TCIA assists its members with regulatory compliance in three main ways: Long before regulations are passed into law, they must go through a period of development with input from the people they affect. TCIA acts as the voice of the commercial arborist by providing information and guidance in the development of responsible, realistic new standards.Once promulgated, new standards must be followed, but understanding them can be difficult and confusing. TCIA simplifies the process by developing compliance guidelines that are relevant and easy to understand for the arborist/manager.
Occasionally, there are regulations that are misapplied to arborists, or laws that are unjust or unworkable. The TCIA works with the industry and the various regulatory agencies to try to straighten out issues such as these.
Attention Federal Contractors:
Proposed regs would require use of E-Verify
On June 12, a proposed rule requiring federal contractors to use the Department of Homeland Security's (DHS) E-Verify employment verification system was published in the Federal Register. This rule, and a similar executive order issued by President Bush on June 6, will change the way federal contractors manage their workforce.
Federal contractors will have to monitor their workforce and the projects employees are working on in order to comply with the rule, and will have to consider which business entities they use to bid on federal contracts.
Background on E-Verify
Today, E-Verify is a voluntary, Web-based system that verifies the  employment eligibility of employees electronically. This electronic verification is in addition to an employer's obligations to verify employment authorization and record that verification on Form I-9.
In E-Verify, an employer enters I-9 data in the system via the Internet, which is then checked against data from Social Security Administration and DHS. The system will either return an immediate notification that the worker is authorized to work, or return what is known as a tentative non-confirmation. A worker who receives a tentative non-confirmation must resolve the issue or else receive a final non-confirmation, after which the employer must terminate the worker.
What does the rule do?
The rule would require all federal contracting officers to include in covered contracts language requiring the contractor to use E-Verify to verify the employment authorization of employees "assigned to the contract," as well as all new hires.
The contractor will enroll in the E-Verify program within 30 days of the date a contract is awarded, and within 30 days of that date use E-Verify to verify the employment authorization of all employees "assigned to the contract." If the contractor is already enrolled in E-Verify, it must use E-Verify for these employees assigned to the contract within 30 days.
The contractor will use E-Verify for all new hires within three days of the date of hire for all new employees hired after the contract is awarded as well as for all existing employees who later are "assigned" to the contract.
The contractor will require all subcontractors performing work under the contract that exceeds $3,000 to adhere to the E-Verify requirement.
Application to existing contracts
The rule applies to solicitations issued and contracts awarded after the effective date of the final rule. It thus not apply to existing contracts. It will be at least several months before the effective date of a final rule and thus some time before bidders start to see these requirements in federal contracts.
Who must be run through E-Verify?
All employees who perform work under a federal contract, regardless of whether they are new hires or existing hires, must be verified through E-Verify. The rule does not require contracting employers to verify all of its employees once the employer becomes a federal contractor. USCIS is currently modifying the E-Verify Memorandum of Understanding (MOU) that all employers participating in the p rogram must sign, as well as its Web site and training materials. This is needed because prior to the executive order and this rule, employers were prohibited from using E-Verify for existing employees. As federal contractors will now be required to verify all employees, both new and current, working on covered federal contracts, the program rules must be changed by USCIS.
The requirement to use E-Verify for existing employees, referred to as "re-verification," may turn out to be a watershed moment. The employment verification regulations have always limited the events that would trigger a re-verification of existing employees, and the E-Verify program rules have until now prohibited the use of E-Verify for existing employees. This marks the first time that the government will be requiring large numbers of workers to be re-verified and run through the E-Verify database even though they are not changing jobs and have already been verified through the I-9 process.
When must a covered employee be Verified?
An employer who is not currently enrolled in E-Verify will have 30 days after the award of a federal contract in which to enroll in E-Verify and an additional 30 days in which to use E-Verify for all employees "assigned to the contract" at the time of enrollment. An employer who is already enrolled in E-Verify has 30 days from the date of award to verify all employees "assigned to the contract" at the time of the award. After that time, an employer has three business days in which to use E-Verify for new hires or existing employees who become "assigned to the contract."
