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Washington Weekly Update 2-12-24

Situational Awareness
House and Senate are both in-session this week. The House is set to vote on H.R. 7023, the Creating Confidence in Clean Water Permitting Act, which consists of five stand-alone bills that aim to reform water and pesticide permitting. One such bill directs the Biden administration to issue guidance on how to apply the EPA and Army Corps of Engineers updates WOTUS rule finalized in September following the Supreme Courts’ Sackett decision. Over the weekend, lawmakers in the Senate advanced a $95 billion national security bill that contains funds for Ukraine and Israel. A final vote on the package will be held early this week.

EPA Outlines Implementation Approaches for Endangered Species Act Pesticide Policies
In a speech to the National Association of State Departments of Agriculture, Environmental Protection Agency (EPA) Assistant Administrator Michal Freedhoff described next steps to incorporate stakeholder feedback and collaboration with federal partners into the EPA’s rulemaking on pesticides:

  • In June 2023, EPA announced draft mitigations for 27 species that are a part of the EPA’s Vulnerable Species Pilot project. The EPA received feedback that some of the selected areas for new pesticide mitigation measures would be overly broad. As such, the EPA announced that it won’t implement the pilot program protections for a species until a more refined map of the habitat is developed. 
  • EPA signed an MOU with the U.S. Department of Agriculture describing how EPA can include USDA’s Natural Resources Conservation Service conservation practices on pesticide labels as one way growers who voluntarily perform those practices can use them to help fulfill pesticide label requirements. EPA and USDA are planning meetings and workshops in the coming months to further discuss the MOU and gain input from producers about mitigation options that may count toward fulfilling pesticide label requirements.

Democratic State AGs Seek Emergency Heat Rule
Last week, eleven Democratic state Attorney Generals submitted a petition to the U.S. Occupational Safety and Health Administration to adopt a national emergency temporary standard that would take effect by May 1. The AGs requested that any federal heat standard set a heat index of 80 degrees as the threshold at which employers must take precautions such as providing shaded rest breaks, cool water, and closely monitoring newly hired workers. Since October 2021, OSHA has formally carried out an official rulemaking process on a federal heat standard; see NCA’s backgrounder on it here. Most recently, OSHA released a set of possible components that could formulate a federal heat standard last August and completed its mandatory small business review in November. The petition signals that state leaders are doubtful that OSHA finalizes a heat standard before the summer, when temperatures will most likely reach new record-high temperatures. 

House Hearing on DOL Wage and Hour Division
On Wednesday, Feb. 14, the House Subcommittee on Workforce Protections will hold a hearing titled, “Examining the Policies and Priorities of the Wage and Hour Division.” Most recently, the Department of Labor’s (DOL’s) Wage and Hour Division issued its final independent contractor rule and proposed overtime rule. In the press release announcing the hearing, Subcommittee Chair Kevin Kiley (R-Calif.) made specific mention of the updated independent contractor rule, which implements the use of a six-factor “economic realities test” that will grant equal consideration to each factor to determine a workers’ status. 

House Hearing on ESA Flexibility Act
On Tuesday, February 13, the House Subcommittee on Water, Wildlife and Fisheries will hold a legislative hearing on H.R. 6784, the ESA Flexibility Act. The legislation would provide the Secretary of the Interior greater flexibility in administering the Endangered Species Act (ESA) and grant the U.S Fish and Wildlife Service and National Marine Fisheries Service the authority to promulgate flexible, modified rules for threatened and endangered species. This authority would build upon Section 4(d) of the ESA, which gives the Services greater flexibility when drafting regulations aimed at conserving a species, ensuring that they are protected while allowing for economic development, recreational activity, and energy production when such activities pose little threat to the species.

White House Receives OSHA Final Walkaround Rule
The White House’s Office of Information and Regulatory Affairs has received the Occupational Safety and Health Administration’s (OSHA) final proposal to allow union representatives and other non-employees to accompany OSHA inspectors during workplace safety inspections. The walkaround inspection policy was originally implemented during the Obama administration via a letter of interpretation but was later overturned by a federal judge. OSHA’s proposed rule was published in August with a deadline for comments at the end of October. Now, the White House will review the updated rule to determine if the potential benefits for the regulation outweigh any potential costs on individuals and groups impacted by the rule.