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  • Wed, December 01, 2021 12:45 PM | Anonymous member (Administrator)

    BREAKING NEWS!! U.S. District Judge Gregory Van Tatenhove on Tuesday blocked President Joe Biden’s COVID-19 vaccine mandate for some federal contractors.  In short, the federal judge found that Biden likely lacks the authority to impose such a mandate across the board saying in part: “The question presented here is narrow. Can the president use congressionally delegated authority to manage the federal procurement of goods and services to impose vaccines on the employees of federal contractors and subcontractors? In all likelihood, the answer to that question is no.”  As a result, Van Tatenhove granted a request for a preliminary injunction covering the three states that requested the stay – namely Kentucky, Ohio, and Tennessee.

    Biden signed an executive order in September that set-in motion a process that had OSHA take the lead on private sector businesses, with the assumption federal contractors could force all their workers to get a COVID-19 vaccine unless the worker is entitled to an exception based solely on the fact they were receiving federal dollars.  Any contractors who did not comply with the order, originally set with a Dec. 8 deadline, were poised to lose the government’s business.

    The federal judge sited the Tenth Amendment to the Constitution while finding the three states arguments persuasive as they related to:  the vaccine mandate was both illegal and unconstitutional, in part because it was imposed with little regard to “important aspects surrounding the mandate, including but not limited to economic impacts, cost to States, cost to citizens, labor-force and supply-chain disruptions, the current risks of COVID-19, and basic distinctions among workers such as those with natural immunity to COVID-19 and those who work remotely or with limited in-person contacts, among other aspects.”

    UPDATE:
    This fairly narrow jurisdictional preliminary injunction joins other legal decisions that have stopped or hindered the implementation and coverage of the vaccine mandate attempt. 
    Specifically:
    (a) U.S. 5th Circuit Court placed a preliminary injunction (until the matter is fully adjudicated) against the mandate being imposed on private sector businesses. (The Biden Administration has sought to end-run this order by forum shopping the matter to the U.S. 6th Circuit Court seeking a more favorable opinion);
    -- and --
    (b) A preliminary injunction has already been entered against the Biden administration’s health care worker vaccine mandate; among other legal decisions and pending matters.


  • Wed, November 17, 2021 12:13 PM | Anonymous member (Administrator)

    BREAKING NEWS!!  In response to the stinging Fifth Circuit Ruling (read story below)  -- OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation, the Labor Department affirmed in recognition of the court’s authority and ruling.

    11/17/21 – U.S. Circuit Reaffirms Halt on Vaccine Mandate [UPDATE]

    In clear, unambiguous, direct language the U.S. Court of Appeals for the 5th Circuit has extended its earlier preliminary stay on the Biden administration's vaccine mandate for private employers.  A unanimous, and seemingly annoyed three-judge panel (after hearing the White House instruct businesses to ignore its preliminary injunction), called the President’s proposed vaccine mandate: "fatally flawed" and "staggeringly broad."

    The stay, which the court issued on Friday evening, says OSHA shall "take no steps to implement or enforce the Mandate until further court order." The judges were unmistakably signaling they expect the agency to heed its ruling. The pause is "pending adequate judicial review of the petitioners' underlying motions for a permanent injunction." But the court left little doubt that it would grant those motions, saying "petitioners' challenges to the Mandate show a great likelihood of success on the merits.

  • Thu, November 04, 2021 7:30 AM | Anonymous member (Administrator)

    The Biden administration has released the new rule from the Occupational Safety and Health Administration (OSHA) requiring 84 million private sector workers to get vaccinated for COVID-19.  However, the White House further announced that it is pushing back the deadline for workers in the health care sectors, as well as federal contractors, to get fully vaccinated to Jan. 4, 2022. The highly contentious and likely Unconstitutional mandate has ignited a “fire storm” of protests and lawsuits (many being pursued by state governments as well as public sector employees).  Critics have torn into the federal government over-reach by the President, arguing it is rooted in panic-based policymaking rather than following the science or simple logic.

    The current OSHA rule making seeks to enforce private-sector employers with 100 or more employees to put vaccine requirements in place for all staff, or face fines of up to $14,000 per violation. The agency is using powers it claims under Emergency Temporary Standard (ETS) when it determines workers are at “grave risk” to promulgate this wide-ranging proposal. Under the rule, workers who are not vaccinated are required to submit a weekly negative COVID test at no expense to their employer. Unvaccinated workers are also required to wear masks when on the job. In addition, the burden is shifted to the businesses under the ETS, by requiring employers to determine and keep records of the vaccination status of each employee and report all COVID deaths and hospitalizations to OSHA.

