Consultants

January 1, 2023 – Safety & Compliance

EPA Issues Final Rule on Heavy Duty Engine Emissions.  The Environmental Protection Agency has issued a final rule that will impose further restrictions on NOx and other hydrocarbon emissions from heavy duty trucks beginning with the 2027 model year.

According to EPA, the final rule includes new, more stringent emissions standards that cover a wider range of heavy-duty engine operating conditions compared to today’s standards, and it requires these more stringent emissions standards to be met for a larger portion of the time these engines operate on the road.

This final rule is one of three major actions being taken under EPA’s “Clean Trucks Plan.” Under this plan, the agency intends to propose two additional rulemakings in 2023 which, when considered cumulatively with this final rule, would put in place stringent long-term standards that would reduce smog, soot, and climate pollution zero-emissions vehicle technologies.

By the end of March 2023, EPA intends to release the proposals for the remaining two steps in the Clean Truck Plan. This includes the proposal for the heavy-duty greenhouse gas (GHG) standards “Phase 3” rule for Model Years 2027 and later, and the multipollutant standards proposal for light and medium-duty vehicles for Model Years 2027 and later. EPA intends to also issue final decisions in early 2023 regarding several California waiver requests for California’s heavy-duty vehicle and engine emission standards.

The proposed rule from EPA offered two options to further reduce tailpipe NOx emissions:

Option 1: A two-phased approach to achieve 90% reduction in NOx emissions by 2031 (cutting NOx emissions from 0.2 to 0.035 by model year 2027 and from 0.035 to .02 by 2031), with an 84% increase in the useful life period (from 435,000 to 800,000 miles) and a 500% increase in the emission warranty period (from 100,000 to 600,000 miles) by 2031.

Option 2: A single-step, 75% reduction in remaining NOx emissions (from 0.2 to .05) by model year 2027, with a 38% increase in the useful life period (from 435,000 to 600,000 miles) and a 250% increase in the emission warranty period (from 100,000 to 350,000 miles).

The agency’s final rule is “largely consistent with” the Option 1 requirements.  The Truck and Engine Manufacturers Association estimates the cost of Option 1 at $42,000 per heavy duty vehicle.

FMCSA Denies Exemption for Hair Sample Testing for Drug Use.  The Federal Motor Carrier Safety Administration has denied a request from several motor carriers for an exemption to allow testing of hair samples in addition to urinalysis under the agency’s drug and alcohol testing program.

A group of carriers known as the Trucking Alliance applied for an exemption from 49 CFR 382.107 to amend the definition of actual knowledge to include the employer’s knowledge of a driver’s positive hair test, which would require such results be reported to the FMCSA Drug and Alcohol Clearinghouse and to inquiring carriers under 49 CFR 391.23.

The applicants asserted that hair tests more accurately detect drug use than urine testing. According to the application, the Trucking Alliance motor carrier members that conduct non-DOT hair testing have found it is more effective in eliminating lifestyle drug users from the CMV driver pool, noting it provides “a better opportunity to learn of such drug usage through hair analysis because of the longer 90-day window for detection.” The applicants also note that collection of hair samples is less invasive than urine collection and minimizes the possibility the sample will be substituted or adulterated since hair collections are directly observed.

Also, citing studies confirming the efficacy and accuracy of hair testing, the application asserted that previous concerns that hair testing results in false positive test results for African Americans have been addressed by improvements in the testing methodology.

The FMCSA denied the application because the agency does not currently have authority to grant it.  At present, the statutory authorization or the Clearinghouse does not allow using a non-DOT positive test as the basis for an actual knowledge report to the Clearinghouse.  Nevertheless, FMCSA published notice of the request for an exemption in August 2022 and requested public comments on the application.

In the FAST Act, enacted December 4, 2015, Congress required that the U.S. Department of Health and Human Services “not later than one year after . . . this Act, . . . issue scientific and technical guidelines for hair testing as a method of detecting the use of a controlled substance . . .”  The FAST Act also added a requirement that FMCSA’s drug and alcohol testing regulations permit the use of hair testing as an acceptable alternative to urine testing for pre-employment drug testing, and for random drug testing when the driver was subject to pre-employment hair testing (49 U.S.C. 31306(b)(1)(B)).

The Conference Report accompanying the FAST Act noted that “[t]he FMCSA has informed the conferees, and the conferees agree that nothing in [the enabling statute] authorizes the use of hair testing as an alternative to urine tests until the U.S. Department of Health and Human Services establishes federal standards for hair testing.

HHS issued proposed Mandatory Guidelines for Federal Workplace Drug Testing Using Hair (HMG) in 2020 (85 Fed. Reg. 56108 (September 10, 2020)). However, HHS has not yet issued a final version of the HMG.  Once HHS issues a final rule on hair testing policies and procedures, the FMCSA will be able to establish a rulemaking to allow hair testing as an alternative to urinalysis for CMV drivers.

FMCSA Issues Update for Drivers on Meeting ELDT Requirements.  The Federal Motor Carrier Safety Administration has issued an update on its Training Provider Registry website to create a new section for entry-level drivers, including recommended steps drivers can take when selecting a training provider from those listed on the Training Provider Registry. This information is also available as a downloadable guide.

Drivers who are new to operating a commercial motor vehicle, or who plan to upgrade a CDL or add a new Hazardous Materials Endorsement, are required to take training under the Entry-Level Driver Training regulations.

DOT Authorizes Remote SAP Assessments of Drivers.  On December 20, 2022 the U.S. Department of Transportation’s Office of Drug and Alcohol Policy and Compliance issued a Statement of Enforcement Discretion for Substance Abuse Professionals that is effective January 1, 2023.  The document authorizes SAPs to conduct remote assessments and evaluations for employees with drug and alcohol violations.

Unless otherwise modified or terminated by ODAPC, the enforcement discretion will end on the effective date of any final rule following DOT’s notice of proposed rulemaking (NPRM) published on February 28, 2022.  SAPs and affected employees would follow any assessment and evaluation procedures specified in that final rule.

That NPRM proposed to allow SAPs to conduct assessments and evaluations either in-person or remotely provided that certain requirements are met.  The proposed requirements include criteria that are intended to ensure that the SAP can objectively evaluate an employee’s non-verbal and physical characteristics that might be indicative of problems associated with alcohol abuse and/or drug use.  Those criteria are based on and consistent with those in the currently applicable Statement of Enforcement Discretion issued by ODAPC.

The current enforcement discretion extends through December 31, 2022.  To provide consistent program administration for SAPs and affected employees, ODAPC has determined to continue this enforcement discretion until the effective date of any final rule following the February 2022 NPRM.

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