On December 6, 2023, the Biden administration released its Fall 2023 Unified Agenda of Regulatory and Deregulatory Actions, providing a detailed glimpse into the initiatives under development across approximately 67 federal departments, agencies and commissions. These semi-annual regulatory agendas report on what these agencies plan to issue in the near and long term.
Target dates provide insight into agencies’ short-term areas of focus. Including long-term actions allows affected parties to consider the potential impact of these regulations.
TCIA highlights the following from the Fall 2023 Regulatory Agenda.
Department of Labor (DOL)
During the first half of 2023, DOL and its agencies experienced notable regulatory delays. These were primarily due to bipartisan opposition arising from President Biden’s nomination of Acting Secretary of Labor Julie Su for the official role of Secretary of Labor. As it became clear that the Administration was opting to keep Su indefinitely at the helm of the Department in an acting capacity, the DOL began to push forward with their regulatory initiatives.
Occupational Safety and Health Administration (OSHA)
Tree Care Standard
According to the Fall 2023 Regulatory Agenda, OSHA was anticipating releasing a proposed tree care standard in January 2024. This standard primarily aims to safeguard workers involved in tree pruning and removal. Considering the inherent hazards of tree care work and the current inconsistent regulatory approach by OSHA, which involves applying a mix of standards originally designed for other industries, TCIA has been actively advocating for OSHA to expedite the release of this standard. We received assurance from Assistant Secretary Parker that the standard remains a priority for the agency. For further insights into the standard and the Association’s advocacy efforts, please visit
advocacy.tcia.org.
Heat Illness Prevention in outdoor and indoor work settings
One of OSHA’s top priorities under the Biden administration is a standard to regulate workplace exposure to hazardous heat. OSHA convened a Small Business Advocacy Review (SBAR) Panel in August 2023. This panel facilitated a series of video conferences in September 2023. These conferences engaged Small Entity Representatives (SERs) from various industries, including six TCIA members, to solicit feedback on OSHA’s potential heat standard. Based on this feedback, the SBAR Panel issued a final report on November 3, 2023. It includes several findings and recommendations OSHA must consider before issuing a proposed standard.
Following the release of the SBAR report, TCIA submitted comments addressing OSHA’s regulatory framework and the report’s findings. TCIA underscored the importance of worker safety in extreme heat conditions and supported measures that protect against heat injury and illness. We also highlighted the need for regulatory flexibility due to the diverse nature of businesses in the industry.
According to the Fall 2023 Regulatory Agenda, OSHA had plans to analyze the SBAR report in January 2024, after which it will seek to develop a heat standard. For more information on TCIA’s views and the ongoing rulemaking process, see the December 2023 TCI Magazine article, “Last Call for Comments on Heat-Injury-and-Illness Rulemaking Report.”
Employee Benefits Security Administration (EBSA)
Worker Ownership, Readiness and Knowledge
The DOL’s Employee Benefits Security Administration anticipates releasing a Notice of Proposed Rulemaking (NPRM) in March 2024. It will provide “acceptable standards and procedures to establish good-faith, fair-market value for shares of a business to be acquired by an employee stock ownership plan (ESOP).”
Wage and Hour Division (WHD)
Employee or independent-contractor classification
The DOL’s Wage and Hour Division delayed its target date for the issuance of a final rule that would narrow who qualifies as an independent contractor from August 2023 to November 2023. As of the time of this writing, the final rule remains at the White House Office of Management and Budget (OMB) undergoing review, the last step before publication. The final rule may create challenges for tree care companies that utilize contract climbers in their operations. To learn more about this rulemaking, see the December 2022 TCI Magazine article, “Change Looming for Who Qualifies as an Employee vs. Independent Contractor.”
Employment and Training Administration (ETA)
National Apprenticeship System enhancements
On December 14, 2023, ETA issued a proposed rule to update the National Apprenticeship System. These updates seek to enhance worker protections and equity, improve the quality of registered apprenticeship programs and revise state-governance provisions. It also looks to strengthen the link between post-secondary education and registered apprenticeship through the establishment of registered career and technical-education apprenticeships. To learn about TCIA’s involvement with Arborist Apprenticeship, view treecareindustry association.org/business-support/arborist-apprenticeship-program/.
Temporary employment of H-2B foreign workers in the United States
The ETA, in conjunction with U.S. Citizenship and Immigration Services (USCIS), delayed plans to update the H-2B visa program from August 2023 to October 2024. According to DOL, the updates would establish procedures for employers seeking to hire foreign, temporary non-agricultural workers for certain itinerant job opportunities. These include entertainment, tree planting and utility-vegetation management.
Department of Transportation (DOT) Federal Motor Carrier Safety Administration (FMCSA)
Amendments to Commercial Driver’s License (CDL) requirements
While the Federal Motor Carrier Safety Administration targeted November 2023 to issue an NPRM to increase testing flexibility and efficiency for drivers who pass the skills test, it has yet to do so. This rulemaking would increase testing flexibility and efficiency. It would allow State Driver Licensing Agencies (SDLAs) to administer the 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.
Additional curriculum and training-provider requirement for entry-level commercial motor vehicle operators
FMCSA is pursuing an advance notice of proposed rulemaking (ANPRM) to enhance the physical safety of female truck drivers and trainees, address workplace sexual harassment and enhance pedestrian and bicyclist safety. According to the Regulatory Agenda, the FMCSA anticipates publishing the ANPRM in June 2024.
DOT Office of the Secretary
Electronic signatures, forms and records storage for drug- and alcohol-testing records
The DOT and its Office of the Secretary (of Transportation, OST) delayed plans from August 2023 to June 2024 to issue 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.
Department of Homeland Security U.S. Citizenship and Immigration Services (USCIS)
USCIS fee schedule and changes to certain other immigration benefit- request requirements
USCIS targeted April 2024 for a rulemaking to increase existing fees and establish new fees associated with immigration and naturalization requests. As proposed, the rule would increase costs by 200% for employers petitioning for H-2B visas. Given that many tree care companies rely on the H-2B program to meet demand in peak seasons, TCIA signed on to comments submitted by the H-2B Workforce Coalition, expressing concern about the rulemaking’s impact on small businesses.
Conclusion
As 2024 unfolds, the tree care industry faces a changing regulatory landscape, highlighted by the latest updates from the Biden administration. TCIA will keep our members updated while we advocate on our industry’s behalf. We encourage readers to remain engaged through the Association’s social-media pages and advocacy site.
