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  • Mon, January 13, 2020 1:46 PM | Anonymous member (Administrator)

    The Administration’s decision to direct the Council on Environmental Quality (CEQ) to propose updates to the regulations implementing procedural provisions of the National Environmental Policy Act (NEPA) will have a significant impact on infrastructure projects. CIRT has consistently and actively supported the notion of streamlining regulatory requirements (particularly those associated with EIS rules) as a means to improve efficiencies both as to costs and time it takes to advance projects.  Under NEPA Federal agencies are required to evaluate the potential environmental impacts of major projects such as roads and bridges, rail and water infrastructure, energy projects, etc.  Yet, CEQ views the regulatory requirements of the law as having become “unnecessarily complex and time consuming,” which has resulted in the delay of some infrastructure projects. The proposal marks the first update to the NEPA law in over 40 years.

    The proposed changes will reduce the average time it takes to complete an Environmental Impact Statement (EIS) through increased interagency coordination. Typically, project sponsors must acquire approval from various agencies on permitting decisions to advance their project, which are usually done sequentially – NOT concurrently.  As a result, the average environmental impact statement (EIS) process takes 4.5 years, or even longer for highway projects, according to CEQ data. The NEPA changes would codify aspects of Trump’s One Federal Decision policy, which improves coordination and communication between Federal agencies. The policy sets a two-year average goal for completion of environmental reviews for major infrastructure projects. The federal environmental reviews will still be done, administration officials said, but with greater efficiency. The administration announced this will help spur more investment in infrastructure projects.

    The CEQ proposal was published in the Federal Register [See, (https://www.regulations.gov/document?D=CEQ-2019-0003-0001)].  
    Public Comment is open until March 10, 2020.  [If your company is interested in submitting comments, you may in accordance with the following: Identify your comment by docket number CEQ-2019-0003, using the following method: Federal eRulemaking Portal: https://www.regulations.gov.]

    Summary of Proposals:
    CEQ would revise and modernize its NEPA regulations to facilitate more efficient, effective, and timely NEPA reviews by Federal agencies. The proposed updates and clarifications to its regulations are based on CEQ's record evaluating the implementation of its NEPA regulations and on comments provided in response to the ANPRM. The proposed updates and clarifications seek to advance the stated objectives of the current regulations, as adopted in 1978, “[t]o reduce paperwork, to reduce delays, and at the same time to produce better decisions [that] further the national policy to protect and enhance the quality of the human environment.” To that end, the following are the key provisions of the proposal:

    •  CEQ specifically proposes various revisions to align the regulations with the text of the NEPA statute, including revisions to reflect the procedural nature of section 102(2) of NEPA.

    • CEQ also proposes revisions to ensure that environmental documents prepared pursuant to NEPA are concise and serve their purpose of informing decision makers regarding the significant potential environmental effects of proposed major Federal actions and the public of the environmental issues in the pending decision-making process.

    • CEQ also proposes revisions to ensure that the regulations reflect changes in technology, increase public participation in the process, and facilitate the use of existing studies, analyses and environmental documents prepared by States, Tribes, and local governments.

    • CEQ also proposes revisions to its regulations consistent with the One Federal Decision policy (“OFD policy”) established by E.O. 13807 for multi-agency review and related permitting and other authorization decisions. The E.O. specifically instructed CEQ to take steps to ensure optimal interagency coordination, including through a concurrent, synchronized, timely, and efficient process for environmental reviews and authorization decisions. In response to the ANPRM, CEQ received many suggestions to codify key aspects of the OFD policy in the NEPA regulations, including by providing greater specificity on the roles and responsibilities of lead and cooperating agencies. Commenters also suggested that the regulations require agencies to establish and adhere to timetables for the completion of reviews, another key element of the OFD policy. In response to these comments and to promote interagency coordination and more timely and efficient reviews, CEQ proposes to codify and make generally applicable a number of key elements from expedited procedures and the OFD policy, including development by the lead agency of a joint schedule, procedures to elevate delays or disputes, preparation of a single EIS and joint ROD to the extent practicable, and a two-year goal for completion of environmental reviews. Consistent with section 104 of NEPA (42 U.S.C. 4334), codification of these policies will not limit or affect the authority or legal responsibilities of agencies under other statutory mandates that may be covered by joint schedules, and CEQ proposes language to that effect in § 1500.6.

