Consultants

February 1, 2021 – Safety & Compliance

Senate Holds Confirmation Hearing for DOT Secretary Nominee Buttigieg.  The Senate Commerce, Science and Transportation Committee held a hearing January 21 on the nomination of Pete Buttigieg to be Secretary of Transportation.  As expected, Buttigieg did not offer any specifics for programs or policies he would implement at DOT, but spoke very broadly about the need for investment in infrastructure as a foundation for economic recovery.

He also mentioned the challenges in infrastructure funding, including the insolvent status of the Highway Trust Fund, but did not suggest any particular source of revenue to address the shortfall.

Buttigieg further stated that President Biden had emphasized with all agency heads the need for bold action on climate change, and he said that concern would be considered in all DOT policies.

Sen. Roy Blunt (D-MO) pressed the nominee on whether DOT would view the U.S. Court of Appeals decision upholding the agency’s preemption of California’s meal and rest break rules for truck drivers as settled law or instead seek to overturn that decision. Buttigieg demurred at the question, saying he would have to “look more into the case law.”

President Names over 40 DOT Appointees.  In addition to DOT Secretary Designate Pete Buttigieg, President Biden has named Polly Trottenberg to be Deputy Secretary of Transportation.  Trottenberg was until recently the Commissioner of the New York City Department of Transportation, and previously served as Under Secretary for Policy at the U.S. DOT.  Like Buttigieg, she will need Senate confirmation before taking office.

In addition, the President named 40 persons to staff various upper level positions within DOT, including Meera Joshi as Deputy Administrator of the Federal Motor Carrier Safety Administration.  Ms. Joshi was previously the Commissioner of the New York City Taxicab and Limousine Commission.  The President has not yet named persons to serve as Administrator of the FMCSA or the Pipeline and Hazardous Materials Safety Administration.

President Biden Issues Directive on Regulatory Modernization.  On his first day in office, President Biden issued a memorandum to all agency heads setting out the administration’s approach to writing regulations.  Entitled “Modernizing Regulatory Review,” the memo asserts that the “Nation today faces serious challenges, including a massive global pandemic; a major economic downturn; systemic racial inequality; and the undeniable reality and accelerating threat of climate change.  It is the policy of my Administration to mobilize the power of the Federal Government to rebuild our Nation and address these and other challenges.”

To address those challenges, the President directed the Office of Management and Budget, along with the executive agencies, to prepare a set of recommendations on “how the regulatory review process can promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations.  The recommendations should also include proposals that would ensure that regulatory review serves as a tool to affirmatively promote regulations that advance these values.”

Further, the memo directs OMB and the agencies to ensure that “the review process promotes policies that reflect new developments in scientific and economic understanding, fully accounts for regulatory benefits that are difficult or impossible to quantify, and does not have harmful anti-regulatory or deregulatory effects,” and also includes “procedures that take into account the distributional consequences of regulations, including as part of any quantitative or qualitative analysis of the costs and benefits of regulations, to ensure that regulatory initiatives appropriately benefit and do not inappropriately burden disadvantaged, vulnerable, or marginalized communities.”

President Biden Issues Orders on Energy, Climate and COVID-19.  President Biden signed several Executive Orders within hours of his inauguration, including some to fulfill campaign pledges on energy and climate. This includes Executive Orders to:

  • Rejoin the Paris Climate Agreement (becomes effective in 30 days);
  • Revoke the Keystone XL pipeline permit;
  • Reinstate a “social cost of carbon” and require it be considered in federal rulemakings;
  • Ban oil and natural gas leasing in the Artic National Wildlife Refuge (ANWR);
  • Revisit vehicle fuel economy and emission standards;
  • Require departments and agencies to review Trump-era regulations and begin work to reverse any that are perceived as damaging to public health or the environment or “unsupported by science”; and
  • Freeze unfinished rulemakings put into motion by the previous administration pending further review.

The White House said the President will issue more Executive Orders on energy and climate next week. Biden also announced he will host a Climate Leadership Summit in Washington, D.C. in April, but no details were available.

On COVID, the President has created a new Coronavirus Response Coordinator position that will operate out of the White House and report directly to him. The position will be responsible for developing and implementing a “unified federal response to the pandemic.” He signed an order asking that all Americans to wear facemasks outside of their homes for the next 100 days and mandates their use on federal property.

