ESFPA E-News

NAFO Comments on DOL’s Proposed Rule Classifying Employees/Independent Contractors

The National Alliance of Forest Owners (NAFO) along with 25 forestry associations (including the Empire State Forest Products Association) submitted their comments on Tuesday, December 13th, on the Department of Labor’s (DOL) proposed rule regarding Employee or Independent Contractor Classification Under the Fair Labor Standards Act, 87 Fed. Reg. 62218, et seq. (Oct. 13, 2022); RIN 1235-AA43 (“Proposed Rule”).

DOL historically used an economic reality test to determine whether a worker is an employee or an independent contractor under the Fair Labor Standards Act (FLSA). Before 2021, DOL conducted an analysis of the “totality of the circumstances,” considering multiple factors to make this determination. However, in 2021, under the prior Administration, the DOL issued an Independent Contractor Rule (the 2021 Final Rule) assigned a higher weight to two “core” factors to determine whether an independent contractor was an employee by focusing primarily on two “core” factors: the nature and degree of the worker’s control over the work, and the worker’s opportunity for profit or loss.

As DOL stated in a 2021 press release, the two core factors were the most probative to the question of whether a worker is economically dependent on someone else’s business or is in business for themselves. If both core factors supported the same classification, there would be a “substantial likelihood” that the classification was appropriate. However, if the core factors did not point to the same classification, the 2021 Final Rule also identified three other factors that may serve as additional guideposts for the classification analysis: the amount of skill required for the work, the degree of permanence of the working relationship between the worker and the potential employer, and whether the work is part of an integrated unit of production.

DOL now proposes to rescind the 2021 Final Rule and has proposed a new rule (the Proposed Rule) that returns to a totality of the circumstances analysis of the economic reality test in which the factors do not have a predetermined weight and are considered in view of the economic reality of the whole activity. The Proposed Rule examines six factors: (1) the worker’s opportunity for profit or loss; (2) investments by the worker and the employer; (3) how permanent the work relationship is; (4) nature and degree of control; (5) whether the work is an integral part of the employer’s business; and (6) skill and initiative.

NAFO believes the Proposed Rule does not contemplate the realities of how businesses and independent contractors work together in a modern forestry supply chain. Further, NAFO is concerned that the fifth factor in the Proposed Rule – the extent to which the work performed is an integral part of the company’s business – would nearly always tilt the analysis in favor of a finding of an employee-employer relationship. For these reasons and others, NAFO cannot support the Proposed Rule in its current form. NAFO urges DOL to clarify the Proposed Rule to prevent unintended consequences unique to the forest sector that would have an outsized impact on rural economies through a major shift in the forestry workforce. NAFO further proposes adding a safe harbor provision to provide forestry businesses a clear standard for classifying workers as independent contractors.

To read the full comments, click the link below to view on our website:

Climate Change and Historical Forest Growth Changes
in the US and Canada

The forest products sector depends on predictable tree growth to ensure the supply of raw materials. Factors associated with climate change, such as rising levels of carbon dioxide (CO₂), a prolonged growing season, and changes in temperature, precipitation, and natural disturbance regimes (duration, intensity, and frequency), are already changing the growth rate of trees, which can alter wood properties and harvest rotation ages. Furthermore, how these factors interact will vary by species and region, and will change over time.

NCASI has prepared a new fact sheet that provides a brief overview of current knowledge about historical changes in forest growth and suggests how continuing changes may impact future fiber supply.

The fact sheet is now available for download on the NCASI website: 

DEC Finalizes Two Climate Change Policies

The New York State Department of Environmental Conservation (DEC) has finalized two important policy documents regarding climate change.

DEC issued Commissioner’s Policy on Climate Change and DEC Action (CP-49) to provide guidance regarding complying with the specific requirements of the Climate Leadership and Community Protection Act of 2019 (CLCPA) and the Community Risk and Resiliency Act of 2014, as amended by the CLCPA. Additionally, DEC issued a companion program policy, Division of Air Resources (DAR) Policy, DAR-21, CLCPA and Air Permit Applications. These guidance documents set forth Department Policy for compliance with Section 7(2) of the CLCPA.