    • CEQ also proposes revisions to clarify the process and documentation required for complying with NEPA by amending part 1501 to add sections on threshold considerations and determining the appropriate level of review; add a section on CEs; and revise sections on EAs, FONSIs, and EISs in part 1502. CEQ further proposes a number of revisions to promote more efficient and timely environmental reviews, including revisions to promote interagency coordination by amending sections of parts 1501, 1506, and 1507 relating to lead, cooperating agencies, timing of agency action, scoping, and agency NEPA procedures. CEQ proposes additional revisions to promote a more efficient and timely NEPA process by amending parts 1501, 1506, and 1507 relating to applying NEPA early in the process, scoping, tiering, adoption, use of current technologies, and avoiding duplication of State, Tribal, and local environmental reviews; revisions to parts 1501 and 1502 to provide for presumptive time and page limits; and revisions to clarify the definitions by amending part 1508.
    • CEQ also includes provisions to promote informed decision making and to inform the public about the decision-making process. CEQ seeks amendments to ensure agencies solicit and consider relevant information early in the development of the draft EIS. In particular, CEQ wants to direct agencies in the notice of intent (NOI) to request public comment on potential alternatives and impacts, and identification of any relevant information and analyses concerning impacts affecting the quality of the human environment.

    • Additionally, CEQ proposes to direct agencies to include a new section in the draft and final EIS summarizing all alternatives, information, and analyses submitted by the public and to request comment on the completeness of the summary included in the draft EIS.  To that end, CEQ further seeks to make revisions to part 1503 to ensure that comments are timely submitted on the draft EIS and on the completeness of the summary of information submitted by the public, and that comments are as specific as possible. Additionally, CEQ proposes a provision in § 1502.18 to require that, based on the summary of the alternatives, information, and analyses section, the decision maker for the lead agency certify that the agency has considered such information. This will advance the purposes of the directive in E.O. 11991 to ensure that EISs are supported by evidence that agencies have made the necessary environmental analyses. See E.O. 11991, § 1 amending E.O. 11514, § 3(h). Upon certification, the proposed provisions in §§ 1500.3 and 1502.18 would establish a conclusive presumption that the agency has considered such information. In conjunction with the certification requirement, this presumption is consistent with the longstanding presumption of regularity that government officials have properly discharged their official duties. See U.S. Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001) (“[W]e note that a presumption of regularity attaches to the actions of government agencies.” (citing United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)). This is also consistent with case law upholding regulatory presumptions. See, e.g., Allentown Mack Sales & Serv. v. Nat'l Labor Relations Bd., 522 U.S. 359 (1998); Fed. Commc'ns Comm'n v. Schreiber, 381 U.S. 279 (1965).

    • Finally, CEQ proposes changes to make the regulations easier to understand and apply. This includes proposed revisions to simplify and clarify key definitions in § 1508.1. CEQ also proposes certain changes to move and consolidate operative language from the definitions to the relevant regulatory provisions, while leaving the definitional language in the definitions section. In the existing regulations, provisions on certain topics are scattered throughout, making it unnecessarily difficult to navigate the requirements. In some cases, the NEPA regulations address topics in multiple sections and sometimes multiple parts. CEQ proposes to revise the regulations to consolidate provisions and reduce duplication. Such consolidation, reordering, or reorganizing also would promote greater clarity and ease of use.

