On June 13, 2023, the Biden administration released its Spring 2023 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.
Department of Labor
TCIA closely monitors DOL regulations due to their potential impact on tree care businesses. However, with moderate Democrat senators still undecided on Acting Secretary Julie Su’s nomination to lead DOL, most agencies within DOL have yet to issue Final Rules or Notices of Proposed Rulemaking (NPRMs), leading to regulatory delays. Divisive rulemakings on worker status and workplace-
injury-and-illness tracking, among others, have not seen action, as the DOL has hesitated to issue rulemakings that could jeopardize Su’s chances to serve as Secretary of Labor. These delays have impacted the entirety of DOL’s regulatory agenda.
Occupational Safety and Health Administration (OSHA)
Tree Care Standard
Regulatory delays across DOL also have impacted OSHA’s industry-supported “Tree Care Standard.” Like other standards listed as a top priority in DOL’s FY 2024 Budget Request, issuance of a proposed rulemaking has been delayed to December 2023. While other high-priority standards that are more resource intensive also have been delayed, TCIA sprang into action to let OSHA know that further delays are unacceptable.
As part of our efforts, David White, TCIA president and CEO, penned a letter to members of Congress in June highlighting the Association’s commitment to safety during National Safety Month. The letter emphasized the industry’s dire need for a clear federal safety standard tailored to the hazards in tree care work.
Additionally, TCIA activated its grassroots network to provide Association members a platform to inform their representatives in Congress of Association members’ presence in the district, and to encourage them to urge OSHA to move forward with the tree care standard. This was done primarily through email and social media. To learn more about the standard and the Association’s efforts, visit advocacy.tcia.org.
Heat-illness prevention
One of OSHA’s top priorities under the Biden administration is the promulgation of a standard to regulate workplace exposure to hazardous heat in outdoor and indoor work settings. Currently, the standard is in the pre-rulemaking stage, and, while the agency had hoped to begin its statutorily mandated Small Business Advocacy Review (SBAR) panel at the beginning of 2023, it is now planning to begin that process in mid-August.
SBAR panels are required for OSHA proposals expected to have a significant impact on a large number of small businesses. Mandated by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996, SBAR panels are comprised of members from the Office of Advocacy at the Small Business Administration (SBA), OSHA and the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA). The panel allows small-business stakeholders to provide insight into how proposed regulations will impact their operations and issues a report that OSHA must consider before moving forward in the rulemaking process. Several TCIA members participated in the SBAR panel for the tree care standard, and the industry will do so again for this panel, aiding OSHA’s understanding of the impact a heat regulation could have on tree care businesses.
Improve Tracking of Workplace Injuries and Illnesses
In addition to OSHA’s abovementioned high-priority rulemakings, the agency continues to pursue the release of the delayed “Improve Tracking of Workplace Injuries and Illnesses” final rule. The rulemaking would require designated establishments with 100 or more employees to electronically report Form 300A (Summary of Work-Related Injuries and Illnesses), Form 300 (Log of Work-Related Injuries and Illnesses) and Form 301 (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.
Employee Benefits Security Administration (EBSA)
Worker Ownership, Readiness, and Knowledge
New to the Regulatory Agenda for Spring 2023 is EBSA’s “Worker Ownership, Readiness, and Knowledge.” This rulemaking, which is in the pre-rule stage, aims to address a long-standing issue for Employee Stock Ownership Plans (ESOPs) – DOL’s failure to issue regulations defining “Adequate Consideration.” While EBSA planned to hold stakeholder meetings on the rulemaking in June 2023, at the time of this writing in early July 2023, details of these meetings had not been released. This rulemaking is relevant to the industry due to the employee-ownership structures present at several companies.
ESOPs have existed for nearly 50 years, since the creation of the Employee Retirement Income Security Act of 1974 (ERISA). Yet, since the act’s implementation, no formal rulemaking on adequate consideration has been issued. Instead, the EBSA has set guidelines for adequate consideration by releasing settlements with ESOPs that have allegedly violated the principles of adequate consideration. This practice leads to confusion and anxiety for prospective and existing ESOPs, as companies are unable to feel confident that their plans are within the EBSA’s ruleset.
With the introduction of the adequate-consideration rulemaking in the June 2023 Regulatory Agenda, EBSA’s undefined control over ESOPs is anticipated to end. This should alleviate the long-standing complexity and potential liability associated with ESOPs, thereby fostering the creation of new plans and reinforcing existing ones.
Wage and Hour Division
Employee or independent-contractor classification
The DOL’s Wage and Hour Division (WHD) plans to issue a final rule in August 2023 that would narrow who qualifies as an independent contractor. Initially targeted for May 2023, the rulemaking is likely to create challenges for tree care companies that utilize contract climbers in their operations. To learn more about this rulemaking, check out the article, “Change Looming for Who Qualifies as an Employee vs. Independent Contractor,” in the December 2022 issue of TCI Magazine.
Overtime pay
Also delayed from May to August 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
DOL’s Employment and Training Administration (ETA) now targets August 2023 to publish a proposed rule entitled “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.” The target date for the proposed rule was previously listed as June 2023.
Also, ETA, in conjunction with U.S. Citizenship and Immigration Services (USCIS), 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.”
Department of Transportation: Federal Motor Carrier Safety Administration
Safety Fitness Procedures
The Department of Transportation and its Federal Motor Carrier Safety Administration (FMCSA) is pursuing a rulemaking on “Safety Fitness Procedures.” The Advanced Notice of Proposed Rule Making (ANPRM), initially scheduled to be published in March 2023, was delayed until June 2023. 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.
In addition to the delays impacting the abovementioned rule, FMCSA delays pushed the “Amendments to the Commercial Driver’s License Requirements; Increased Flexibility for Testing and for Drivers After Passing the Skills Test” NPRM from January until June 2023. 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 Office of the Secretary to issue a proposed rulemaking in August 2023 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).
Conclusion
TCIA will continue to track impactful legislation and regulations, notify its membership of relevant developments and advocate on behalf of its members. Check out the Association’s social-media pages and its advocacy site to stay up to date with the latest goings-on in Washington.
Josh Leonard is a legislative assistant with Ulman Public Policy, TCIA’s Washington, D.C.-based advocacy and lobbying partner.
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