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Regulatory and Legislative Update - February 2022

By Dan Boaz

Contents

FMCSA has extended its emergency declaration regarding COVID-19 through February 28. For the latest version and other guidance related to COVID-19 is available at www.fmcsa.dot.gov/COVID-19. Note that use of the declaration now requires monthly reporting by carriers.

Regulation and Enforcement

Legislation

Advocacy and Comment

 

Regulation and Enforcement

Safety fitness procedures apparently are next on FMCSA’s regulatory agenda

The Federal Motor Carrier Safety Administration plans this spring to revisit use of data to determine safety fitness. The agency intends to issue an advance notice of proposed rulemaking (ANPRM) in May seeking information on how it might use data and resources more effectively to identify unfit motor carriers. The brief description and ANPRM target date were included in the Department of Transportation’s January 2022 report on significant rulemakings, which is the first such report issued since February 2020 – presumably because the pandemic changed short-term priorities drastically.

In the January report, FMCSA said it would “seek public comment about the use of available safety data, including inspection data, in determining carrier fitness to operate.” The agency also said it would “seek public input on possible changes to the current three-tier safety fitness rating structure.” FMCSA also plans to review the list of Federal Motor Carrier Safety Regulations (FMCSRs) that the agency uses in its safety fitness rating methodology.

FMCSA has been down this road before. Despite various restrictions on use of Safety Measurement System (SMS) data imposed by the FAST Act in December 2015, the agency in January 2016 issued a proposed rule that would have used SMS data alone to determine safety fitness for carriers in certain situations. FMCSA never finalized the rule and instead said it would consider the issue further in a supplemental NPRM. However, after President Trump took office, the agency withdrew the rulemaking in March 2017, saying the proposal was premature given that the National Academies of Science (NAS) had yet to issue a report on its review of SMS and the Compliance, Safety, Accountability (CSA) program. NAS’ report in June of that year recommended various changes, including development of a complex statistical model based on a concept known as Item Response Theory. Nearly five years after the NAS report, FMCSA still has not executed reforms based on the NAS study as required by the FAST Act.

The January report on significant rulemakings lists several other potential FMCSA proceedings, but only in a couple of cases has the agency identified a next step with a target date for accomplishing that action. Those are NPRMS on broker and freight forwarder financial responsibility, slated for December 2022, and safety integration of automated driving systems-equipped commercial vehicles, planned for November 2022. The report also includes a few National Highway Traffic Safety Administration (NHTSA) rulemakings related to trucking, including an NPRM planned for April to require automatic emergency braking on heavy trucks and a joint NPRM with the Environmental Protection Agency to revise current fuel efficiency and greenhouse gas standards for medium- and heavy-duty engines and vehicles. For the DOT rulemakings report, visit https://www.transportation.gov/regulations/report-on-significant-rulemakings.

FMCSA adopts new vision standards for commercial drivers

FMCSA issued a final rule allowing individuals who do not satisfy with the worse eye the existing distant visual acuity standard with corrective lenses or the field of vision standard – or both – to be physically qualified to operate a commercial motor vehicle (CMV) in interstate commerce under specified conditions. Currently, FMCSA allows many visually impaired drivers to operate if they obtain an exemption. The new alternative vision standard replaces the current vision exemption program as the basis for determining the physical qualification of these individuals. The rule is effective March 22. For the Federal Register notice, visit https://www.federalregister.gov/d/2022-01021.

FMCSA guidance allows third-party tests to administer all CDL knowledge tests

FMCSA has amended its regulatory guidance to explain that FMCSA’s current statutory authorities and regulations do not prohibit third-party testers from administering the commercial driver's license (CDL) knowledge tests for all classes and endorsements. Under the revised guidance, state licensing agencies may accept the results of knowledge tests administered by third-party testers in accordance with existing knowledge test standards and requirements. FMCSA also said it is working on a proposed rule that will more fully address states’ use of third-party knowledge testers.