    Background:
    Most recently, in 2015 Congress enacted Title 41 of the FAST Act (FAST-41), to provide for a more efficient environmental review and permitting process for “covered projects.” See Public Law 114-94, § 41001-41014, 129 Stat. 1312, 1741 (42 U.S.C. 4370m—4370m-12). These are projects that require Federal environmental review under NEPA, are expected to exceed $200 million, and involve the construction of infrastructure for certain energy production, electricity transmission, water resource projects, broadband, pipelines, manufacturing, and other sectors. Id. FAST-41 codified certain roles and responsibilities required by the NEPA regulations. In particular, FAST-41 imports the concepts of lead and cooperating agencies, and the different levels of NEPA analysis—EISs, EAs, and CEs. Consistent with 40 CFR 1501.5(e) through (f), CEQ is required to resolve any dispute over designation of a facilitating or lead agency for a covered project. 42 U.S.C. 4370m-2(a)(6)(B). Section 4370m-4 codified several requirements from the CEQ regulations, including the requirement for concurrent environmental reviews, which is consistent with 40 CFR 1500.2(c), 1501.7(a)(6) and 1502.25(a), and the tools of adoption, incorporation by reference, supplementation, and use of State documents, consistent with 40 CFR 1506.3, 1502.21, 1502.9(c) and 1506.2.  Finally, 42 U.S.C. 4370m-4 addresses interagency coordination on key aspects of the NEPA process including scoping (40 CFR 1501.7), identification of the range of reasonable alternatives for study in an EIS (40 CFR 1502.14), and the public comment process (40 CFR part 1503).

    To ensure a timely NEPA process so that important infrastructure projects can move forward, Congress has also established shorter statutes of limitations for challenges to certain types of projects. SAFETEA-LU created a 180-day statute of limitations for highway or public transportation capital projects, which MAP-21 later reduced to 150 days. 23 U.S.C. 139(l). The Water Resources Reform and Development Act of 2014 established a three-year statute of limitations for judicial review of any permits, licenses, or other approvals for water resources development project studies. 33 U.S.C. 2348(k). Most recently in FAST-41, Congress established a two-year statute of limitations for covered projects. 42 U.S.C. 4370m-6.

  • Fri, January 10, 2020 10:05 AM | Anonymous member (Administrator)

    Yesterday, the Council on Environmental Quality (CEQ) is proposing to update its regulations for implementing the procedural provisions of the National Environmental Policy Act (NEPA). CEQ has not comprehensively updated its regulations since their promulgation in 1978, more than four decades ago. This proposed rule would modernize and clarify the regulations to facilitate more efficient, effective, and timely NEPA reviews by Federal agencies in connection with proposals for agency action. The proposed amendments would advance the original goals of the CEQ regulations to reduce paperwork and delays, and promote better decisions consistent with the national environmental policy set forth in section 101 of NEPA. If finalized, the proposed rule would comprehensively update and substantially revise the 1978 regulations. CEQ invites comments on the proposed revisions.

  • Wed, October 23, 2019 4:12 PM | Anonymous member (Administrator)

    The Corps of Engineers and the Environmental Protection Agency issued a final rule to repeal the 2015 Clean Water Rule: Definition of 'Waters of the United States,' and to restore the regulatory text that existed prior to the 2015 Rule. The agencies will implement the pre-2015 Rule regulations informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding agency practice. Effective December 23, 2019.  CIRT has weighed-in on the rulemaking numerous times over the past few years, arguing that the Obama-era 2015 rule was too broad and overly inclusive going well beyond the logical reading of Supreme Court interpretation of the relevant statutory language.  [See, 84 FR 56626 (10/22/2019) at: https://www.federalregister.gov/documents/2019/10/22/2019-20550/definition-of-waters-of-the-united-states-recodification-of-pre-existing-rules]

  • Tue, October 01, 2019 5:14 PM | Anonymous member (Administrator)

    The National Labor Relations Board (NLRB) has issued a Notice of Proposed Rulemaking (NPRM) that includes changes to its representation case procedures that potentially may affect both construction employers and building trades unions. The proposed rule, could benefit employees by protecting their right to choose; while also potentially protecting construction employers from unwittingly adopting a “permanent” bargaining relationship without establishing it has a majority of workers in support. Those interested, must file their comments to the NPRM by October 18, 2019. [To file a comment to the NLRB regarding this matter either: electronically to www.regulations.gov, or by mail or hand-delivery to Roxanne Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half Street S.E., Washington, D.C. 20570-0001.]

