Attention TCIA Members in Virginia:
VOSH Arborist Standard Proposed!

Just as TCIA has been working for a separate standard for arboriculture, Virginia is also one of the States in which our industry has a history of being cited under the logging standard. TCIA has been working with Virginia for about 11 years on recognizing our industry separately and creating an arboriculture standard to suit our needs. Virginia has been very receptive to basing an arboriculture standard on Z133. In June 2008, TCIA led a delegation of your peers to meet with VOSH and begin work on a separate standard.

Our Virginia delegation consisted of Peter Girardi and Scott Turner, CTSP, TrueTimber Tree Service, Richmond; Sten Cempe, Big "O" Tree & Lawn Service, Stuarts Draft; Bryan Giere, CTSP, Northern Virginia Tree Experts, Chantilly; Andrew T. Ross, CTSP, RTEC Treecare, Falls Church; Dave Marren, F. A. Bartlett Tree Expert Co., Charlotte, NC and Peter Gerstenberger, TCIA’s Senior Advisor for Safety, Compliance & Standards.

On March 16, Virginia OSHA (VOSH) published 16 VAC 25-73, Tree Trimming Operations (Proposed), in the Virginia Register of Regulations, opening the standard to a 60-day public comment period. We urge you to read the proposed regulation thoroughly to become familiar and comfortable with its requirements. TCIA’s staff and a delegation of members have worked in partnership with VOSH standards writers in Richmond to create what we are confident will be an effective and responsible standard.

As a State Plan, VOSH has the latitude to write its own unique standards or to enforce federal standards. As far as the arboriculture community is concerned, VOSH currently applies the Logging Standard (16 VAC25-90-1910.266) to arborists/tree trimming operations anytime a tree is "felled," or cut down. The Logging Standard does not apply to tree-trimming activities where the tree is not felled or cut down, so there is no specific regulation to address hazards associated with just trimming trees.

In instances where the Logging Standard does not apply, VOSH has had to use regulations of general application as well as the "general duty clause," (§ 40.1-51.1 A of the Code of Virginia) that provides that: "It shall be the duty of every employer to furnish to each of his employees safe employment and a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees...." None of these standard address hazards specifically associated with tree trimming operations.

VOSH procedures allow it to issue a general duty violation and base it on a national consensus standard addressing tree-trimming hazards (such as the ANSI Z133.1- 2006 standard), or some other reliable industry standard the tree trimmer knew of or should have known about. While preferable to no enforcement tool at all, the general duty clause does not provide the regulated community with consistent guidance on how to reduce tree-trimming hazards.

From the employer’s perspective, another significant problem with the use of the general duty clause is the inability for VOSH to cite other-than-serious violations. A general duty violation is by definition “serious”, carrying with it a hefty penalty.

The industry has complained about application of the Logging Standard because we consider our work and the hazards we face to be fundamentally different from hazards faced by loggers.

The need for the regulation is very evident when fatality statistics are reviewed. Since 1993 there have been 46 (non-logging) tree trimming/cutting/felling fatalities in the Commonwealth, comprising seven percent of all occupational fatalities in that time, across all industries. For an industry of the relatively small size of the tree care industry, this is a very high number of fatal accidents!

We encourage you to have input into this important rule-making. You may certainly send your comment directly to VOSH, following the procedures for public comment explained in the Virginia Register of Regulations.

We would appreciate receiving a copy of your comment.

We strongly encourage you to contribute to the comment submitted by TCIA on your behalf! Send us your thoughts on the proposed standard by close of business on Friday May 1. We would prefer that you e-mail your comments to peter@tcia.org, but we are more than happy to accept comments by fax or mail.

H-2B Visa Program Full for 2009

U.S. Citizenship and Immigration Services (USCIS) announced Jan. 8, 2009 that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the second half of Fiscal Year 2009 (FY2009). USCIS notified the public that Jan. 7, 2009 was the “final receipt date” for new H-2B worker petitions requesting employment start dates prior to October 1, 2009. The “final receipt date” is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the second half of FY2009.

USCIS will reject petitions for new H-2B workers seeking employment start dates prior to October 1, 2009 that arrive after Jan. 7, 2009.

