On December 10, 2021, the Biden administration released its fall 2021 Unified Agenda of Regulatory and Deregulatory Actions, providing the public with a detailed glimpse into the regulatory and deregulatory activities under development across approximately 60 federal departments, agencies and commissions. Agendas generally are released in the fall and spring, and set target dates for each agency’s and sub-agency’s regulatory actions for the coming year. The target dates cover actions from the beginning to the end of the regulatory process, ranging from preliminary actions, including requests for information and proposed rules, to final actions, such as final rules.
While the target dates are aspirational and often not met, the agenda provides insight into the short-term focus for the agency, and includes long-term action items to allow relevant parties to begin considering the potential impact of these regulations on their organization. The 2021 fall agenda reported on more than 2,600 rules and regulations. Below, we have highlighted a few of the Department of Labor (DOL) and Department of Transportation (DOT) regulatory items that could be of importance to the tree care industry.
The DOL controls various agencies that regulate workplace activities for about 150 million workers and 10 million workplaces. In its Fall 2021 Statement of Regulatory Priorities, DOL expressed its desire to increase the welfare of workers and safety of workplaces, focusing specifically on promoting equity through the empowerment and strengthened protection of “vulnerable workers.”
Tree care standard
Most important for TCIA members, the DOL’s Occupational Safety and Health Administration (OSHA) has prioritized the implementation of a tree care operations standard and is targeting the issuance of a Notice of Proposed Rulemaking (NPRM) for June 2022. Since the late 1990s, TCIA has called on OSHA to issue a workplace safety standard for the industry. The Association formally petitioned the agency for a rulemaking in 2006, and since then has advocated for the agency to move forward with the rulemaking process.
Throughout 2021, TCIA has been in constant contact with OSHA and Congress to prevent further delay in the development of this crucial standard, and we are pleased to see that our standard’s target date has remained a priority for the agency. While other industries’ standards have been delayed by 10 months or more, our standard’s target date remains relatively unchanged from the spring publication of the regulatory agenda – a significant achievement given OSHA’s implementation of two Emergency Temporary Standards in the interim.
Heat-illness-prevention standard
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. Emphasized by the administration and echoed by the agency, heat stress, serious heat illness and heat-induced death are fast-growing risks due to the rising global temperatures associated with climate change. In response, OSHA issued an ANPRM on October 27, 2021, to begin a dialogue and engage with stakeholders to explore the potential for rulemaking on a heat standard. The ANPRM comment period was set to close on January 26, 2022, after which OSHA will review the submitted information prior to deciding whether to pursue regulatory action.
The Biden administration is additionally seeking to address these hazards through the formation of a Heat Illness Prevention Work Group within OSHA’s National Advisory Committee on Occupational Safety and Health (NACOSH), in order to provide a better understanding of the challenges and best practices for protecting workers. Such administrative actions will be supported by new and ongoing heat-hazard data-collaboration efforts by agencies, including the Centers for Disease Control and Prevention (CDC), the Department of Health and Human Services (HHS), the National Oceanic and Atmospheric Administration (NOAA) and the Environmental Protection Agency (EPA).
H-2B reform
The fall 2021 agenda also saw the DOL’s Employment and Training Administration (ETA) and Wage and Hour Division (WHD), the Department of Homeland Security (DHS) and the U.S. Citizenship and Immigration Services’ (USCIS) joint proposal to amend H-2B non-immigrant visa-program regulations. The NPRM, targeted for June 2022, would establish standards and procedures for employers seeking to hire foreign, temporary nonagricultural workers for certain itinerant job opportunities, including utility vegetation management.
Currently, the H-2B visa program permits tree care companies to temporarily hire carefully vetted noncitizens to fill gaps during busy work seasons when American workers cannot be found. However, the annual allotment of 66,000 visas for the program is far outstripped by demand, leaving many companies without an adequate workforce for their peak seasons. For instance, the DOL’s Office of Foreign Labor Certification (OFLC) received petitions for 136,555 worker positions from employers for the second half of the 2022 Fiscal Year. In response to stakeholder concerns, DHS announced on December 20, 2021, the availability of an additional 20,000 H-2B visas for fiscal year 2022, and previewed regulatory plans to incorporate further program efficiencies.
CDLs
The DOT’s fall 2021 regulatory priorities focused on increasing the safety and efficiency of transportation systems to protect and equitably support American communities. As part of the agency’s effort to promote efficiency, the Federal Motor Carrier Safety Administration (FMCSA), a DOT sub-agency with the primary mission of ensuring safety in motor-carrier operations, announced its intent to issue an NPRM in March 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.
Lara Dunkelberg is a legislative assistant with Ulman Public Policy, TCIA’s Washington, D.C.-based advocacy and lobbying partner.
Want to know more? Reach out to Aiden O’Brien, TCIA’s advocacy & standards manager, at aobrien@tcia.org.