The guidance tracks with an exemption FMCSA granted to the Virginia Department of Motor Vehicles (VA DMV) early in the pandemic to allow third-party testers to administer knowledge tests without a state examiner present. VA DMV had requested the exemption in response to the closing of its service centers due to the pandemic.

The flexibility granted by the new guidance was among various measures cited by the White House in December in its plan to increase the supply of truck drivers. (See Regulatory Update, January 2022.) For the Federal Register notice, visit https://www.federalregister.gov/d/2022-02165.

Use of registered training programs now mandatory for new, upgraded CDLs

FMCSA has launched the Training Provider Registry (TPR), which was the final step in implementing new entry-level driver training standards for individuals seeking to obtain a new or upgraded CDL or certain endorsements. The TPR is an online database that maintains the list of registered training providers that have self-certified they meet federal training requirements and retains a record of all individuals who have completed the required entry-level driver training. Effective February 7, drivers subject to the entry-level driver training (ELDT) regulations now must complete the required training from a registered training provider before obtaining a CDL or specified endorsement. For more information, visit https://tpr.fmcsa.dot.gov.

DOT’s roadway safety plan includes several motor carrier elements

DOT Secretary Pete Buttigieg on January 27 announced a National Roadway Safety Strategy (NRSS) aimed at sharply reducing highway fatalities, and the plan includes several provisions relevant to motor carriers. Some of the measures were mandated by Congress in last year’s infrastructure act, including automatic emergency braking systems on heavy trucks and stricter rear impact guards on trailers. The plan also includes measures already finalized but not yet implemented, such as rules issued last year directing states to take licensing action against drivers barred by the drug and alcohol clearinghouse and to develop systems for the electronic exchange of driver history record information. The NRSS is available at https://www.transportation.gov/NRSS.

Robin Hutcheson becomes acting FMCSA administrator

DOT Secretary Pete Buttigieg has named Robin Hutcheson deputy FMCSA, replacing Meera Joshi, who had departed the agency to become a deputy mayor of New York City. As deputy administrator, Hutcheson, who previously served as DOT deputy assistant secretary for safety policy, also serves as acting administrator. Prior to joining DOT in January 2021, Hutcheson was director of public works for the City of Minneapolis. Before that post, she had served as transportation director for Salt Lake City.

Although President Biden had nominated Joshi to become FMCSA administrator, the Senate never confirmed her, and her nomination was one of many returned to the White House at the end of the last congressional session. FMCSA has not had a Senate-confirmed administrator since Raymond Martinez departed in October 2019.

FMCSA plans to reduce UCR fees by 27%

FMCSA has proposed cutting annual Unified Carrier Registration (UCR) fees by $16 to $15,350 per entity depending on fleet size – a reduction of 27%. Comments on the proposal are due February 23. For the Federal Register notice, visit https://www.federalregister.gov/d/2022-01022.

 

Legislation

Bills would make permanent several pandemic-related CDL waivers

Legislation (S. 3556, H.R. 6567) introduced in the Senate and House would make permanent several waivers related to CDLs that FMCSA had issued in response to the pandemic. The bill would:

  • Allow state and third-party examiners who have maintained a valid CDL test examiner certification and have previously completed a CDL skills test examiner training course to administer the CDL knowledge test without completing a CDL knowledge test training course;
  • Remove the requirement that CDL holders who accompany commercial learner’s permit (CLP) holders be seated in the front seat if they are elsewhere in the cab; and
  • Allow states to administer driving skills tests to applicants from other states.

For more information, visit https://www.congress.gov/bill/117th-congress/senate-bill/3556 and https://www.congress.gov/bill/117th-congress/house-bill/6567.

Bill would streamline credentialing for transportation workers

Reps. Adam Smith (D-Washington) and John Katko (R-New York) have introduced legislation (H.R. 6571) to standardize the enrollment process for individuals applying for multiple Transportation Security Administration (TSA) security threat assessment programs. The bill would apply to programs such as the Transportation Worker Identification Credential (TWIC), Hazardous Materials Endorsement (HME), and TSA PreCheck programs. For more information, visit https://www.congress.gov/bill/117th-congress/house-bill/6571.