    Background: Due to the complexity and fluidity of construction job sites and the number of workers (often on limited engagements), unionization/representation requirements for construction were modified to accommodate these unique challenges. As such, section 8(f) of the Act allows construction employers to recognize unions and to adopt collective bargaining agreements (CBAs) without a showing of majority employee support — even, without any showing of employee support for the union at all. Over time NLRA case law interpretations created a boilerplate recognition process substituting for the normal Section 9(a) requirements. The result, the accommodation and process has ignored the rights of employees — those rights the NLRA was intended to protect, which the proposed rulemaking seeks to redress.

    The Board majority, in issuing the NPRM, seeks to adopt the more recent Circuit Court Colorado Fire Sprinkler rationale. Under this proposal the NLRB would mandate that Section 9(a) recognition in the construction industry be based upon a contemporaneous showing of majority employee support. The Board majority also said that employee rights to self-determination by majority rule is so important that Staunton Fuel (the older case interpretation) should not be reversed merely by issuing a new decision, but by promulgating a formal rule. The rulemaking process eliminates the risk of the Staunton Fuel rationale being restored without public notice by another later case decision.


  • Tue, October 01, 2019 4:56 PM | Anonymous member (Administrator)

    The U.S. Department of Labor (DOL) has issued its final rule regarding minimum salary requirements for the “white collar” (executive, administrative, and professional) overtime exemptions. CIRT had actively participated in the rulemaking, filing comments on behalf the membership and the industry. The new rule goes into effect on January 1, 2020.

    Per the rule: annual salary level for the executive, administrative, and professional exemptions will increase to $35,568. The new minimum salary represents a fifty percent (50%) increase from the current level of $23,660. [However, it is well below the $47,476 salary level proposed by the Obama administration]. Among the matters DOL rejected, were proposals to establish regional salary levels or separate industry-specific salary levels. Along with the general standard minimum salary level for exempt employees, the rule also addressed the matter of highly compensated employees (HCEs), setting that new minimum level at $107,432.

    Employers will be permitted to use nondiscretionary compensation, including commissions, to satisfy up to 10% of the new standard salary level. This nondiscretionary compensation may be paid annually rather than quarterly, providing employers with more flexibility in paying exempt employees nondiscretionary bonuses and commissions to satisfy the salary level requirement.   [For further details see, Notice of DOL Final Rule at 84 FR 51230 (09/27/2019)]

  • Mon, August 26, 2019 2:38 PM | Anonymous member (Administrator)

    In yet another U.S. District Court opinion, the judiciary has weighed-in to chastise a controversial Obama-Era rulemaking on the “Waters of the U.S.” (WOTUS) as being an overly expansive grab of power.  Judge Lisa Godbey Wood noted that while EPA has authority to interpret the phrase ‘‘waters of the U.S.” that authority isn’t limitless; writing in her stinging rebuke “. . . vast expansion of jurisdiction over waters and land traditionally within the states’ regulatory authority cannot stand.”  CIRT applauds this new ruling, which is in keeping with its comment on the subject including the conclusion that furthers the importance of states rights in the face of overreaching by unelected, and often times unaccountable, federal bureaucrats. [See, Stories on CIRT’s views regarding this matter].

    The hotly debated 2015 EPA rulemaking has been under scrutiny by the Trump Administration, which has sought to find a more restricted definition, one that is more consistent with long held views taking into account a proper understanding of the constraining phrase passed by Congress in the Clean Waters Act (CWA) that adds the modifier “navigable.”  As court states: “inclusion of all interstate waters in the definition of ‘waters of the United States,’ regardless of navigability, extends [the federal government’s] jurisdiction beyond the scope of the CWA because it reads the term navigability out of the CWA.”  

