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June 16, 2021
On June 11, the Biden administration released its Spring 2021 Unified Agenda of Regulatory and Deregulatory Actions. The agenda lists upcoming rulemakings and other regulatory actions from each agency that the administration expects to publish through the end of the year and into 2022. ABC has prepared a summary of the actions of interest to ABC members by agency.
U.S. Department of Labor
OSHA
In October 2021, the DOL’s Occupational Safety and Health Administration plans to issue a request for information seeking public input on a possible rulemaking on heat illness prevention in indoor and outdoor settings. According to the Spring 2021 agenda, California, Washington, Minnesota and the U.S. military have issued heat protections, and given the potentially broad scope of regulatory efforts to protect workers from heat hazards, an RFI would allow the agency to begin a dialogue and engage with stakeholders to explore the potential for rulemaking on this topic.
Additionally, in December 2021, OSHA intends to issue a proposed rule on infectious diseases and examine regulatory alternatives for control measures to protect employees from infectious disease exposures to pathogens that can cause significant disease. The agency listed several workplaces where these control measures might be necessary, including health care, emergency response, correctional facilities, homeless shelters, drug treatment programs and other occupational settings where employees can be at increased risk of exposure.
In September 2021, OSHA is expected to release a proposed rule clarifying the requirements for the fit of personal protective equipment in construction.
Additionally, OSHA expects to issue a proposed rule soon to update its powered industrial trucks design standard, as well as collect information to evaluate the need to update requirements related to the maintenance and use of powered industrial trucks and training of operators.
In December 2021, OSHA plans to issue a proposed rule to restore provisions of the Obama administration’s 2016 Improve Tracking of Workplace Injuries and Illnesses Final Rule, also known as the Electronic Injury Reporting and Anti-retaliation Final Rule. The agency proposes to amend its recordkeeping regulation to restore the requirement to electronically submit to OSHA information from the OSHA Form 300 and OSHA Form 301 for establishments with 250 or more employees, which are required to routinely keep injury and illness records. Under the current regulation, these establishments are only required to electronically submit information from the OSHA Form 300A.
In April 2022, OSHA is expected to issue a proposed rule on occupational exposure to crystalline silica to determine if revisions to Table 1 in the standard for construction may be appropriate. ABC submitted comments on OSHA’s request for information on Table 1 of the silica standard as part of the Construction Industry Safety Coalition.
Wage and Hour Division
DOL’s Wage and Hour Division is expected to issue a proposed rule to update and modernize the regulations implementing the Davis-Bacon Act and others acts to provide greater clarity and enhance the usefulness of these acts in the modern economy. The department plans to issue the proposal in November 2021.
The WHD is expected to issue a proposed rule in July 2021 implementing President Joe Biden’s Executive Order 14026, Increasing the Minimum Wage for Federal Contractors, which increases the minimum wage for workers working on or in connection with a federal government contract.
WHD also stated its intent to examine joint employment relationships under the Fair Labor Standards Act. On April 12, ABC submitted comments in opposition to the proposal from the WHD to rescind the Trump-era joint employer final rule, which promised to make the joint employment test under the FLSA more narrow and focused.
Employment and Training Administration
In August 2021, DOL’s Employment and Training Administration intends to issue a proposed rule to implement President Biden’s E.O. 14016, which rescinded the Trump administration’s E.O. on promoting industry-recognized apprenticeship programs. The DOL is considering amending the sections of its apprenticeship regulations concerning Standards Recognition Entities and IRAPs.
The agency is also expected to issue a proposed rule in March 2022 regarding one of the six primary indicators of performance within the regulations implementing the Workforce Innovation and Opportunity Act. As five of the six indicators are currently defined in the regulation, OSHA is seeking feedback to incorporate a standard definition the sixth primary indicator, effectiveness in serving employers.
For more information on upcoming DOL rulemakings, see the department’s Spring 2021 agenda.
National Labor Relations Board
The National Labor Relations Board intends to issue a final rule to enhance the administration of its ethics program to identify potential conflicts of interest and amend its procedural rules to require disclosure of parties’ and other entities’ organizational relationships. The final rule is expected to be issued in June 2021.
Additionally, the NLRB plans to issue an advance notice of proposed rulemaking in September 2021 to solicit public input on the use of videoconference technology to conduct all aspects and phases of unfair labor practice case and representation case proceedings, as well as on potential amendments to its procedural rules regarding the use of videoconference technology.
U.S. Department of Transportation
The U.S. Department of Transportation’s National Highway Traffic Safety Administration intends to issue a proposed rule to update its National Environmental Policy Act implementing regulations in September 2021. On Dec. 23, ABC and several other organizations submitted comments in support of the DOT’s proposed revisions to its regulations implementing the procedural provisions of NEPA.
U.S. Department of Housing and Urban Development
In November 2021, the U.S. Department of Housing and Urban Development is expected to issue a proposed rule to amend its Federal Manufactured Home Construction and Safety Standards by adopting certain recommendations made to HUD by the Manufactured Housing Consensus Committee. Specifically, the rulemaking proposes to amend terminology used for planning considerations, revise fire safety, body and frame, and plumbing requirements, and update standards for testing, thermal protection, heating, cooling and fuel burning systems, among others.
U.S. Department of Energy
The department’s Office of Energy Efficiency and Renewable Energy intends to issue several rulemakings related to standards for various federal and commercial buildings. Rulemakings include a final rule on energy efficiency performance standards for the construction of new federal commercial and multifamily high-rise residential buildings in October 2021, a final rule on energy efficiency performance standards for the construction of new federal low-rise residential buildings in October 2021, and a supplemental proposed rule on sustainable design principles for the siting, design, and construction of certain new federal buildings and major renovations of federal buildings in May 2022.
Federal Acquisition Regulation
In July 2021, several agencies are expected to issue a proposed rule amending the Federal Acquisition Regulation to implement part of President Biden’s E.O. 14005, Ensuring the Future Is Made in All of America by All of America’s Workers. The proposed rulemaking will amend the FAR to 1) replace the component test used to identify domestic end products and domestic construction materials with a test under which domestic content is measured by the value that is added to the product through U.S.-based production or U.S. job-supporting economic activity, 2) increase the threshold for the domestic content requirement, and 3) increase the price preferences for domestic end products and domestic construction materials.
Office of Personnel Management
The Office of Personnel Management intends to issue a final rule in August 2021 to allow for additional options to collect wage data during Federal Wage System full-scale and wage-change surveys—namely, by personal visit, telephone, mail or electronic means.
Council on Environmental Quality
The Council on Environmental Quality plans to issue a multi-step proposal to revise the ABC-supported 2020 final rule on updating and modernizing its National Environmental Policy Act regulations. Phase one, which is expected to be issued in July 2021, will propose a narrow set of changes to the 2020 NEPA regulations, and phase two, which is expected to be issued in November 2021, will propose broader changes to the final rulemaking.
More information on these and other rulemakings can be found in the Spring 2021 agenda, and ABC will continue to provide updates on these and other rulemakings in Newsline.
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