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The Legislative Report blog provides timely information on federal and state legislation and regulations and state trends as well as the myriad issues affecting the private club industry. A companion to CMAA's Legislative website, this resource should be your first stop for any information regarding legal, tax or legislative club-specific issues.

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OSHA’s Top Ten Most Cited Violations for 2017

(OSHA, Regulation) Permanent link

Preliminary data on the 2017 most cited violations by the Occupational Safety and Health Administration (OSHA) was recently previewed at the 2017 National Safety Council’s Congress & Expo and published by Safety + Health magazine. Read More... (Login Required)


EPA and Department of the Army Propose Rule to Rescind WOTUS

(Regulation) Permanent link

On June 27, the Environmental Protection Agency (EPA) and Department of the Army (Corps) issued notice of the forthcoming publication of their proposed rule to repeal the 2015 Waters of the US (WOTUS) rule. The proposed rule will be published in the Federal Register in the next few days. 

This is the official next step in the regulatory rulemaking process following the February 28 Executive Order from President Trump. In the EO, the President directed to the EPA to proceed with rescinding or revising the WOTUS rule through the regulatory process and that the new rule should respect the roles of Congress and the states. 

The rulemaking is the first of a two-step process: 

  1. In step one, the EPA and Corps are rescinding and recodifying the 2015 WOTUS rule. This is not a change because 2015 rule is currently stayed by the Sixth Circuit, so the pre-2015 rules remain in effect. This is an interim step to provide “regulatory continuity and clarity” until they complete a second rulemaking process.

  2. In step two, the EPA and Corps will conduct a “substantial re-evaluation of the definition” of WOTUS.

Interested parties now have 30 days to comment on the proposed rule, specifically “whether it is desirable and appropriate to re-codify the status quo as an interim first step pending a substantive rulemaking… and the best way to accomplish it.” The public notice does not seek comment on the merits of the 2015 WOTUS rule.

OSHA Announces Delay for July 1 Reporting Deadline

(OSHA, Regulation) Permanent link

OSHA Webpage

For clubs with 250 or more employees, the first reporting deadline for the updated OSHA reporting requirements was slated to be July 1, 2017. Under the final rule published in May 2016, businesses with 250 or more employees will now be required to electronically report injury and illness information to OSHA. This is the type of information that is currently maintained on OSHA Forms 300, 300A and 301. 

On May 17, OSHA posted the following information to its website “OSHA is not accepting electronic submissions of injury and illness logs at this time, and intends to propose extending the July 1, 2017 date by which certain employers are required to submit the information from their completed 2016 Form 300A electronically.” 

In related litigation, the rule is currently being challenged in two federal district court cases. Neither case is expected to be decided before the original July 1 deadline. 

Until there is a further announcement as to the new compliance date, clubs should continue to maintain their records and be prepared to comply with the new rule. 

Stay tuned for the latest information! 

Supreme Court Declines to Halt WOTUS Consideration

(Congress, Legal Issues, Regulation) Permanent link

Supreme Court Declines to Halt WOTUS Consideration

On Monday, April 3, the Supreme Court declined a request by the Trump Administration to delay consideration in the National Association of Manufacturers vs. the Department of Defense. This case is not specific to the merits of the Waters of the US (WOTUS) rule but instead addresses the issue of jurisdiction, specifically which courts should hear challenges to the Clean Water Act. 

The Trump Administration requested a delay in consideration due to its recent executive order to the Environmental Protection Agency to proceed with rescinding and/or revising the Waters of the US (WOTUS) rule through the regulatory process.

Without further explanation, the Court issued a brief statement denying the request.  

This does not mean that a ruling will be immediately forthcoming. The case will be scheduled for oral arguments in the term beginning in October and a decision would not be expected any earlier than the summer of 2018. 

The final WOTUS rule remains on nationwide injunction,  following the October 2015 action of the Sixth Circuit of the US Court of Appeals.  

President Issues Executive Order on WOTUS

(Congress, Regulation) Permanent link

White House Executive Orders

On Tuesday, February 28, President Donald Trump issued an Executive Order (EO) directing the Environmental Protection Agency to proceed with rescinding or revising the Waters of the US (WOTUS) rule through the regulatory process. In the EO, the President directs that the new rule should respect the roles of Congress and the states, and cites the previous 2006 legal opinion of Justice Antonin Scalia in Rapanos v. United States as a starting point.

The Waters of the US (WOTUS) final rule dramatically expand federal jurisdiction over waters and wet areas in the US, including most water bodies on golf courses. The final rule was published in the Federal Register on June 29, 2015, and was slated to become enforceable 60 days later.

The rule has been legally challenged by 32 states, numerous industry groups and environmentalist groups on both procedural and substantive grounds. In October 2015, a nationwide injunction was issued by the Sixth Circuit of the US Court of Appeals which stayed the rule from enforcement. That injunction is ongoing.

The expansion of the WOTUS rule would have significantly impacted club operations and budgets as clubs will be required to obtain costly, federal permits for any land management activities or land use decisions in, over or near these additional regulated waters.

Today’s action is significant for landowners. Now, the EPA will restart the rulemaking process with this directive in mind and it is imperative that any new rule must be clear, well founded in law and science, and strike a necessary balance between protecting the environment and allowing businesses to thrive.

Regulations Under the Microscope

(Regulation) Permanent link

Microscope

It is a new session of Congress and a new Presidential administration. What does that mean for the major issues affecting the club industry? Here’s a brief overview of what we might expect to see during the transition on three of the industry’s top federal issues.

