DOT Issues Enforcement Discretion on Medical Gas Cylinder Requalification

In response to continuing concerns about the COVID-19 public health emergency, the Pipeline and Hazardous Materials Safety Administration of DOT has issued a notice stating the agency will not take enforcement action against any person who fills a DOT-specification cylinder used to transport Division 2.2 non-flammable medical gas provided the cylinder meets all requirements of the Hazardous Materials Regulations (HMR; 49 CFR parts 171 through 180) except that the cylinder is overdue for periodic requalification by no more than 12 months.

The enforcement discretion is valid through June 30, 2021.  A copy of the notice is attached.

Prior to filling, all cylinders must receive and pass a pre-fill inspection in accordance with 49 CFR 173.301(a)(2).

This notice is limited to the filling and offering of cylinders containing Division 2.2 nonflammable medical gases when such cylinders are no more than 12 months past their periodic requalification test date.

TSA Will Not Continue Authority to Extend HME Validity for CDL Drivers

The Transportation Security Administration has confirmed that after December 31, 2020, the agency will not continue authorization of State Driver Licensing Agencies to extend the validity of Hazardous Materials Endorsements that have expired.

The exemption was from renewal of the HME Security Threat Assessment for certain individuals that the agency published on April 8, 2020, which was extended and is now scheduled to expire on December 31, 2020.

Under this exemption, states may extend the expiration date of HMEs that expire on or after March 1, 2020, for 180 days, due to restrictions and business closures in place in response to the COVID–19 pandemic. If a state grants an extension, the individual with an expired HME must initiate the process of renewing his or her security threat assessment (STA) for the HME no later than 60 days before the end of the state-granted extension.

Although companies are still reporting difficulty in arranging Security Threat Assessments in some States, drivers whose HMEs expire after January 1, 2021 must meet the fingerprint and background check requirements to renew their HMEs as scheduled.

For more information contact:

Mike Dodd                                                     Rick Schweitzer

(571) 718-2887                                               (703) 946-2548                    

Biden Nominates Buttigieg as DOT Secretary.  President-Elect Joe Biden has nominated former South Bend, Indiana Mayor Pete Buttigieg to be Secretary of Transportation.  Although Mr. Buttigieg, just 38 years old, has no experience running any type of transportation agency, the Biden transition announcement stated “Mayor Buttigieg worked inclusively and creatively to bring together public, private, and community leaders to restore pride to South Bend and turn the city . . .  into a bustling hub of innovation and job growth.”

If confirmed by the Senate as Transportation Secretary, the statement continued, “Buttigieg will work to improve the lives of all Americans, and he will bring the same vision and policy acumen that reinvigorated South Bend to the task of implementing President-elect Biden’s Build Back Better agenda, including rebuilding modern, sustainable infrastructure nationwide, creating millions of good-paying union jobs, and tackling the climate crisis by helping to deliver an equitable clean energy future.”

The new Secretary will need to work with Congress on a long-term infrastructure package, which must include means to fund additional spending on critical infrastructure programs. The current highway and bridge program authorization expires September 30, 2021.

Confirmation hearings will begin next year after the new Senate is sworn in January 3.

Biden Selects Energy, Environment and Climate Nominees.  President-Elect Joe Biden has nominated former Michigan Governor Jennifer Granholm to serve as Secretary of Energy.  As governor, she reportedly worked closely with the auto industry in an attempt to revitalize the Michigan manufacturing base and save jobs.

That experience may prove useful in working towards the Biden Administration’s stated goal of achieving net-zero greenhouse gas emissions by the year 2050.  Transportation is a major source of greenhouse gas emissions and the Administration is expected to promote adoption of new cleaner technologies including electric cars, trucks, buses, trains and planes.

President-Elect Biden has also named current Secretary of the North Carolina Department of Environmental Quality Michael Regan to head the Environmental Protection Agency. He previously served at the EPA under both Democratic and Republican presidents, and lead initiatives at the agency to improve energy efficiency and air quality and mitigate pollution.  He also previously served as an Associate Vice President of the Environmental Defense Fund focused on climate issues.

The president-elect named Gina McCarthy to serve as the first-ever National Climate Advisor to head the newly formed White House Office of Domestic Climate Policy.  She was previously the Administrator of the Environmental Protection Agency, and is currently the President and CEO of the Natural Resources Defense Council.  According to her bio, as EPA Administrator she oversaw efforts to reduce greenhouse gases, mitigate air pollution, conserve critical water sources, and safeguard vulnerable communities from chemical hazards.

FMCSA Issues Final Rule to Allow Third-Party CDL Skills Tests.  The Federal Motor Carrier Safety Administration has released a final rule to allow states to permit a third-party skills test examiner to administer the Commercial Driver’s License (CDL) skills test to applicants to whom the examiner has also provided skills training.  The change will become effective 60 days after the rule is published in the Federal Register.

Federal rules previously prohibited a third-party CDL skills instructor who is also authorized by the state to administer the CDL skills test from performing both the instruction and the qualifying testing for the same CDL applicant. This final rule eliminates that restriction and permits states, at their discretion, to allow qualified third-party skills trainers to also conduct the skills testing for the same individual. This new rule is designed to alleviate testing delays and eliminate inconvenience and expense to the CDL applicant.

FMCSA Proposes to Eliminate Annual Driver Submission of Violations.  The Federal Motor Carrier Safety Administration is proposing to eliminate the requirement that drivers operating commercial motor vehicles in interstate commerce must prepare and submit a list of their convictions for traffic violations to their employers annually. 85 Fed. Reg. 80745 (December 14, 2020).

The FMCSA states this requirement is largely duplicative of a separate provision that requires each motor carrier to make an annual inquiry to obtain the motor vehicle record for each driver it employs from every State in which the driver holds or has held a CMV operator’s license or permit in the past year.

To ensure motor carriers are aware of traffic violations for a driver who is licensed by a foreign authority rather than by a State, that provision would be amended to provide that motor carriers must make an annual inquiry to each driver’s licensing authority where a driver holds or has held a CMV operator’s license or permit. This change would require motor carriers to request the MVR equivalent from Canadian and Mexican driver’s licensing authorities.

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