February 1, 2023 – Safety & Compliance

No Change to FMCSA Random Drug and Alcohol Testing Rates for 2023.  The U.S. Department of Transportation’s various modal administrations revise their random drug and alcohol testing rates for each calendar year based on the positive test rate for regulated workers in the prior year.  For 2023, the Federal Motor Carrier Safety Administration has announced there will be no change to its random drug and alcohol testing rate for CDL drivers.

Thus, in 2023 companies will still be required to give drug tests to 50% of their drivers and alcohol tests to 10% of their drivers.  These tests must be unannounced and must be spread out reasonably throughout the year.

FMCSA to Require 10-Year Refresher Training for Medical Examiners.  The Federal Motor Carrier Safety Administration has announced it is implementing a regulatory requirement that all medical examiners certified and listed on the agency’s National Registry of Certified Medical Examiners maintain their certification by completing refresher training 9 to 10 years after certification and passing a recertification test 10 years after certification.

The required 10-year refresher training will be delivered by private sector training organizations in the same manner as the initial National Registry medical examiner training. The 10-year recertification test will be provided by the two FMCSA-approved testing organizations in the same manner as the initial National Registry medical examiner certification test. Medical examiners will be able to upload proof of completion of the 10-year training to their National Registry accounts and be eligible to take the 10-year recertification test starting January 1, 2023.

According to the notice, the first medical examiners certified and listed on the National Registry were required to complete 5-year refresher training in January 2018. Because the information technology system improvements were not yet completed, FMCSA was unable to deliver the 5-year refresher training to meet that deadline. On July 14, 2022, FMCSA issued the 5-year refresher training to all medical examiners who were either past due or currently due for the training using their National Registry accounts. FMCSA notified eligible medical examiners who were past due for the training that they have until December 31, 2022, to complete the training.

Because of the delay issuing the 5- year refresher training and the extended timeframe offered for completion of that training, the programming to process the 10-year refresher training and recertification testing in the National Registry was also delayed. This functionality is now available starting on January 1, 2023, and MEs will have until December 31, 2023 to complete the refresher training and recertification process.

Biden Administration Offers Blueprint for Decarbonization of Transportation Sector.  The Biden Administration has released a multiagency blueprint for decarbonization of the nation’s transportation sector.

The blueprint sets a goal of eliminating nearly all GHG emissions in the transportation sector by 2050, with a transition to vehicles fueled by battery/electric, hydrogen, or sustainable liquid fuels.  But the plan offers little in way of specifics on how to achieve those goals and does not address the concerns of generating sufficient electric power to operate those vehicles, hardening the security of the nation’s power grid, mining and securing the minerals necessary to manufacture batteries to store generated power, and recycling and/or disposal of batteries post-use.

OIRA Releases Regulatory Agenda.  The White House Office of Information and Regulatory Affairs has released its Unified Regulatory Agenda for all federal agencies.  The agenda lists all significant regulatory activities for each agency and provides an estimated deadline for the next action in each proceeding.  Note that the estimated dates for actions are often missed by months or years.

Some of the more noteworthy listings include:

FMCSA—Heavy Vehicle Speed Limiting Devices.  Supplemental Notice of Proposed Rulemaking expected June 2023.  NPRM will consider whether motor carriers operating CMVs in interstate commerce with a GVW over 26,000 pounds that are equipped with an electronic engine control unit capable of governing the maximum speed be required to limit the CMV to a speed to be determined by the rulemaking and to maintain that ECU setting for the service life of the vehicle.

FMCSA—ELD Revisions.  Notice of Proposed Rulemaking expected November 2023.  Based on experience with ELDs, agency considering changes to streamline and improve the clarity of the regulatory text and ELD specifications and make technical modifications responsive to concerns raised by affected parties that could improve the usability of ELDs.

FMCSA—Safety Fitness Procedures.  Advance Notice of Proposed Rulemaking expected March 2023.  Agency plans to solicit public comment about the use of available safety data, including inspection data, in determining carrier fitness to operate and possible changes to the current three-tier safety fitness rating structure. The action would also include a review of the list of Federal Motor Carrier Safety Regulations used in the safety fitness rating methodology.

FMCSA—Automatic Emergency Braking Systems. Notice of Proposed Rulemaking Expected March 2023.  Agency will propose performance standards and motor carrier maintenance requirements for AEB systems on heavy trucks and accompanying test procedures for measuring the performance of the AEB systems in compliance testing.

FMCSA—Definition of Tank Vehicle for CDL Endorsement.  Final Rule expected December 2022.  Agency plans to revise definition of tank vehicle based on comments on a 2013 proposal and three petitions for rulemaking.

PHMSA—Continued Conversion of Special Permits.  Notice of Proposed Rulemaking expected December 2022.  Would continue the process of incorporating longstanding special permits of broad applicability into the Hazardous Materials Regulations.

PHMSA—Modal Amendments to HMR.  Notice of Proposed Rulemaking expected February 2023.  This would amend the HMR to adopt a number of modal specific amendments developed in consultation with the Federal Motor Carrier Safety Administration, the Federal Railroad Administration, and the United States Coast Guard, and from industry petitions for rulemaking.

DOT—Oral Fluid Specimen for Drug Testing.  Final rule expected December 2022.  Would allow DOT-regulated employers, including motor carriers, with the option of collecting an oral fluid specimen in lieu of a urine specimen when testing for drugs as required by the DOT drug testing regulations.

OSHA—Update to Hazard Communication Standard.  Final rule expected March 2023.  OSHA will adopt the latest revision to the Globally Harmonized System of Classification and Labeling of Chemicals (GHS), adopted by the United Nations.  The current rulemaking is to harmonize the HCS to the seventh edition of the GHS, improve harmonization with international trading partners such as Canada, and to codify a number of enforcement policies that have been issued since the 2012 standard.



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