President Biden has also promised to manufacture and administrator 100 million doses by April 30 and instructed incoming CDC Director Rochelle Walensky to conduct a comprehensive review of all federal COVID-19 guidance, including vaccine distribution and prioritization.

DOT Seeks Comments on Automated Vehicles Comprehensive Plan.  The U.S. Department of Transportation is seeking comments on a new document entitled “Automated Vehicles Comprehensive Plan.” 86 Fed. Reg. 6410 (January 21, 2021).

According to the notice, the Comprehensive Plan describes how DOT is working towards the safe and full integration of Automated Driving Systems (ADS) into the surface transportation system, including commercial trucks.  It explains Departmental goals related to ADS, identifies actions being taken to meet those goals, and provides real world examples of how these Departmental actions relate to emerging ADS applications.

The notice says that development of ADS technology is occurring along multiple paths and significant uncertainty still exists around what form ADS applications and vehicles will take in the future.  No vehicle equipped with an ADS is available for purchase in the U.S., to date. Technologies are still under development, and DOT asserts the deployment of ADS-equipped vehicles—outside of small-scale pilots—remains years away.

In the Comprehensive Plan, DOPT is attempting to streamline the federal and state regulatory approach and facilitate development of ADS technologies without favoring one technology over another.

Canada Still Facing ELD Deadline without Product Certification.  Transport Canada has established a June 12, 2021 deadline for compliance with new regulations for Electronic Logging Devices to record driver hours of service, but the agency is behind schedule on using third party certification of allowed ELDs.

According to an industry briefing provided January 19 by Mike Millian, President of the Private Motor Truck Council of Canada, all ELDs allowed for use in Canada must be certified by an independent third party and posted on the Transport Canada website.  But to date only one certification body (FPInnovations) has been authorized to evaluate ELDs, and no ELDs are currently certified for use in Canada.

TC changed the technical standards and testing procedures for ELDs on October 26, 2020.  It takes 4-6 weeks to certify a device after an ELD manufacturer submits an application for certification.  Also, no ELDs are currently under consideration for certification.  So at the earliest it will be the middle of March before any ELDs might be certified.

The Private Motor Truck Council of Canada has asked TC for a delay of enforcement for 6-12 months to allow for appropriate certification of ELDs. But to date, TC has indicated it will stick to its June 12, 2021 deadline for compliance even though there are no certified devices.

The ELD mandate applies to all federally-regulated motor carriers that operate in Canada, meaning inter-provincial or international transportation.  Vehicles rented for 30 days or less are excluded from the ELD requirements.  Also, it is not certain whether ELDs that meet U.S. standards will be certified as compliant with the Canadian rules.

Pennsylvania Law Requires Drivers to Notify Employer of Driving Violations.  Pennsylvania has enacted a new law (2020 Act 131) that requires a commercial motor vehicle driver licensed in Pennsylvania to notify his employer in writing within 30 days if the driver is “cited, arrested or charged with violating a Federal or State law or local ordinance relating to motor vehicle traffic control in this or any other state or any Federal, provincial, territorial or municipal law relating to motor vehicle traffic control in Canada, other than parking violations.”

The law also states that an employer that receives timely notice from an employee under of such a charge may not terminate the employee solely for providing the notice unless the employee is convicted of the violation.

Finally, the new law reduces the amount of time that a CMV driver must notify his employer in writing of conviction of any such non-parking offense from 30 days to 15 days.

These new provisions went into effect January 24, 2021.

President Issues Executive Order on Worker Health and Safety.  President Biden has signed an Executive Order directing the federal government to “take swift action to reduce the risk that workers may contract COVID–19 in the workplace.”  The directives include issuing “science-based” guidance to help keep workers safe from COVID–19 exposure, including mask-wearing; partnering with State and local governments to better protect public employees; enforcing worker health and safety requirements; and pushing for additional resources to help employers protect employees.

The EO directs the Occupational Safety and Health Administration to publish guidance within two weeks on regulatory standards and enforcement efforts to protect workers from COVID-19, and to “launch a national program to focus OSHA enforcement efforts related to COVID–19 on violations that put the largest number of workers at serious risk or are contrary to anti-retaliation principles.”

The EO also directs the Secretary of Transportation, along with the heads of certain other agencies, to “explore mechanisms to protect workers not protected under the [Occupational Safety and Health] Act so that they remain healthy and safe on the job during the COVID–19 pandemic.”