    To put this matter to rest, U.S. Senators Mike Braun (R-IN) and Joni Ernst (R-IA) recently introduced a bill entitled “Define WOTUS Act,” which seeks to reassert Congressional authority and responsibility over the definitions of terms, like “waters of the United States.’

  • Mon, August 26, 2019 2:35 PM | Anonymous member (Administrator)

    While voicing general support for the Trump Administration’s overall direction and decision to address America's skills gap and expand the apprenticeship model to new industries, as proposed by the U.S. Department of Labor rule under the National Apprenticeship Act (NAA) to establish a process for recognizing Standards Recognition Entities (SREs), which will in turn acknowledge “Industry-Recognized Apprenticeship Programs,” CIRT urged DOL to expand the scope to include the A/E/C apprenticeship and training programs in the final application of the new rule.

    The Round Table pointed-out that the A/E/C industry has pursued an active effort to address its critical workforce shortages with apprenticeship-like training programs conducted by individual private sector firms, at great cost to the companies, without these programs always being fully recognized. The comment noted: “
    These programs don’t only have a long track record, but they could help set the quality standards and expectations for the DOL’s proposal when it comes to such “industry programs.”  The acceptance, growth, and quality of the A/E/C “industry programs” would greatly benefit from recognition under the proposed DOL rulemaking.”  [See, CIRT Comment for details]. 

  • Wed, June 19, 2019 9:55 AM | Anonymous member (Administrator)

    The Department of the Treasury, the Department of Labor, and the Department of Health and Human Services (the Departments) have jointly released the final expanded Health Reimbursement Arrangement (HRA) regulations. The new rules will allow HRAs to be used to pay for individual health insurance policies and creates a new type of stand-alone limited benefit HRA. 

    By way of background: Until now, “current” guidance prohibits employers from paying for an employee’s individual health insurance policy. HRAs that reimburse more than excepted benefits must also be integrated with a group health plan, meaning that HRA coverage can be offered only to employees and dependents who are also covered by the group health plan. The Departments first issued proposed HRA regulations designed to expand the use of HRAs in October 2018; those regulations have now been finalized. The new rules are effective for plan years beginning 01/01/2020.

    New HRA Rules Summary -- The new rules create two new types of HRAs:
    (1)  Individual Coverage HRA
    (i)   An HRA funded by employers and used by employees to pay for individual health coverage.
    (ii)  This HRA can also be designed to reimburse other eligible §213(d) expenses.
    (iii) This type of HRA cannot be offered to a class of employees who are eligible for group health plan coverage. Allowable employee classes are defined in the regulations. 

    (2)  Excepted Benefit HRA
    (i)  A limited stand-alone HRA with an $1,800 annual maximum benefit that can be used to reimburse §213(d) medical expenses for eligible employees and dependents.
    (ii) Unlike an individual coverage HRA, an excepted benefit HRA can be offered only to employees who are also eligible for an employer sponsored group health plan.

    Summary
    The new rules make no changes to the employer’s ability to integrate an HRA with group health plan coverage. Employers are also still allowed to offer a stand-alone HRA for the reimbursement of excepted benefits, and to offer a full stand-alone HRA to retirees. These rules provide additional options that employers may want to explore, although many may not be ready to adopt such changes by early 2020. The attractiveness of such options will depend on the employer’s staffing and benefit-offering goals and on the individual coverage options and vendor solutions available (which may vary from market to market and may change over time).

    A copy of the final regulations can be found here – https://www.federalregister.gov/documents/2019/06/20/2019-12571/health-reimbursementarrangements-and-other-account-based-group-health-plans

    The Departments also released a FAQ, found here – https://www.cms.gov/CCIIO/Programsand-Initiatives/Health-Insurance-Market-Reforms/Downloads/HRA-FAQs.pdf.