 

Advocacy and Comment

SMS to be revisited

Uh-oh, here we go again. The FMCSA has announced reinvigorating the comatose SMS methodology is high on its regulatory agenda. See above. With supply chain bottlenecks, severe driver shortages, escalating fuel and equipment costs, one would think the tyranny of the immediate would be controlling.

Remember, SMS methodology is the inspection based, peer grouped algorithm the Agency promised to deliver as part of CSA 2010. When that did not work, dozens of changes were made over the following five years.

Yet the system was shown to be so unfair and arbitrary, Congress in the Fast Act of 2015 required the scores to be removed and the program submitted for review by the National Academies of Science, The FMCSA tried to launch a rulemaking in January of 2016 but withdrew it after systemic flaws in the system were demonstrated in responsive comments.

When the National Academies of Science issued its report it concluded SMS could only work if new data was collected and an entirely different statistical formula was implemented. This idea gathered no traction and DOT failed to approve SMS as required by the FAST Act.

For the past five years, SMS methodology has run in the background and to plaintiff’s bar’s delight, it still affects nuclear judgments, access to freight and insurance premiums. Now, the Biden Administration has put SMS back at the top of its agenda. Yet even now, it praises the use of the objective desktop audit which critics of SMS proposed as an objective and fairer way to assign an actual satisfactory safety rating to carriers at a reasonable cost.

From the Agency notice discussed above, it appears no lessons have been learned about the systemic flaws of using peer grouping ,use of roadside data and a fancy algorithms to replace an objective audit.

It is time to move on and unite under three principles: (1) the FMCSA is the ultimate arbiter of highway safety; (2) carriers it finds to be safe to operate and properly “licensed, authorized and insured” are hence fit to use; and (3) the politics and rhetoric surrounding safety may change but after 15 years of development, it is time to permanently pull the plug on SMS.

In this context. the well-intentioned Gallagher-Moulton bill pending in the House would reintroduce possible use of SMS in return for legislative clarity on up-supply chain liability for shippers and brokers. With insoluble data sufficiency, data accuracy and statistical problems, allowing the return of SMS as any kind of ultimate measure of carrier fitness in an untenable "compromise" no carrier group can support.

The FMCSA now openly advocates use of the remote audit as an economical and fair tool for evaluating carriers in need of a compliance review. This idea was suggested to the FMCSA, the MCSAC and DOT years ago. Why revisit a system that does not work when the successful new entrant desktop audit procedure suggests there are better answers?

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Regulatory and Legislative Update - January 2022

By Dan Boaz

Contents

FMCSA has extended its emergency declaration regarding COVID-19 through February 28. For the latest version and other guidance related to COVID-19 is available at www.fmcsa.dot.gov/COVID-19. Note that use of the declaration now requires monthly reporting by carriers.

Regulation and Enforcement

Legislation

Advocacy and Comment

 

Regulation and Enforcement

Supreme Court blocks vaccination/testing mandate on larger employers

The U.S. Supreme Court on January 13 stayed an emergency temporary standard (ETS) that generally would have required employers with 100 or more employees to ensure that all employees are either vaccinated against coronavirus (COVID) or undergo weekly COVID testing. A federal appeals court in December had lifted a stay that another court had imposed on the ETS, but the Supreme Court expedited a review of that decision. Supply chain stakeholders, including trucking industry groups, had sounded alarms over the effect of a vaccine mandate on the supply of workers.

Key to the Supreme Court’s decision was a conclusion that COVID is not a workplace hazard within the jurisdiction of the Occupational Safety and Health Administration (OHSA). “Permitting OSHA to regulate the hazards of daily life – simply because most Americans have jobs and face those same risks while on the clock – would significantly expand OSHA’s regulatory authority without clear congressional authorization,” the court ruled. For the Supreme Court opinion, visit https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf. Technically, the court’s action only blocks the mandate pending further litigation, but given the 6-to-3 decision, the Biden administration apparently has accepted the stay as the final word on the ETS.

