Executive Orders that Affect the Aggregate Industry

SOURCE: NSSGA | January 28, 2021

Since taking office, President Biden has issued dozens of Executive Orders (EO) that may impact your business. While EOs are largely written to reemphasize policy objectives, they do present a formal roadmap of how federal agencies plan to enact their goals. NSSGA has summarized these measures, along with the actions we are taking to engage policymakers. 

Emergency Temporary Standard at the Department of Labor

On January 21, President Biden signed an EO directed at the Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA) entitled, “Executive Order on Protecting Worker Health and Safety.” The EO requirements are outlined below and includes strict requirements for OSHA specifically.

  • OSHA must: (1) issue revised guidance to employers on workplace safety during the pandemic within two weeks; (2) consider whether an Emergency Temporary Standard (ETS) is necessary and if so, issue one by March 15; (3) review its enforcement efforts and identify short, medium and long-term changes that could be made to better protect workers and ensure equity in enforcement; (4) launch a national program focusing enforcement on violations that put the largest number of workers at risk; and (5) coordinate a multilingual outreach campaign with a multitude of stakeholders.
  • In contrast, MSHA does not have a set of enumerated requirements or explicit deadlines they must meet. The agency must, “consider whether any emergency temporary standards on COVID-19 applicable to coal and metal or non-metal mines are necessary, and if such standards are determined to be necessary and consistent with applicable law, issue them as soon as possible.”
  • It was anticipated that President Biden would immediately call for both OSHA and MSHA to issue Emergency Temporary Standards, so the flexibility in the EO is welcome. NSSGA sent a letter to MSHA and has further engaged with the agency since the EO was signed. We will continue working with MSHA and our allies on Capitol Hill to prevent the enactment of a burdensome ETS as Department of Labor nominees move through the Senate.

Minimum Wage and Workforce Provisions

As part of his $1.9 trillion coronavirus relief proposal, the America Rescue Plan, President Biden included a provision to increase the federal minimum wage to $15 per hour. Separately, he also issued an EO that requires federal contractors to pay a $15 minimum wage and provides emergency paid leave to workers. This EO also asked the Department of Labor to “consider clarifying that workers have a federally guaranteed right to refuse employment that will jeopardize their health and if they do so, they will still qualify for unemployment insurance.”

Regulatory Review

President Biden signed an extensive EO on energy and environment regulatory issues. This EO stops all Trump-era rules and litigation and enables a path forward for new actions:

  • Old rules: The EO identifies more than 100 recent Environmental Protection Agency (EPA) regulations to be targeted for reconsideration, including the science transparency rule (Reg. 2080-AA14) and the Clean Air Act cost-benefit analysis rule (Reg. 2060-AU51), both of which have been supported by NSSGA. The action also requires the Council on Environmental Quality to rescind Trump administration guidance limiting the inclusion of greenhouse gas emissions in agency environmental reviews and the NEPA review. However, for the Biden administration to change any final rule from the previous administration, a lengthy process of new rulemaking (subject to notice and comment and litigation) will be required. It is virtually impossible for all of these rules to be altered in addition to promulgating new rulemaking. The Biden administration will need to carefully prioritize rules that align with their priorities to complete efforts within four years.
  • Social Cost of Carbon: It reinstates an interagency working group to develop calculations for the social costs of greenhouse gases, including the well-known social cost of carbon used in many rulemakings.
  • Office of Information and Regulatory Affairs (OIRA): A separate order that has largely flown under the radar will trigger a reconsideration of OIRA’s regulatory review process and specifically asked for recommendations on how the process can “…promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations.”

We expect more executive orders related to environment and climate coming this week. Gina McCarthy, Biden’s domestic climate czar, said over the weekend the administration wants to address climate change in “every single piece of the federal budget.” NSSGA will be working with Senators as they examine the incoming nominees to agencies expected to implement the environmental agenda and continue to stay actively engaged in any subsequent rulemaking process.

Domestic Preference

On Monday, President Biden signed an EO that aims to boost support for American industry and the Jones Act. While the specific order has no underlaying changes specifically to the laws governing sourcing of materials in federal projects, NSSGA will be closely monitoring its implementation and any subsequent lawmaking related to domestic preference. Specifically, the EO:

  • directs agencies to close current loopholes in how domestic content is measured and increase domestic content requirements in existing Buy American rules;
  • seeks to increases oversight of potential waivers to domestic preference laws;
  • connects new businesses to contracting opportunities by requiring active use of supplier scouting by agencies;
  • reiterates the President’s strong support for the Jones Act; and
  • directs a cross-agency review of all domestic preferences.

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