In 2022, federal regulators finalized 3,168 rules totaling 80,597 pages … while proposing 2,044 more. In the first four business days of 2023, the federal government released 41 final rules totaling 1,131 pages and proposed another 23 new rules. Not a bad start, but the federal government has far more in store for America’s manufacturers and distributors in 2023.
Federal law requires the government to release twice a year its semiannual Unified Agenda of Regulatory and Deregulatory Actions, more commonly known as the list of rules and regulations federal agencies intend to release in the coming 12 months. In January 2023, the White House released the fall 2022 Regulatory Agenda, providing some insight and also a warning to certain businesses.
The Regulatory Agenda also provides a timeline for action. For example, the Occupational Safety and Health Agency (OSHA) announced that it would initiate a Small Business Regulatory Enforcement Fairness Act (SBREFA) advisory panel by the end of January 2023 to review its pending heat standard. OSHA is working with stakeholders on the frameworks of a possible rulemaking to regulate indoor workspaces when the heat index reaches 80°F. Such an action to regulate manufacturing plants, warehouses and other indoor facilities will have a significant impact on nearly all sectors and employers.
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The new requirements under consideration include periodic rest breaks depending on the heat index in that location, specific water requirements, additional personal protective equipment (PPE), engineering and other administrative controls. Some facilities lack the ability to reduce the heat index to 80°F, even with the addition of air conditioning. OSHA will likely work throughout 2023 to develop a proposed rule many expect the agency to release in 2024.
OSHA is also finalizing a rule in March 2023 to implement an Obama-era initiative to re-quire establishments with 100 or more employees in certain designated industries to electronically submit information from their OSHA Forms 300, 301 and 300A to OSHA once a year. The agency is also working on a long-standing priority: releasing an updated lockout/tagout regulation in July 2023 to control hazardous energy in manufacturing machinery during operation and tool changeover. This is a separate effort from its pro-posed action on mechanical power presses and powered industrial trucks also pending.
Elsewhere at the U.S. Department of Labor, the Wage and Hour Division (WHD) plans in May 2023 to release its definition of an independent contractor, which determines the status of an employee. Also in May, the WHD said it will issue its long-awaited changes to the salary threshold exempting salaried employees from being eligible for overtime. Some sources indicate the Biden administration may increase the exemption threshold from its current $35,568 to at least $50,000, making thousands of more employees eligible for time-and-a-half pay.
Many environmental and public health groups criticized the Environmental Protection Agency (EPA) in 2022 for not issuing enough major regulations. A look at the Regulatory Agenda shows a busy 2023 ahead with a proposed rule in July for National Emission Standards for coke ovens, the “good neighbor” ozone standard in March and a final rule in August for fine particulate matter, known as the soot rule or PM2.5. The EPA is pro-posing to lower the annual standard from its current level of 12 micrograms per cubic meter to within the range of 9-10.
The EPA will also issue multiple motor-vehicle regulations covering fuel efficiency and emissions, including for both passenger vehicles and heavy-duty trucks. Other environ-mental major rules under consideration include establishing a cost-benefit analysis for regulating industry and setting a dollar amount as the cost of carbon emissions. Known as the social cost of carbon, the Biden administration may set the figure as high as over $300, up from the $1 level set under former President Trump. The number is used to justify regulatory action by establishing a dollar amount for inaction.
Virtually every federal agency issues rules and regulations affecting millions of Americans and thousands of businesses. These regulatory actions are typically taken with in-put from the public and stakeholders, but only an act of Congress or a binding ruling by federal courts can block implementation. This means that federal regulators are free to act in a way that can fundamentally alter the operations of an industry.
The regulations are often well-intentioned and can have the support of industry. At other times, the unintended consequences outweigh their perceived benefit. Businesses can benefit by being prepared; understanding the regulators’ goals; and recognizing how, whether and when compliance is needed. For example, knowing that the Department of Labor may make thousands of more workers eligible for time-and-a-half pay will help the human resources department plan wage growth, starting salaries and hiring strategies. The same applies to other workplace rules, including independent contractors, and especially if OSHA requires new PPE, engineering or administrative controls to comply with a new indoor heat rule.
I read through the list of regulations so you did not have to. However, I do suggest you take note of the timelines contained and plan accordingly. Congress is divided, and President Biden’s legislative agenda is stopped in its tracks. We have a saying in Washington, D.C.: “If you can’t legislate it, regulate it.”
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