Over the last year, the Trump administration has taken major steps to roll back burdensome rules and regulations issued by the Obama administration. In his first two months in office, President Trump signed Executive Order 13777, “Enforcing the Regulatory Reform Agenda,” and Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs,” which create regulatory reform task forces to remove burdensome regulations and prevent agencies from issuing unnecessary regulations with a so-called “one in, two out” policy.
According to a recently released status report from the Office of Information and Regulatory Affairs on E.O. 13771, these efforts have resulted in $8.1 billion in lifetime net regulatory cost savings, with many of these rolled back regulations having a direct impact on ABC members and the construction industry at large. For more information, ABC members can watch the “2017 Regulatory Roundup” archived webinar in the ABC Academy.
U.S. Department of Labor and Federal Acquisition Regulatory Council
Blacklisting Final Rule Eliminated
On Nov. 6, three federal agencies issued a final rule amending the Federal Acquisition Regulation (FAR) to withdraw the Fair Pay and Safe Workplaces final rule, commonly referred to as “blacklisting,” and President Barack Obama’s Executive Order 13673. Additionally, the Department of Labor (DOL) withdrew the corresponding guidance document.
The agencies’ action follows President Donald Trump’s decision to sign H.J. Res. 37, which blocked the implementation of the controversial final rule through the Congressional Review Act. Additionally, the resolution prevents future administrations from promulgating a similar rule—essentially permanently eliminating the rule.
Persuader Final Rule Blocked
On June 12, the DOL issued a notice of proposed rulemaking to rescind the persuader final rule. On Aug. 11, ABC submitted comments to the DOL in support of its proposal to rescind the rule. On Dec. 14, the Trump administration released its Fall 2017 Unified Agenda of Regulatory and Deregulatory Actions, which stated that the DOL plans to publish a final rule in January 2018 to rescind the persuader rule.
Published in the Federal Register on March 24, 2016, the persuader final rule would have significantly broadened the reporting requirements for employers, attorneys, trade associations and other third-party advisors under the Labor-Management Reporting and Disclosure Act by redefining what is meant by labor relations “advice.” On Nov. 16, 2016, the U.S. District Court for the Northern District of Texas issued a permanent injunction blocking the final rule.
Overtime Rule Blocked
On Sept. 25, ABC submitted comments to DOL’s Wage and Hour Division on its request for information (RFI) on the 2016 overtime final rule, officially named the Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees. ABC also filed comments with a coalition of business groups and other stakeholders as a member of the Partnership to Protect Workplace Opportunity. According to the Fall 2017 Unified Agenda, the DOL plans to issue a notice of proposed rulemaking (NPRM) in October 2018 to propose an updated salary level for exemption.
The final overtime rule, had it gone into effect, would have changed the federal exemptions to overtime pay under the Fair Labor Standards Act for “white collar” workers by doubling the current minimum salary level for exemption from $23,660 to $47,476 per year and automatically increasing it every three years.
On Aug. 31, the U.S. District Court for the Eastern District of Texas granted a motion for summary judgment against the final overtime rule and converted its earlier preliminary injunction (issued Nov. 22, 2016) to a permanent injunction. ABC participated in the legal challenge that resulted in the court overturning the rule.
Safety, Health and Environment Regulations
Volks Rule Eliminated
Congress passed resolution H.J. Res. 83 and President Trump signed it into law on April 3, 2017, permanently eliminating the Volks rule.
The Volks final rule, or Clarification of an Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness, would have extended the time period in which OSHA could cite an employer for recordkeeping violations from six months to up to five years. Finalized by the Obama administration, the rule would have imposed a massive paperwork burden on contractors without improving jobsite safety.
Enforcement Guidance Issued on Respirable Crystalline Silica
On Oct. 19, the U.S. Department of Labor’s Acting Deputy Assistant Secretary Thomas Galassi issued a memorandum on Interim Enforcement Guidance for the Respirable Crystalline Silica in Construction Standard. The memo provides interim enforcement guidance to compliance safety and health officers (CSHOs) for enforcing the standard, stating:
Effective Oct. 23, 2017, OSHA will fully enforce all appropriate provisions of the Silica in Construction Standard. This memorandum will serve as interim enforcement guidance while the standard’s companion compliance directive is proceeding through the review process. It will expire when the compliance directive becomes effective and available to the field.
On Oct. 25, ABC National offered ABC members a webinar on the final silica rule, which is archived in ABC’s Academy.
Silica remains a top priority for ABC National, and we continue to have conversations with the U.S. Department of Labor.
Learn more about the final silica rule here and new and revised OSHA fact sheets here.
Electronic Injury and Illness Reporting: Updated Deadline
Under DOL’s Electronic Injury Reporting and Anti-Retaliation final rule, also known as Improve Tracking of Workplace Injuries and Illnesses, certain employers were required to electronically submit the information from their completed 2016 Form 300A by Dec. 15. On Dec. 18, the Occupational Safety and Health Administration (OSHA) announced in a press release that they will continue accepting 2016 OSHA Form 300A data through the Injury Tracking Application (ITA) until midnight on Dec. 31, 2017. OSHA will not take enforcement action against those employers who submit their reports after the Dec. 15, 2017 deadline but before Dec. 31, 2017 final entry date. Starting Jan. 1, 2018, the ITA will no longer accept the 2016 data.
The final rule requires many employers to electronically submit detailed injury and illness records to OSHA that will be posted on the Internet. Also, some forms of post-accident drug testing and accident-free incentive programs are deemed to be unlawfully retaliatory.
Enforcement of the anti-retaliation provisions of the final rule went into effect on Dec. 1, 2016.
According to the Trump administration’s Fall 2017 Unified Agenda, an NPRM, which would seek to reconsider, revise or remove provisions of the final rule, is expected to be published in December 2017. More information about the final rule can be found on DOL’s website and on the Injury Tracking Application landing page.
WOTUS Rule Under Review
Since Oct. 9, 2015, the Environmental Protection Agency’s (EPA) 2015 “Waters of the United States” (WOTUS) final rule has been under a nationwide stay by the U.S. Sixth Circuit Court of Appeals. The WOTUS final rule would have dramatically expanded the scope of federal authority over water and land uses across the country, triggering a substantial increase in permitting requirements and leading to project delays and cost increases for the construction industry.
On June 27, the EPA and Department of the Army and Army Corps of Engineers (the Corps) announced they are proposing to rescind the 2015 Clean Water Rule and re-codify the regulatory text that existed prior to the 2015 WOTUS rule. The Corps and EPA published a notice in the Federal Register on July 27. The EPA plans to issue a final rule rescinding WOTUS in April 2018 and a proposed rule to redefine WOTUS in May 2018.
During an Oct. 10 teleconference for the construction sector hosted by the EPA and the Corps, ABC reiterated its opposition to the 2015 final rule and urged the agencies to develop a new definition consistent with U.S. Supreme Court precedent and congressional intent.
Beryllium Exposure for Construction Sector: Further Regulatory Action Pending
On Jan. 9, 2017, OSHA issued a final rule on beryllium exposure, which included the construction industry. The final rule was expanded from the proposed rule, which focused on general industry.
On June 27, OSHA issued a proposed rule to revoke the ancillary provisions of the final rule but retain the permissible exposure limit of .2 micrograms per cubic meter of air as an eight-hour weighted average and the short-term exposure limit of 2.0 micrograms per cubic meter of air, which is fifteen minutes. ABC submitted comments in support of the proposed rule on Aug. 28, 2017.
According to the Fall 2017 Unified Agenda, OSHA will issue a final rule in September 2018.
This article is intended for informational purposes only and does not constitute legal advice or opinion.
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