Subcontractors and related entities
A federal contractor will be required to impose the E-Verify requirement to its subcontractors under the federal contract if the subcontract:
1. Is for commercial or noncommercial services or construction;
2. Exceeds $3,000; and
3. Includes work performed in the U.S.
It should be noted that the responsibility for the flowdown lies with the principal contractor, not the subcontractor. In other words, the principal contractor must insert the E-Verify language in its contract with the subcontractor and must see that it is adhered to.
Conclusion
This proposed rule has the potential to dramatically affect how federal contractors structure their operations, manage their workforce, and determine whether to bid on federal contracts. There are significant interpretive questions raised by the proposed rule that will need to be addressed in the final rule. Federal contractors should review their workforce and their current federal contracts to determine the best way to structure those relationships going forward.
Click here for the standards that were most frequently cited by Federal OSHA for tree service businesses during the last fiscal year.
To help your firm with compliance, TCIA's Model Company Safety Program contains a detailed summary of MUTCD requirements, along with illustrations. To learn more about MCSP, click here.
For Members Only: TCIA provides consultation with members of its staff for free. If you have questions relevant to the content matter of this part of our web site, please click here.
News from DC
The tree care industry recently received good news out of the nation's capitol. The Tree Care Industry Association learned in early May that OSHA intends to pursue a standard for tree care operations so that arborists will one day work safely under clearly defined, applicable rules. The formal announcement appeared in RegInfo.gov, a U.S. government Web site produced by the Office of Management & Budget.
The tree care profession is statistically one of the most dangerous occupations in the country, leaving little doubt that it will fall under increasing regulatory scrutiny whether it has input or not. "Landscape Services" is listed in OSHA's 2006-2011 Strategic Plan as one of seven industries to receive increased regulatory scrutiny because of its high accident rates. Tree care is prominently on the radar in State Plan states as well. OSHA notes that, "...in the 11-year period from 1992 through 2002 for which ornamental shrub and tree services fatality data are available from BLS (Bureau of Labor Statistics), there were 637 fatalities in the industry, an average of about 58 fatalities per year or a rate of about 93 fatalities per 100,000 employees."
In 2005, in order to improve safety in our industry, TCIA began a dialogue with Jonathan Snare, acting assistant secretary of labor for OSHA. In 2006, TCIA formally petitioned Ed Foulke, the new OSHA chief, for the p romulgation of a separate standard for arbor occupations. TCIA subsequently met with OSHA several times and secured support for the petition from a bi-partisan group of U.S. senators and representatives.
Currently, OSHA guidance and enforcement for the tree care industry is based on a patchwork of outdated and extraneous regulations. The most contemporary standard is applicable only to a portion of our industry: 29 CFR §1910.269 is now 14 years old. Other standards created without input from our industry and applied to us after the fact create dysfunction and confusion. The Logging Standard, 29 CFR §1910.266, has been inaccurately applied to our profession by some jurisdictions. In addition to being administratively inefficient and ineffective for OSHA, the status quo is dangerous for arborists, who are often confused as to which standard applies.
The announcement indicated that the industry could expect to see an "Advanced Notice of Proposed Rulemaking" (ANPRM) published in the Federal Register as early as August. As part of the ANPRM, OSHA will seek comment from the public.
All tree care professionals should seize this unprecedented opportunity to positively and dramatically change the industry by supporting the ANPRM. From the beginning of this process, it has been TCIA's hope that the creation of a separate standard would have as its goals:
- To provide an additional tool for our industry to save lives
- To help end the confusion caused by a patchwork of conflicting and inappropriate regulation and enforcement by OSHA and state agencies.
