous liquid pipeline safety Notice of Proposed Rulemaking (NPRM) within the next week. PHMSA began the process of developing this NPRM in 2010, with publication of an Advance Notice of Proposed Rulemaking (ANPRM) titled “Pipeline Safety: Safety of On-Shore Hazardous Liquid Pipelines”. PHMSA stated that it is “considering whether changes are needed to the regulations covering hazardous liquid onshore pipelines.”
Online Lending Developments
By David E. Franasiak, Joel G. Oswald, and Hanna Laver
On July 20, the U.S. Treasury Department published a Request for Information (RFI) in the Federal Register soliciting industry feedback regarding the rapidly growing online lending marketplace. The Department defines online marketplace lending as “the segment of the financial services industry that uses investment capital and data-driven online platforms to lend to small businesses and consumers.” Specifically, Treasury is seeking public comment on: (i) the various business models of, and products offered by, online marketplace lenders to small businesses and consumers; (ii) the potential for online marketplace lending to expand access to credit to historically underserved market segments; and (iii) how the financial regulatory framework should evolve to support the safe growth of this industry.
New Proposed Pipeline Safety Regulations
By Frank Vlossak
On July 10, PHMSA published a Notice of Proposed Rulemaking (NPRM) titled “Operator Qualification, Cost Recovery, Accident and Incident Notification, and Other Pipeline Safety Proposed Changes”. The NPRM would: establish new requirements for certain pipeline employee qualifications; require that pipelines notify the National Response Center “as soon as practicable” following “confirmed discovery” of a covered incident; establish a process for recovering costs for safety review of new projects that cost more than $2.5 billion or employ new technologies; require notification to PHMSA of pipeline flow reversals and changes to the type of product transported; incorporate by reference industry standards on inline inspections and stress corrosion cracking direct assessment (SSCDA); and implement other changes to pipeline safety regulations. Comments are due on August 8, 2015.