  • Wed, April 10, 2019 3:17 PM | Anonymous member (Administrator)

    The Dept. of Labor’s Wage & Hour Division issued an notice of rulemaking regarding the agency's “joint employer” status as defined by the Fair Labor Standards Act. The proposed changes are designed to promote certainty for employers and employees, reduce litigation, promote greater uniformity among court decisions, and encourage innovation in the economy.  [See, 84 FR 14043 (04/09/2019); Doc’t. No. 2019-06500. For details on the proposed rule go to: https://www.federalregister.gov/documents/2019/04/09/2019-06500/joint-employer-status-under-the-fair-labor-standards-act].  The issue of joint employees or employer responsibility does come-up on project work sites; therefore, if your firm is interested in the matter – submittals must include the Regulatory Information No. (RIN) 1235-AA26.  Electronic Comments sent through the eRuling Portal at: http://www.regulations.gov.  Comments on the proposed rule are due June 10, 2019.

    Background

    Although the FLSA does not use the term “joint employer,” the Act contemplates situations where additional personsare jointly and severally liable with the employer for the employee's wages due under the Act. 

    Over 60 years ago, in 1958, the Department promulgated a regulation, codified at part 791 of Title 29, Code of Federal Regulations (CFR), interpreting joint employer status under the Act.  The Department has not meaningfully revised this regulation since its promulgation. Under part 791, multiple persons can be joint employers of an employee if they are “not completely disassociated” with respect to the employment of the employee.  However, Part 791 does not adequately explain what it means to be “not completely disassociated” in one of the joint employer scenarios—where the employer suffers, permits, or otherwise employs the employee to work one set of hours in a workweek, and that work simultaneously benefits another person. In that scenario, the employer and the other person are almost never “completely disassociated,” and the real question is not whether they are associated but whether the other person's actions in relation to the employee merit joint and several liability under the Act.

    To make the determination simpler and more consistent, the Department proposes to adopt a four-factor balancing test derived (with one modification) from Bonnette v. California Health & Welfare Agency.  A plurality of circuit courts use or incorporate Bonnette' s factors in their joint-employer test. The Department's proposed test would assess whether the potential joint employer:

    • Hires or fires the employee;
    • Supervises and controls the employee's work schedule or conditions of employment;
    • Determines the employee's rate and method of payment; and
    • Maintains the employee's employment records.

    DOL believes: these factors are consistent with section 3(d) of the FLSA, which defines an “employer” to “include[ ] any person acting directly or indirectly in the interest of an employer in relation to an employee,” 29 U.S.C. 203(d), and with Supreme Court precedent. They are clear and easy to understand. They can be used across a wide variety of contexts. And they are highly probative of the ultimate inquiry in determining joint employer status: Whether a potential joint employer, as a matter of economic reality, actually exercises sufficient control over an employee to qualify as a joint employer under the Act.

  • Thu, April 04, 2019 11:58 AM | Anonymous member (Administrator)

    A coalition representing a cross-section of the business community, including CIRT, has urged Senate Majority Leader, Mitch McConnell, to move expeditiously on a vacancy in the Equal Employment Opportunity Commission (EEOC) that effectively deprives the commission of a quorum or ability to act. The group points out that: “The inability of the Commission to act has had grave consequences for employers and other stakeholders” as evidenced by the lack of action on responding to a court ruling that has brought back a discredited rule-making (see below).  A similar message was communicated to Shahira Knight in the White House.

    In addition, the U.S. Chamber of Commerce and the HR Policy Association has filed an amicus brief in the U.S. District Court for the District of Columbia regarding the EEO-1 pay data rule.  Other trade organizations joined the filing, which is part of an effort to stay the District Court’s ruling that invalidated the Trump Administration’s efforts to stop an over-reaching Obama era rule that ran afoul of the Paperwork Reduction Act and other legal requirements.  If the judge’s ruling is not stayed or overturned, countless hours of detailed data must be amassed on all employees to comply with the rule’s search for evidence of discrimination. Further, discussions are continuing with the Department of Justice and with OMB regarding the EEO-1 pay data rule. [See, Attached Wall Street Journal editorial regarding this issue entitled “An Obama Zombie Returns.”]

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