In a fact sheet issued by the White House in conjunction with the signing of multiple orders, the Administration stated, “President Biden believes that workers should have the right to safe work environments and that no one should have to choose between their livelihoods and their own or their families’ health.”  In addition, “the President is asking the Department of Labor to consider clarifying that workers have a federally guaranteed right to refuse employment that will jeopardize their health and if they do so, they will still qualify for unemployment insurance.”

Employers already face a situation where drivers and other employees have incentives to use fear of contracting COVID as a reason to not work and seek unemployment benefits.  As long as there are extended federal unemployment benefits available in addition to state benefits, workers will have the incentive to use COVID as justification to stay home and collect unemployment.  Employers who retaliate by terminating employees who fail to show up for work, and/or contest the unemployment claims, might have some additional risk of liability for OSHA-type violations under the guidance to come from DOL.

White House Names OSHA Leadership Team.  President Biden has named the senior members of the Occupational Safety and Health Administration.  James Frederick will serve as

Principal Deputy Assistant Secretary for Occupational Safety and Health.  Mr. Frederick spent twenty-five years in the Health, Safety and Environment Department of the United Steelworkers Union, serving as Assistant Director and Principal Investigator until 2019.

Joseph Hughes, Jr. will be Deputy Assistant Secretary for Pandemic and Emergency Response.  Mr. Hughes previously served for more than thirty years as director of the National Institute of Environmental Health Sciences Worker Training Program. In this role, he led the program’s efforts to support the development and delivery of model safety and health training programs for workers involved in hazardous substances response in cooperation with universities, unions, community colleges and other non-profit organizations throughout the nation.

President Signs Executive Order on Climate Change.  President Biden has signed an Executive Order to address the climate crisis at home and abroad.  The EO says, “It is the policy of my Administration to organize and deploy the full capacity of its agencies to combat the climate crisis to implement a Government-wide approach that reduces climate pollution in every sector of the economy; increases resilience to the impacts of climate change; protects public health; conserves our lands, waters, and biodiversity; delivers environmental justice; and spurs well-paying union jobs and economic growth, especially through innovation, commercialization, and deployment of clean energy technologies and infrastructure.”

Specifically, the EO creates a White House Office of Domestic Climate Policy and a National Climate Task Force to implement the climate-based policies throughout the federal government.

The EO sets an objective of a carbon pollution-free electricity sector no later than 2035 and clean and zero-emission vehicles for federal, state, local, and tribal government fleets, including vehicles of the United States Postal Service.

The order directs the doubling of offshore wind power by 2030 and stops new oil and natural gas leases on public lands or in offshore waters pending completion of a comprehensive review and reconsideration of federal oil and gas permitting and leasing practices.  It also bans federal funding of subsidies for fossil fuels.

Further, the EO states, “the United States must ensure that environmental and economic justice are key considerations in how we govern.  That means investing and building a clean energy economy that creates well‑paying union jobs, turning disadvantaged communities — historically marginalized and overburdened — into healthy, thriving communities, and undertaking robust actions to mitigate climate change while preparing for the impacts of climate change across rural, urban, and Tribal areas.” It directs federal agencies to make “achieving environmental justice part of their missions by developing programs, policies, and activities to address the disproportionately high and adverse human health, environmental, climate-related and other cumulative impacts on disadvantaged communities,”

It directs the Council on Environmental Quality, the Director of the Office of Management and Budget, and the National Climate Advisor to publish recommendations on investments in the areas of clean energy and energy efficiency; clean transit; affordable and sustainable housing; training and workforce development; the remediation and reduction of legacy pollution; and the development of critical clean water infrastructure, with a goal that 40 percent of the overall benefits flow to disadvantaged communities.

FMCSA Announces New Driver Panel for MCSAC.  The Federal Motor Carrier Safety Administration has announced a new panel of 25 CMV drivers to provide input to the agency’s  Motor Carrier Safety Advisory Committee.

According to the notice, this new panel will provide direct feedback to FMCSA on important issues facing the driving community—such as safety, hours-of-service regulations, training, parking, and driver experience. This new panel is comprised of 25 drivers from all sectors of the CMV industry—tractor trailer drivers, straight truck drivers, motor coach drivers, hazardous materials drivers, agriculture haulers, and more.

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