    The rule takes effect immediately upon publication, scheduled for Nov. 5, in the Federal Register. See, www.regulations.govhttps://t.co/urxVSkmYa0 https://twitter.com/benshapiro/status/1456247886140817409?s=27

    Instructions: OSHA is seeking public comments on aspects of the standard, (which it may be ultimately expanded to include smaller businesses).  All submissions must include the agency's name and the docket number for this rulemaking (Docket No. OSHA-2021-0007).  All comments are placed in the public docket without change and may be made available online

    RESOURCE:  FREE -- HR Daily Advisor Webinar on Workplace Vaccine Mandates (legal analysis) on Monday, November 15, 2021 (3:00PM EST), hosted by HR Daily Advisor, sponsored by INTELEX.  Learn more about this FREE LEGAL ANALYSIS / WEBINAR and REGISTER HERE

  • Thu, October 07, 2021 3:36 PM | Anonymous member (Administrator)

    Alarm bells are being sounded as a rash of new or the return of more restrictive regulations are pursued by the Biden Administration that will undercut the promise of expanded infrastructure expenditures.  Throughout the system, the balance between regulations vs. CIRT supported streamlining procedures is being waged; as for example, the White House proposed environmental regulations that would scale back Trump administration reforms and likely slow down future infrastructure projects.

    The Administration announced important changes it was implementing that would affect how the federal government would go forward with respect to infrastructure work.  Specifically, how it will once again enforce the 1969 National Environmental Policy Act (NEPA), the law requiring federal agencies to have environmental impact statements for infrastructure projects before approval. Essentially, Biden’s proposed rule would reverse the Trump Administration’s changed that were aimed at streamlining environment review to accelerate infrastructure projects. Critics were quick to point out that imposing the old approaches under NAPA would be counterproductive to Biden’s own infrastructure spending priorities being sought with passage of his ambitious $1.2 Trillion Infrastructure Investment and Jobs Act
    Heritage Foundation Senior Research Fellow Diane Katz is reported as having summed it up simply: “If you want infrastructure improvement, then why would you want to implement one of the primary sources (using NEPA as a vehicle) of delay and protracted litigation that kept these improvements from being made to begin with?”

  • Fri, October 01, 2021 3:57 PM | Anonymous member (Administrator)

    As noted in CIRT’s story on this topic in September, President Biden’s decision to impose mandatory vaccination requirements on individuals and private sector firms of more than 100 employees, etc. has been meet with wide spread criticism – as well as Constitutional legal challenges.  One aspect of the President’s EO (Executive Order (EO) 14042; issued Sept. 9, 2021) that is less vulnerable to being overturned legally regards its application to federal contractors. While CIRT does not have a formal written policy on this matter, it typically opposes mandates, requirements, and other dictates that appear to be an overreach of the federal government that have burdensome impacts on the members.  So although the vaccine mandate does not apply to all federal contractors and does not apply immediately to any existing contract – the threat of the mandate being imposed in the coming months means member companies with federal/public contracts will likely be negatively impacted when it comes to workforce concerns arising from the requirement.

    Specifically, President Joe Biden order mandating COVID-19 vaccination applies to employees working on or in connection with covered federal government contracts and subcontracts, with some exceptions. [To trigger coverage under the mandate established by EO 14042, a contractor must enter into a federal government "contract or contract-like instrument" on or after November 14, 2021, that meets or exceeds the simplified acquisition threshold (currently $250,000)].

    On September 24, 2021, the Safer Federal Workforce Task Force issued guidance that requires covered federal contractor employees to be fully vaccinated against COVID-19 by December 8, 2021.  The guidance also addresses several other important aspects relating to implementation of EO 14042, which is intended to be binding.


  • Thu, February 25, 2021 9:52 AM | Anonymous member (Administrator)

    As of Friday, the new Biden Administration has seen eight of its Cabinet level nominee reviewed and consented to by the divided Senate.  There are still, a number that are in the process (DOJ, HHS, etc.), with one nominee currently for OMB Director in some difficulty that may not be approved.

    Confirmed cabinet secretaries • Dept. of State (Antony Blinken) • Dept. of Defense (Lloyd Austin) • Dept. of the Treasury (Janet Yellen) • Dept. of Homeland Security (Alejandro Mayorkas) • Dept. of Transportation (Pete Buttigieg) • Dept. of Veterans Affairs (Denis McDonough) • Dept. of Agriculture (Tom Vilsack) • Dept. of Energy (Jennifer Granholm)
    Confirmed cabinet-level positions ▪ Director of National Intelligence (Avril Haines) ▪ UN Representative (Linda Thomas-Greenfield)

    (SEE, NJ Nomination Tracker for details and analysis of overall process)

  • Wed, February 24, 2021 9:51 AM | Anonymous member (Administrator)

    After years of consensus building and fine tuning with all parties to the process involved and providing input on reforms to the Apprenticeship Certification and Recognition process (reported on by CIRT over the years), President Biden has revoked with the stroke of his pen through an Executive Order.  The demise was sudden, complete, and not entirely understandable, other than it was an initiative pursued in the Trump Administration (spearheaded by Ivanka Trump) that focused attention, energy, and dollars on alternative private sector participation in training and apprenticeships that warranted certification and recognition. Given the repudiation of the reforms, one can assume the older arcane system is back in place for the foreseeable future unless and until new reforms are proposed and adopted.

