On January 4, 2023, the Biden administration released its Fall 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 of agencies. Also, it 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 relevant to tree care employers that the Department of Labor (DOL) and Department of Transportation (DOT) may embark on in the coming months.
Occupational Safety and Health Administration (OSHA) Tree Care Standard
The development and implementation of a Tree Care Standard by DOL’s Occupational Safety and Health Administration (OSHA) has been a priority of TCIA since the 1990s. The Association has worked with OSHA, the Small Business Administration (SBA) and Congress to inform policymakers of the unique role of arborists and specific operating practices that increase worker safety. These efforts have proven successful in garnering OSHA engagement and participation in developing a rule. OSHA conducted a stakeholder meeting in July 2016 and completed the Small Business Regulatory Enforcement Fairness Act (SBREFA) process in 2020. The latest iteration of the regulatory agenda targets May 2023 for the issuance of a Notice of Proposed Rule Making (NPRM).
Throughout 2022, TCIA worked to educate policymakers and the Administration on the importance of a separate standard. With the instrumental help of Mead Tree and Turf Care Inc., an accredited, 33-year TCIA member company based in Woodbine, Maryland, the Association orchestrated a demonstration for key policymakers – including the head of OSHA, Assistant Secretary Parker – and their staff members. The demonstration included critical work practices TCIA promotes among membership as a means to lower accident rates and improve worker safety, specifically the practice of hoisting climbers via the crane-access method.
TCIA also welcomed Congresswoman Alma Adams to TCI EXPO ’22 in Charlotte, where she observed EXPOClimb demonstrations, toured the show floor and spoke with TCIA members about the industry’s need for a separate OSHA standard. As Rep. Adams will serve as the Ranking Member on the Workforce Protections Subcommittee – which is charged with oversight of OSHA – in the new congress, she is a key figure in Congressional outreach to OSHA. TCIA will build on these successful events into 2023 to encourage OSHA and the Administration to continue progressing toward issuance of a Tree Care Standard NPRM and corresponding final rule.
Heat Illness Prevention in Outdoor and Indoor Work Settings
Consistent with the priorities of the Biden administration, OSHA has sought to address the dangers of heat exposure in the workplace via a rulemaking on “Heat Illness Prevention in Outdoor and Indoor Work Settings.” To initiate this process, OSHA published an informational request known as an Anticipated Notice of Proposed Rule Making (ANPRM) in October 2021. Also, it instructed the National Advisory Committee on Occupational Safety and Health (NACOSH) to establish a Heat Injury and Illness Prevention Work Group to develop recommendations on potential elements of a proposed heat-injury-and-illness-prevention standard.
While the regulatory agenda indicates that OSHA targeted January 2023 to initiate the next stage of the rulemaking process—convening a Small Business Advocacy Review (SBAR) panel—that is not expected to begin until the May 2023 conclusion of OSHA’s existing SBAR panel on a potential standard related to workplace violence in healthcare settings.
Improve Tracking of Workplace Injuries and Illnesses
The Fall 2022 regulatory agenda also targets March 2023 for the release of the “Improve Tracking of Workplace Injuries and Illnesses” final rule. OSHA’s proposed rulemaking would require designated establishments with 100 or more employees to electronically report Form 300A (Summary of Work-Related Injuries and Illnesses), Form 300 (the Log of Work-Related Injuries and Illnesses) and Form 301 (the Injury and Illness Incident Report). Due to an update to the industry classification system (North American Industry Classification System, NAICS) used to determine which industries appear on the designated list, NAICS 5617 – which covers the tree care industry – has been removed from OSHA’s proposal and may not be impacted by the final rule.
Additional notable rulemakings in consideration at OSHA
In addition to the aforementioned rulemakings, two new proposals have appeared on the regulatory agenda that seem concerning. A proposal to require businesses to allow union representatives to accompany OSHA agents during health and safety inspections is targeted to be released in May 2023. The proposal looks to be an attempt to codify OSHA’s February 21, 2013, letter of interpretation, which was subsequently rescinded following a lawsuit.
