Copy
Volume XXIII Number VIII, August 15, 2016
View this email in your browser
Ski Fee Retention on Public Lands
NSAA continues to advocate for the local retention of ski area permit fees with key offices in Congress.  It would be great if individual ski areas get involved as well.  By way of reminder, Senator Wyden (D-OR) introduced S. 2706, the “Recreation Not Red Tape Act,” in March that includes a section on retaining ski area permit fees at the local level.  Rep. Blumenauer (D-OR) introduced the House companion bill, HR 4790. Rather than sending ski area fees to the U.S. Treasury, they would stay at the local/National Forest level to fund the agency’s recreation program, and particularly ski area permit administration and related activities. NSAA supports this bill as a vehicle for providing much needed additional revenue in support of the Forest Service recreation program. To be clear, it is not intended to take the place of appropriations – but rather to supplement appropriations, and it would help us get our projects approved in a more timely fashion. At this time the agency is woefully underfunded and understaffed, and we need a significant change for the future.  Under the Wyden bill, ski fees would be collected under a new FLREA account and could be spent on: Special use permit administration, including processing of applications and increased staff and training; Implementation of the Ski Area Recreation Opportunity Enhancement Act (SAROEA) or summer activities law; Improving and increasing ski area recreational opportunities; Interpretation, visitor information and visitor service; and support of avalanche safety programs.  While key ski state Republicans support the concept of ski fee retention, Republican support for the broader Wyden/Blumenauer bill appears to be lacking, as it is 80 pages long and creates a National Recreation Area System along with other new programs with associated fiscal impacts.  For this reason, NSAA is exploring an alternative stand alone ski fee retention provision that would have a 10-year term, rather than be up for extension every year or couple of years as FLREA is, and create a new account for ski fees separate from FLREA. For now though, as S. 2706/HR 4790 are all we have, NSAA encourages all public land ski areas (and state/regional associations with public land ski areas) to contact their delegation in Congress to express support for the fee retention provision in the Wyden/Blumenauer bill. NSAA has posted sample support letters on S. 2706 and HR 4790 for your convenience at http://www.nsaa.org/government/regulatory-issues/us-forest-service/usfs-fee-system/. It is time to lay the groundwork on educating members of Congress why we need this legislation to pass.

OSHA Enacting a Host of Onerous—and Problematic—Workplace Safety Rules
OSHA has been on a tear that last few months, finalizing a number of onerous rules at the tail end of the Obama administration—many directly impacting ski areas—especially regarding employee injury and fatality reporting, drug testing programs, and citations and fines.  

On August 1, OSHA penalties for violations will increase by 78 percent in order to keep up with inflation, with the maximum penalty increasing to $125,000, up from $70,000, and for other-than-serious citations, the citations will rise from $7,000 to $12,471. The higher fines will only apply to incidents that occur after February 1, 2016.  These higher fines underscore the need for employers, including ski areas, to be diligent in their safety and health compliance efforts. 

In May, OSHA announced its final rule on electronic record keeping, which requires some employers to electronically submit their injury and illness records, including OSHA 300, 300A and 301 forms.  While this new rule does not take effect until January 1, 2017, employers do not need to submit annual OSHA 300A summaries by July 1, 2017, with other OSHA forms to be submitted electronically by July 1, 2018.  Under these new rules, employers will be required to inform each employee of their right to report injuries or illnesses, how to do so, and to inform employees they cannot be retaliated against for such reporting (so for the upcoming orientations at your ski areas, this part of the new OSHA rules do not kick in until the 2017/18 ski season).  The new rules also give OSHA powers to force employers to change practices, reinstate employees, and provide monetary relief, just as courts do in civil lawsuits in employment litigation.  Particularly troubling are reporting requirements on employee deaths, which may cause an OSHA inspection, or rapid response investigations seeking information from employers on what happened and what factors need to be addressed to prevent future incidents.  While OSHA is creating certain “safe harbors” which may prevent OSHA from citing the employer for OSHA citations uncovered as part of these audits or investigations, bear in mind, these submissions become effectively discoverable by the public—including plaintiff’s attorneys—under the Freedom of Information Act.  These electronic submissions could significantly impact ski area litigation.  For example, where a ski area employee is badly injured in a skier/skier collision with a guest—those OSHA reports could be used, or seen as admissions, in any litigation brought by the other injured skier against the ski area, so ski areas would be advised to check with their ASDA attorneys when making such reports to OSHA.

Also in May, OSHA announced new anti-retaliation rules for employees who report injuries, designed to encourage employees to self-report their injuries.  However, under these new anti-retaliation rules, OSHA has indicated that “blanket post-incident drug testing policies deter proper reporting.”  Instead, the new OSHA rules explain that there must be a “reasonable possibility that drug use . . . was a contributing factor in the injury.”  As a result, employers—especially ski areas in those 26 states with recreational or medical marijuana laws on the books—should revisit their drug testing policies.  The new rule do not require a “reasonable suspicion” standard adopted by many state laws, and OSHA emphasizes that not all post-incident drug testing is banned, but the agency appears to be adopting a standard requiring that drugs had likely contributed to the incident.  The NSAA Journal will run an in-depth article in the November issue on these new rules (and with 7 more states voting on recreational marijuana in the November elections, this issue is even more timely).  The new rule becomes effective on November 1, 2017, prior to the start of the ski season, so now is a good time to revisit drug testing policies. 

Given the complexity of these rules, NSAA will have sessions at the NSAA winter conferences in Steamboat, CO (January 17-18) and Mount Snow, Vermont (January 31-February 1) to do a deep dive on all these changes under the new OSHA rules, and their potential consequences for ski areas.
 
Prepared by Geraldine Link, glink@nsaa.org and Dave Byrd, dbyrd@nsaa.org
133 S. Van Gordon Street, Suite 300, Lakewood, CO 80228
Telephone (303) 987-1111 www.nsaa.org

NSAA CAPITAL WATCH IS SPONSORED BY HOGAN LOVELLS

Hogan Lovells is a global legal practice that combines in-depth ski industry knowledge and deep regulatory experience to provide practical solutions to the unique challenges ski areas and resort management face across the country.   

Hogan Lovells US LLP
Columbia Square                       One Tabor Center, Suite 1500
555 Thirteenth Street, NW        1200 Seventeenth Street
Washington, DC 20004-1109   Denver, CO 80202
www.hoganlovells.com



unsubscribe from this list    update subscription preferences