Biden Administration Updates Its Regulatory Plan for the Remainder of 2022

On June 21, 2022, the Biden administration released its Spring 2022 Unified Agenda of Regulatory and Deregulatory Actions, providing a detailed glimpse into the regulatory and deregulatory activities under development across approximately 67 federal departments, agencies and commissions. These semi-annual regulatory agendas report on the actions administrative agencies plan to issue in the near and long term.

While the target dates are aspirational and often not met, the agenda provides insight into the short-term focus for agencies and includes long-term action items to allow relevant parties to begin considering the potential impact of these regulations. Below are highlights of anticipated regulatory actions with relevance to tree care employers that certain federal agencies may embark upon between now and the end of 2022.

Occupational Safety and Health Administration (OSHA)

Tree Care Standard

OSHA has prioritized the implementation of a tree care operations standard and is targeting the issuance of a Notice of Proposed Rulemaking (NPRM) for December 2022. As many readers are no doubt aware, OSHA largely regulates the tree care industry through a patchwork of standards intended for other industries that only peripherally address the hazards arborists face. Disappointingly, this approach to compliance and enforcement fails to provide clear guidance for employers, workers and OSHA officers on effective safety measures for the industry and regularly places arborists in danger. Because of this haphazard approach, TCIA has been advocating for the agency to establish a tree
care-specific standard based on the industry’s established consensus standard, and we are encouraged to see that its development remains a priority of the agency.

While the target date has slipped back a few months from the Fall 2021 agenda’s anticipated release date, this is not surprising, as OSHA’s resources have been fully dedicated to responding to the threat of COVID-19. At a hearing before the Workforce Protections Subcommittee in May 2022, the head of OSHA, Doug Parker, repeatedly called for additional funds to rebuild OSHA’s workforce, including the staff responsible for writing new regulations. Also, he noted that the agency is working on a final rulemaking based on the healthcare Emergency Temporary Standard (ETS) that has consumed their resources. With the regulatory agenda forecasting September 2022 as the completion date for the Healthcare ETS, OSHA should be able to reallocate resources to address other priorities of the agency this fall.

Heat-illness prevention in outdoor and indoor work settings

As part of the Biden administration’s multi-agency effort to address the dangers of extreme heat exposure, OSHA also has prioritized the development of a standard to protect individuals from heat hazards in the workplace. OSHA issued an advance notice of proposed rulemaking (ANPRM) on October 27, 2021, to explore the potential for rulemaking on a heat standard. The ANPRM asked the regulated public more than 100 questions on topics that included heat-stress thresholds, heat-acclimatization planning and exposure monitoring.

TCIA submitted comments in response to the ANPRM with information regarding the practical measures our industry takes to recognize and mitigate the risk of heat illness, including best practices to address some of the many questions OSHA asks in the ANPRM. In total, OSHA received more than 1,000 comments in response to the ANPRM, and began analyzing the comments in June 2022. Surprisingly, no other regulatory actions are planned for the remainder of the year, which is likely why Assistant Secretary Parker, during his May hearing, would not commit to issuing a final rule on heat stress by Spring 2024.  

While a standard on heat illness may be a couple of years away, in the meantime OSHA is using other enforcement tools to address the issue. On April 12, 2022, OSHA announced its first-ever National Emphasis Program (NEP) related to heat illnesses and injuries for both outdoor and indoor workers. Under the program, OSHA inspectors will target workplaces in more than 70 industries at “high risk” for heat exposure – including the tree care industry – whenever the National Weather Service announces heat warnings or advisories for the area where the business is located.

Improve tracking of workplace injuries and illnesses

On March 28, 2022, OSHA issued a new Notice of Proposed Rulemaking to improve tracking of workplace injuries and illnesses. The rule would require an establishment, defined as a single physical location where business is conducted, with 100 or more employees in specified industries to electronically submit information from its OSHA Forms 300, 301 and 300A to OSHA on an annual basis. The rule also would update the classifications system to determine the industries covered by this submission requirement and require the company name to be included. OSHA plans to issue a final rule in December 2022. At this point, tree care is not one of the industries covered by this part of the proposed rule.

Federal Motor Carrier Safety Administration (FMCSA)

Safety fitness procedures

According to the regulatory agenda, the Federal Motor Carrier Safety Administration (FMCSA) is planning to release an ANPRM in July 2022 seeking information on how the agency might use data and resources more effectively to identify unfit motor carriers and to remove them from the nation’s roadways. The FMCSA would seek public comment about the use of available safety data, including inspection data, in determining carrier fitness to operate. The agency also would seek public input on possible changes to the current three-tier safety-fitness-rating structure. The action also would include a review of the list of Federal Motor Carrier Safety Regulations (FMCSRs) that the agency uses in its safety-fitness-rating methodology.

Increased flexibility for testing and for drivers after passing the skills test

The FMCSA announced its intent to issue a NPRM in August 2022 seeking additional information and public comment on amendments to Commercial Driver’s License (CDL) requirements. Specifically, the proposed rule seeks input on the benefits of permitting State Driver Licensing Agencies (SDLAs) to administer the CDL knowledge test prior to issuing a commercial learner’s permit (CLP), and to administer the CDL skills test to CLP holders who are domiciled in other states. The information will help the FMCSA determine whether greater flexibility in CDL administration can promote greater efficiency while maintaining necessary safety standards.

Basil Thomson is a senior associate with Ulman Public Policy, TCIA’s Washington, D.C.-based advocacy and lobbying partner.

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