Drafts of CP-49 and DAR-21 were released for public comment on December 8, 2021; the comment periods closed on Feb 7, 2022. The two policies DEC issued today are final after consideration of the feedback received during the public comment period.

The CLCPA includes economywide requirements to reduce greenhouse gas (GHG) emissions in New York State by 40% below 1990 levels by 2030, and 85% below 1990 levels by 2050. It requires DEC to specify statewide emissions limits that correspond to those reduction requirements, which have been promulgated under six New York Codes, Rules and Regulations (NYCRR) Part 496.

Section 7(2) of CLCPA requires all state agencies to consider whether agency administrative decisions are inconsistent with, or will interfere with, the attainment of the statewide GHG emission limits. If deemed inconsistent, the state agency must provide a detailed justification and, if such a justification is available, identify alternatives or GHG mitigation measures to be imposed. For purposes of the CLCPA, statewide GHG emissions include upstream out-of-state GHG emissions associated with the generation of electricity imported into the state, or the extraction, transmission, and use of fossil fuels imported into the state.

CP-49 lays out the roadmap for staff and the public on how DEC will implement Section 7(2). Find the full text and pdf printable version of this policy here.

DAR-21 describes the content of analyses required by the DAR as part of DEC’s air permit application process pursuant to the requirements of Section 7(2). It further describes the procedures staff in DAR will follow when reviewing those analyses for conformance with CLCPA requirements. Find the full text and pdf printable version of the DAR-21 here.

Final Scoping Plan Meetings

A meeting of the Climate Action Council to vote on a final statewide Scoping Plan will be held in-person on Monday, December 19, 2022, at 1:00 p.m. Members of the public are welcome to observe the meeting in-person at the Albany location below. Pre-registration to attend in person in Albany is requested.

Location:

Empire State Plaza
Meeting Room 6
Albany, NY 12242

Transportation:

• Parking is available in Empire State Plaza Visitor Lot on level P3.
• If parked for 90 minutes or less, there is no charge at the Exit Gate. If parked more than 90 minutes, the charge will be $10/day. Payment is by card only, no cash.
• The venue is accessible by CDTA bus.

Members of the public can also listen to the meeting via webcast by using the Webex information below. It is not necessary to pre-register to view the meeting via webcast.

View meeting
Event Password: climate
Event Number: 2494 550 0895
Call In: 1-415-655-0003
Access Code: 2594 550 0895

A recording of the meeting will be posted on the Climate Act website within three days of the meeting, or as soon as practicable.

ESFPA and the Business Council of NY are also working to set up a webinar regarding the final Scoping Plan on January 5th, more details to come.

Governor Hochul Vetoes the Streams Bill

Governor Hochul announced her decision to veto an act to amend the environmental conservation law, in relation to the protection of Class C waterways and streams (S.4162/A.6652). 

This bill would expand the definition of regulated streams under the Environmental Conservation Law (ECL) Article 15 protection of waters to include "Class C" waterways, thereby requiring a permit prior to disturbances. Class C water bodies support fisheries and are suitable for non-contact activities. 

In her veto message, Governor Hochul stated "I fully support efforts to safeguard clean water and natural resources across our state. While the intent of this bill is laudable, it would have significant regulatory impacts on related projects and will carry substantial costs to the State, as well as to local governments and to the communities that would bear the impact of these new regulations. It would more than double the amount of stream miles as well as the number of permits over which the Department of Environmental Conservation has a planning and oversight role. These significant practical and fiscal implications have not been addressed since the bill was last vetoed in 2020 and were not budgeted for in the State's financial plan. This legislation would be more appropriate to address in the State's budget process. Therefore, I am constrained to veto this bill. This bill is disapproved." 

ESFPA and NY Farm Bureau worked hard to get this bill vetoed, and if it is part of the 2023 budget, we will continue to advocate for agricultural and silvicultural exemptions.