The Affordable Care Act – Both Congressional leadership and the President have indicated plans to repeal this legislation through Congress. Work has already begun to pass the repeal through budget reconciliation, which is a method that allows fast-track consideration without the threat of filibuster. The good news is that some of the popular provisions, like elimination of lifetime limits, pre-existing conditions and keeping minors on parental insurance until age 26, may be spared. Many of the least popular provisions and those most troublesome for small businesses and individuals, the individual penalties and employer mandate, are definitely on the chopping block.

The wildcard to this issue is that Congressional leadership has been unable to agree on what the replacement will be. Expect this process to be lengthy and complicated. While Congressional leadership has indicated their goal is to have legislation on the President’s desk for his signature by February, the reconciliation process could be longer.

Overtime Rule Changes and DOL Regulations
– A temporary nationwide injunction remains in effect based on the November action of the US District Court. The nomination of Andrew Puzder, a restaurant industry executive, has illustrated the Trump Administration’s interest in a more business-friendly era of regulation from the Department of Labor. Apart from the overtime rules, it is expected that the Administration will thoroughly review much of the recently enacted DOL and OSHA regulations recordkeeping, the Fiduciary Rule and others.

Congress can vote to repeal regulations, which would have immediate effect. Without that action, the Administration is bound by the rulemaking process which takes time so it is not an immediate end to a regulation. However, cabinet secretaries, like Puzder, can lessen the effect through diminished enforcement.

The wildcard here is the continuing battle in the courts on overtime. While the Trump Administration may choose to withdraw defense of the rule, other groups have already petitioned to take over defense if that happens. It remains unlikely that these efforts will be successful but does create uncertainty for small businesses.

Waters of the US
– This is another measure which remains on a nationwide injunction, enacted by the US Circuit of Appeals Sixth Circuit in October 2015. Congress has already begun working on this repeal. On January 12, Senators Deb Fischer (R-NE) and Joni Ernst (R-IA) introduced S.Res.12 which calls for the withdrawal of the Waters of the US (WOTUS) rule.

The Trump Administration has nominated Scott Pruitt, Attorney General of Oklahoma, to lead the Environmental Protection Agency. Pruitt, as Attorney General of Oklahoma, was involved in litigation against the EPA and WOTUS, citing its executive overreach.

Like overtime, the wildcard here is the continuing battle in the courts. The Administration may choose to withdraw legal defense of the rule as well.

In summary, it is going to be a busy 115th Session of Congress and for the 15 cabinet agencies as they review many of the regulatory actions of the previous administration.

Stay tuned for the latest information.

Regulations Under the Microscope

(Regulation) Permanent link

Microscope

It is a new session of Congress and a new Presidential administration. What does that mean for the major issues affecting the club industry? Here’s a brief overview of what we might expect to see during the transition on three of the industry’s top federal issues.

The Affordable Care Act – Both Congressional leadership and the President have indicated plans to repeal this legislation through Congress. Work has already begun to pass the repeal through budget reconciliation, which is a method that allows fast-track consideration without the threat of filibuster. The good news is that some of the popular provisions, like elimination of lifetime limits, pre-existing conditions and keeping minors on parental insurance until age 26, may be spared. Many of the least popular provisions and those most troublesome for small businesses and individuals, the individual penalties and employer mandate, are definitely on the chopping block.

The wildcard to this issue is that Congressional leadership has been unable to agree on what the replacement will be. Expect this process to be lengthy and complicated. While Congressional leadership has indicated their goal is to have legislation on the President’s desk for his signature by February, the reconciliation process could be longer.

Overtime Rule Changes and DOL Regulations
– A temporary nationwide injunction remains in effect based on the November action of the US District Court. The nomination of Andrew Puzder, a restaurant industry executive, has illustrated the Trump Administration’s interest in a more business-friendly era of regulation from the Department of Labor. Apart from the overtime rules, it is expected that the Administration will thoroughly review much of the recently enacted DOL and OSHA regulations recordkeeping, the Fiduciary Rule and others.

Congress can vote to repeal regulations, which would have immediate effect. Without that action, the Administration is bound by the rulemaking process which takes time so it is not an immediate end to a regulation. However, cabinet secretaries, like Puzder, can lessen the effect through diminished enforcement.

The wildcard here is the continuing battle in the courts on overtime. While the Trump Administration may choose to withdraw defense of the rule, other groups have already petitioned to take over defense if that happens. It remains unlikely that these efforts will be successful but does create uncertainty for small businesses.

Waters of the US
– This is another measure which remains on a nationwide injunction, enacted by the US Circuit of Appeals Sixth Circuit in October 2015. Congress has already begun working on this repeal. On January 12, Senators Deb Fischer (R-NE) and Joni Ernst (R-IA) introduced S.Res.12 which calls for the withdrawal of the Waters of the US (WOTUS) rule.

The Trump Administration has nominated Scott Pruitt, Attorney General of Oklahoma, to lead the Environmental Protection Agency. Pruitt, as Attorney General of Oklahoma, was involved in litigation against the EPA and WOTUS, citing its executive overreach.

Like overtime, the wildcard here is the continuing battle in the courts. The Administration may choose to withdraw legal defense of the rule as well.

In summary, it is going to be a busy 115th Session of Congress and for the 15 cabinet agencies as they review many of the regulatory actions of the previous administration.

Stay tuned for the latest information.