- To reduce citations under irrelevant standards
- To educate OSHA about our industry, reducing the waste of time and money by our members and our government in ineffective regulatory activities
Consensus agreement and aggressive work on an arborist standard on our part, as an industry, is far preferable to allowing OSHA to apply its current patchwork quilt of outdated and poorly fitted regulations and to "rule through directive." Moreover, a clear regulation that is communicated industry-wide and supported by OSHA would help prevent fatalities and serious accidents.
The reality is that the Z133 Standard and the direct influence of organizations such as TCIA and ISA reach only a small fraction of practitioners in the U.S. Creating appropriate OSHA guidance will, in effect, allow us to recruit the 1,100 or so federal OSHA field compliance officers, a like number of OSHA's consultation and outreach personnel and an untold number of front line people in OSHA State Plan states to help us in our cause.
A separate OSHA arboriculture standard based upon Z133 would in no way undermine the importance of the Z133 Standard itself nor detract from the vital importance of ong oing standards development. Strong evidence supports the opposite assertion. When OSHA came into existence and first began to promulgate standards, it sought some early "wins" so it adopted several extant ANSI standards of the time as OSHA standards. Two relevant examples are ANSI B30 (cranes) and ANSI A92 (aerial lifts). Today, both of those standards and their committees continue to flourish and remain incredibly relevant.
At last, the tree care industry is being taken seriously as a distinct profession with unique safety issues that deserve the appropriate attention. Tree care professionals deserve to be recognized and regulated separately from loggers, landscapers or construction workers.
As the rule-making process unfolds, TCIA will need support, comments and guidance from affected parties to move toward this profession-changing goal. E-mail correspondence is preferred, and correspondence and other information should be sent to peter@tcia.org. Alternately comments may be mailed to TCIA, 136 Harvey Road, Suite B101-B110, Londonderry, NH 03053.
Peter Gerstenberger is senior advisor for Safety, Compliance & Standards for the Tree Care Industry Association.
On September 12, OSHA published an advanced notice of proposed rulemaking seeking comments on its intention to adopt provisions of the Globally Harmonized System of Classification and Labeling of Chemicals (GHS). As part of adopting GHS, OSHA would have to amend the hazard communication standard to change the criteria for classifying hazards and meet standardized requirements for labeling and material safety data sheets.
Three other agencies are also considering adopting GHS provisions: Department of Transportation regarding transportation of chemicals; the Consumer Products Safety Commission regarding consumer products with hazardous chemicals; and the Environmental Protection Agency with respect to pesticides and chemical labeling under the Toxic Substances Control Act.
Proponents say adopting GHS will bring consistency across international borders making compliance easier for
chemical manufacturers, distributors and transporters.
Critics of GHS, however, say adopting the standard and changing how certain chemicals are classified will have significant consequences on business and household operations.
More details on the notice of proposed rulemaking and GHS are available at www.osha.gov/dsg/hazcom/ghs.html.
The Environmental Protection Agency (EPA) has begun a very broad and long-term initiative aimed at stronger protections for pesticide workers.
The Agency is issuing a series of position papers, 24 in all, that will frame the intent of the EPA to establish regulation and guidance documents that will affect all applicator industries, including TCIA members. The issues will be discussed on a series of conference calls taking place through late October between the EPA, environmental groups, industry members, and state officials.
This initiative could have enormous effect on our industry. The two main issues in contention for us are the scope of competency for all applicators of all products nationwide, and the definition of direct supervision.
For example, the scope question addresses the complete training and licensing requirement for all applicators touching the gun. The direct supervision question will affect how many applicators a certified person can supervise, how far away the supervisor can be, at what distance, and the amount of applications allowed in a day under one license.
In order to respond appropriately to EPA, TCIA needs to find out where our members are on pesticide issues. We need to know what percentage of our members use or apply pesticides, the level of training accorded their pesticide applicators, how their applicators are supervised, etc. TCIA will continue to monitor the emerging issues from EPA and participate in the conversations as needed. |