If deemed necessary, USCIS may apply a computer-generated random selection process to all petitions that are subject to the cap and received on Jan. 7, 2009 in order to select the number of petitions needed to meet the cap. USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected.

Petitions for workers who are currently in H-2B status do not count towards the congressionally mandated bi-annual H-2B cap. USCIS will continue to process petitions filed to:
• Extend the stay of a current H-2B worker in the United States;
• Change the terms of employment for current H-2B workers and extend their stay; or
• Allow current H-2B workers to change or add employers and extend their stay.

On June 25, OSHA’s Compliance Directorate released a Directive that would have wiped out commercial arboriculture as we know it, forcing all companies to adopt unsafe practices designed for the logging industry.

TCIA went to work immediately in Washington and pledged in an Aug. 8 Regulatory Alert to members that the association would “not rest until this directive is rescinded.”

Effective August 21, the Directive has been rescinded!

TCIA was successful in convincing OSHA that the onerous June 25 Directive that placed arboriculture squarely under the logging standard was unsafe, arbitrary and contrary to established safe practices derived from decades of industry experience embodied in the ANSI Z133 standard.

Your Voice for Trees Political Action Committee has worked hard over the past four years to develop strong relationships on Capitol Hill. TCIA has also devoted countless hours working through our Alliance with OSHA to educate and advance safety in the industry. Both efforts proved crucial in getting the directive rescinded.

In its place, OSHA issued a new directive on August 21.  We are still reviewing and analyzing it, but our first impression is that the new directive is a significant improvement over what OSHA issued on June 25.  That said, we will be asking for clarifications from OSHA on issues that may be confusing in order to comply and to gain a better understanding of the process when a Compliance Safety and Health Officer writes a logging citation.  Click here to review this directive.

Tree care companies should begin to become familiar with the contents so that you can comply with its requirements.  Be sure to note the information on hearing protection.  Inclusion in this directive of what has been a requirement for our industry, but perhaps not heavily enforced, will place it on enforcement officers’ radar when looking at your operations.

We are continuing to review the document, will be working with our Hill contacts over the next few weeks, and are seeking another meeting with OSHA the week of September 22.

On behalf of tree care companies across the nation, TCIA would again like to thank David Marren, Legislative & Regulatory Affairs Advisor; Josh Ulman, TCIA lobbyist; Kevin Caldwell of Caldwell Tree Care, Rebecca Moran of Superior NW Tree and Shrub Care, Erich Schneider of Schneider Tree Care and Chris Freeman of Sox & Freeman Tree Expert Company – along with our Voice for Trees Political Action Committee and its supporters – for being key partners in our effective government relations program that allowed us to be successful in our goal to rescind the June 25 Directive.

New Procedures for H-2B Workers 

U.S. Citizenship and Immigration Services (USCIS) announced new rules Dec. 18 that will change the requirements affecting H-2B visas. The H-2B nonagricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs for which there is a shortage of available U.S. workers.  The Department of Homeland Security (DHS) initially proposed these changes on Aug. 20, 2008. This final rule will become effective 30 days after it is posted in the Federal Register, which is expected December 19. The Final Rule will encourage and facilitate the lawful employment of foreign workers, provide important protections to both U.S. and foreign workers, and further enhance the integrity of the H-2B Program. Please click here for details.

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 program 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.

News from DC

OSHA Agrees to Rule-Making for Tree Care

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 promulgation 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:

1. To provide an additional tool for our industry to save lives
2. To help end the confusion caused by a patchwork of conflicting and inappropriate regulation and enforcement by OSHA and state agencies.
3. To reduce citations under irrelevant standards
4. 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 ongoing 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.

Proposed rulemaking on Hazard Communication

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.

EPA Changes will affect pesticide application

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.

Your Representatives in Washington Will Listen to You

Elected representatives listen to messages from voters back in their states. The ultimate objective is to get our industry organized in a way that will allow fast response to local and national issues.

Click here to contact your U.S. Senator     Click here to contact your U.S. Representative 

Ask Mark

Do you have a question about pending federal legislation? Do you want to know how your representatives voted on issues crucial to commercial tree care? Contact Mark Garvin by clicking here.   

Ask Peter

TCIA provides consultation with members of its staff for free only to members.  If you have questions relevant to the content matter of this part of our Web site, please click here.