OSHA also announced it plans to issue an interim final rule in June 2023 on the use of administrative subpoenas during investigations, which would take effect without public input.
Wage and Hour Division (WHD)
Another agency within the Department of Labor, the Wage and Hour Division (WHD), plans to issue a final rule in May 2023 that would narrow who qualifies as an independent contractor. This action may create challenges for tree care companies that utilize contract climbers in their operations. To learn more about this rulemaking, check out the December 2022 TCI Magazine article, “Change Looming for Who Qualifies as an Employee vs. Independent Contractor.”
Also in May 2023, the WHD plans to issue a Notice of Proposed Rulemaking (NPRM) addressing overtime pay requirements for certain “white-collar” employees, including executive, administrative and professional employees, currently exempt from the requirements under the Fair Labor Standards Act (FLSA). This rulemaking will raise the minimum salary threshold under which all employees must be paid overtime.
Employment and Training Administration (ETA)
DOL’s Employment and Training Administration is targeting June 2023 for the release of a proposed rule titled “National Apprenticeship System Enhancements.” This rule would “strengthen, expand, modernize and diversify the National Apprenticeship System by enhancing worker protections and equity, improving the quality of registered apprenticeships and revising the state governance provisions. It also would more clearly establish critical pipelines to registered apprenticeships, such as pre-apprenticeships, so that the National Apprenticeship System is more responsive to current worker and employer needs.”
Also, ETA, in conjunction with U.S. Citizenship and Immigration Services, plans to issue a proposed rule in August 2023 to update the H-2B visa program. According to DOL, the updates would “establish standards and procedures for employers seeking to hire foreign, temporary non-agricultural workers for certain itinerant job opportunities, including entertainers, tree planting and utility vegetation management.”
Federal Motor Carrier Safety Administration (FMCSA) Safety Fitness Procedures
The Department of Transportation’s Federal Motor Carrier Safety Administration is targeting March 2023 for the issuance of an Advanced Notice of Proposed Rulemaking (ANPRM) on Safety Fitness Procedures. The agenda indicates that FMCSA will seek information on how the agency might use data and resources to more effectively identify unfit motor carriers and remove them from the nation’s roadways.
The agency also seeks public input on possible changes to the current three-tier safety-fitness-rating structure. Additionally, the action would include a review of the Federal Motor Carrier Safety Regulations (FMCSRs) that the agency uses in its safety-fitness-rating methodology.
Another rulemaking underway at the FMSCA, targeted for January 2023, but which has been delayed, is the Amendments to the Commercial Driver’s License Requirements; Increased Flexibility for Testing and for Drivers After Passing the Skills Test rulemaking. This regulatory action would increase testing flexibility and efficiency for drivers who pass the skills test by permitting State Driver Licensing Agencies (SDLAs) to administer the Commercial Driver’s License (CDL) knowledge test before issuing a commercial learner’s permit (CLP), and to administer the CDL skills test to CLP holders domiciled in other states.
DOT Office of the Secretary
The regulatory agenda also details plans for the Department of Transportation’s (DOT) Office of the Secretary to issue two rulemakings that would increase efficiency and employer flexibility. To improve efficiency, the Office of the Secretary is working toward a proposed rulemaking that would allow DOT-registered employers and contractors to use and store electronic documents and permit electronic signatures on forms such as the Alcohol Testing Form (ATF). The agenda targets August 2023 for the NPRM. In addition to this rulemaking, employers await a final rule that was targeted for December 2022, but has been delayed. That rule would allow DOT-regulated employers the option of collecting oral fluid specimens rather than urine specimens when conducting drug testing.
Given that regulatory action often has the ability to directly impact member operations, TCIA actively follows and engages relevant parties to ensure that the voice of arborists nationwide is heard. We will continue to inform readers of developments surrounding the Tree Care Standard and other rules with the potential to impact membership.
Josh Leonard is a legislative assistant with Ulman Public Policy, TCIA’s Washington, D.C.-based advocacy and lobbying partner.
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