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February 1, 2020 Safety and Compliance

IRS Issues Guidance for Retroactive Biodiesel and Propane Tax Credit Claims.  The Internal Revenue Service has issued guidance for companies seeking to file claims for biodiesel and bioheat mixtures during the 2018 and 2019 tax years.

Congress reinstated the biodiesel tax credit for five years, or retroactively through 2022, as part of a year-end tax and spending deal. President Trump signed the bill into law on December 20, 2019. The deal provides a $1-per-gallon tax credit for qualified blends of biodiesel and renewable diesel made during the 2018 and 2019 tax years and extends the incentive at $1-per-gallon through December 31, 2022.

As in previous years, Congress created a special rule for on-time claims for qualified blends during the 2018 and 2019 tax years. Claims must be submitted within 180 days beginning on February 14,2020 and ending August 11, 2020. In other words, claims must be submitted on or before August 11,2020.

In addition, the IRS guidance document provides instructions for submitting special one-time claims for the IRS Section 6426(e) alternative fuel mixture tax credit on propane. Congress renewed this credit retroactively for 2018 and 2019. Unlike the biodiesel tax credit, however, it was only extended for one additional year, or through December 31, 2020. It offers 50 cents for every 1.353 gallons of propane used as a transportation fuel (often referred-to as propane autogas), or approximately 37 cents-per-gallon. It is also available for propane used in a forklift in association with a trade or business

The IRS is directing companies to submit both 2018 and 2019 claims on a single Form 8849 along with a completed Schedule 3: Certain Fuel Mixtures and the Alternative Fuel Credit.

CEQ Proposes Streamlining NEPA Regulations.  The Council on Environmental Quality is proposing to update its regulations for implementing the procedural provisions of the National Environmental Policy Act.  85 Fed. Reg. 1684 (January 10, 2020).  The regulations implementing NEPA require federal agencies to prepare environmental impact statements before undertaking major federal actions, including the construction of highways, bridges, and transportation ports and terminals.

The CEQ has not comprehensively updated its regulations since their promulgation in 1978. This proposed rule is intended to modernize and clarify the regulations to facilitate more efficient, effective, and timely NEPA reviews by federal agencies in connection with proposals for agency action.

The proposed rule would establish time limits of two years for completion of environmental impact statements and one year for completion of environmental assessments.  The proposal specifies page limits, promotes information sharing through modern technology, and better defines environmental effects and other key terms.  The proposal would also allow agencies to establish procedures for adopting another agency’s determinations to increase efficiency, and improve collaboration with State, local, and tribal governments.

According to the White House, the time taken to complete an environmental impact statement is now almost five years on average, and for highways has averaged over seven years.

DOL Issues Final Rule on Joint Employer Doctrine.  The Wage and Hour Division of the U.S. Department of Labor has issued its final rule on joint-employer status under the Fair Labor Standards Act. 85 Fed. Reg. 2820 (January 16, 2020).  The final rule provides much-needed clarity on joint employment, such as when two or more companies share responsibility for a group of employees.

The final rule uses a four-factor test to determine if an employer is directly or indirectly controlling the group of employees and is, therefore, acting as a joint employer. This test asks if the potential joint employer:

  • hires or fires the employee;
  • substantially supervises and controls the employee’s work schedule or conditions of employment;
  • determines the employee’s rate and method of payment; and
  • maintains the employee’s employment records.

In its fact sheet on the final rule, DOL explained that determining joint employment “will depend on all the facts in a particular case, and the appropriate weight to give each factor will vary depending on the circumstances.” Furthermore, the Department clarified that additional factors might be relevant when determining joint employment, “but only when they show whether the potential joint employer is exercising significant control over the terms and conditions of the employee’s work.”

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