    The Trump era Industry-Recognized Apprenticeship Program, or IRAP, was rescinded by Biden’s E.O.  Whereas Trump’s order directed the Labor Department to lead industry-recognized apprenticeship programs, Biden’s will “instead focus on the Labor Department’s traditional registered apprenticeships favored by organized labor—which require tougher standards for program operators—as the pathway to expand the nation’s earn-as-you-learn job-training system,” according to published Bloomberg Law reports.  Notwithstanding, the revocation will turn-back gains under the previous Administration that were touted by Ivanka Trump: “POTUS has invested more than $800 million for apprenticeships with more than 860,000 NEW apprentices since 2017 + created the Industry-Recognized Apprenticeship Program (IRAP) to grow apprenticeships in new and emerging fields” (01/17/2021).

  • Tue, January 26, 2021 2:26 PM | Anonymous member (Administrator)

    In just the first five days in office (thru January 25th), newly inaugurated President Joe Biden has SHATTERED all previous presidents use of Executive Orders, actions, proclamations, memorandum, and agency directives. Of the total thirty-three (33) policy directives, (21) are E.O.’s and still counting.  As a result, Biden has eclipsed any recent president by magnitudes of ten fold in the first week of a new presidency. For comparison purposes: during their first (7) days in office former President Bill Clinton signed two E.O.’s in 1993, George W. Bush signed two in 2001, Barack Obama signed five in 2009 and Donald Trump signed four in 2017.  Biden’s pace is far above the norm and suggests an approach that is not only seeking to erase Trump’s legacy, but replace it without involvement of Congress or agency rulemaking.

    In addition to the executive presidential actions, the new Administration also intends to pursue an aggressive process to review and/or revisit a host of agency actions, policies, and initiatives.  [See, attached “Biden-Harris Rules for Review” document].


  • Thu, January 21, 2021 6:24 PM | Anonymous member (Administrator)

    Newly inaugurated President Joe Biden signed seventeen (17) Executive Orders upon completion of the swearing-in ceremonies. So far, with promises of more to come, the orders and directives can be grouped around the following topics or themes: those designed to repeal or replace policies implemented by former President Trump, those addressing the ongoing COVID-19 health emergency (vaccine rollout), some that freeze Trump decisions, while others are intended to set the nation in an entirely different direction.

    [See attached “Upcoming Executive Orders” for a detailed breakdown and summary of the first day actions].


  • Thu, December 17, 2020 9:35 AM | Anonymous member (Administrator)

    What may turn out to be a critically important reaffirmation of state authority (or may be referred to as “devolution”), today the U.S. Environmental Protection Agency (EPA) announced that the State of Florida is the first state in more than 25 years to apply for and receive approval to implement a Clean Water Act (CWA) Section 404 program, joining Michigan and New Jersey as the only states in the country with such authority. Today’s action formally transfers permitting authority under CWA Section 404 from the U.S. Army Corps of Engineers (Corps) to the State of Florida for a broad range of water resources within the State. This action allows the State to more effectively and efficiently evaluate and issue permits under the CWA to support the health of Florida’s waters, residents, and economy.  EPA Administrator Andrew Wheeler noted that: “A considerable amount of effort has gone into Florida’s assumption of the Clean Water Act 404 program.”  Moreover, he pointed out: “Federal authorities don’t delegate this type of permit often, but Florida has, beyond question one of the greatest environmental records of any state, . . . (and) . . . has shown it can meet the strict national standards EPA sets to protect human health and the environment.”

    If this becomes a trend, CIRT member firms may find their state clients/relationships will replace formally federal controlled project permitting handled by the U.S. Army Corps of Engineers.

    Background

    Section 404 of the CWA requires a permit before dredged or fill material may be discharged into waters of the United States. Section 404(g) of the CWA gives states and tribes the option of assuming, or taking over, the permitting responsibility and administration of the Section 404 permit program for certain waters. Section 404 permits for those assumed waters would be issued by the state or tribe instead of the Corps. The CWA provides that the Corps retains permitting authority in certain tidal waters and other specified waters that are currently used or may be used in the future to transport interstate or foreign commerce. State and tribal Section 404 programs must be at least as stringent as federal permitting.

    State and tribal regulators are generally more familiar with local aquatic resources, issues, and needs. An efficient state- or tribal-run program can help reduce delays and save money for permit applicants. States and tribes can also integrate dredged and fill permitting with traditional water quality programs, such as monitoring and water quality standards, or state/tribal land use planning requirements. Under an assumed program, Section 404 permit applicants may need only a single state or tribal permit for dredged or fill material discharges. Since more than a dozen states and tribes currently administer dredged and fill programs separate from the federal program, assuming the Section 404 program allows states and tribes to streamline the review process and reduce unnecessary paperwork and duplication. It may also reduce the potential for conflict between federal and state or tribal decisions or permitting conditions.  More information: https://www.epa.gov/cwa404g/basic-information-about-assumption-under-cwa-section-404


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