Earlier on the day of the Supreme Court action, the trucking industry had secured a small victory regarding the mandate. OSHA issued guidance to the effect that solo truck drivers generally would not be subject to the ETS provided that their indoor interaction with others was minimal. However, that guidance is now moot now that the Supreme Court has blocked the ETS entirely.

Canadian vaccine mandate for U.S. truck drivers takes effect January 15

Although U.S. employers will not have to deal with a vaccine/testing mandate in the U.S., cross-border trucking operations face a vaccine mandate beginning January 15 for drivers entering Canada. U.S. drivers unable to establish full vaccination status will be denied entry into Canada. Unvaccinated Canadian truck drivers returning to Canada from the U.S. will be subject to testing and quarantine requirements but will not be denied entry. Meanwhile, effective January 22, the U.S. plans to require that foreign nationals, including truck drivers, entering the U.S. provide proof that they are fully vaccinated. For more information on the Canadian requirements, visit https://bit.ly/Border-COVID.

FMCSA announces younger driver pilot program

FMCSA announced in the January 14 Federal Register that it has established the Safe Driver Apprenticeship Pilot Program, which would allow individuals aged 18 to 20 to drive commercial vehicles interstate subject to various restrictions. The program was mandated by the Infrastructure Investment and Jobs Act (IIJA), which was signed into law in November. During the Trump administration, FMCSA in September 2020 had proposed a younger driver pilot program that was not finalized. FMCSA’s notice implementing the pilot program is in the same docket and responds to public comments submitted in response to the September 2020 proposal.

The IIJA apprenticeship legislation and FMCSA’s implementation of it closely track the so-called DRIVE-Safe Act, which had been introduced in Congress several times in recent years. Like the DRIVE-Safe Act, the pilot program mandates a certain program of training with minimum on-duty and driving hours and conducted in trucks equipped with specified safety technologies. The apprenticeship program involves two tiers of specified experience with minimum durations that total 400 hours on duty, including 280 hours of time behind the wheel. The IIJA established limitations not included in the DRIVE-Safe Act, however. For example, the apprenticeship program is temporary (three years) and is limited to 3,000 apprentices at any given time.

The FMCSA program requires that motor carriers participating in the program register their apprenticeship programs with the Department of Labor. Registered apprenticeship programs are a major part of a “trucking action plan” for increasing the supply of truck drivers that the White House announced in December. (See article below.)

FMCSA’s Federal Register notice outlines the requirements, qualifications, and reporting obligations that motor carriers and apprentices must satisfy and accept in order to participate in the program. The agency is not yet accepting applications, but it plans to announce that step on its website soon. For the Federal Register notice, visit https://www.federalregister.gov/d/2022-00733. For the September 2020 proposal and comments, visit https://www.regulations.gov/docket/FMCSA-2018-0346.

White House sets strategy to recruit and develop more truck drivers

As part of its efforts to address supply chain disruptions, the White House in December unveiled a “trucking action plan” to increase the supply of truck drivers. The plan outlines efforts the Biden administration plans to launch through early 2022.

The initial step in the plan was FMCSA guidance to state driver’s license agencies on ways to expedite issuing commercial driver’s licenses (CDLs). According to a White House fact sheet, new CDLs and commercial learner’s permits were running about 20% higher in 2021 year than in 2019 and 72% higher than in 2020. Another piece of the White House strategy is a 90-day challenge to accelerate expansion of registered apprenticeships in trucking. The initiative is hosted at https://www.apprenticeship.gov/90-day-trucking-apprenticeship-challenge.

The action plan also involves steps aimed at recruiting many of the estimated 70,000 veterans who likely have certified trucking experience in the past five years. The Department of Transportation and Department of Labor also are launching a joint “Driving Good Jobs” initiative aimed at gathering feedback on how to make driving a truck a more attractive career.

The White House cited other initiatives that were included in the recent Infrastructure Investment and Jobs Act (IIJA), including the pilot program for younger interstate drivers truck drivers published in the January 14 Federal Register. (See article above.) The plan also cites other measures included in that law, including studies of driver pay and detention time and a task force to study truck leasing arrangements.

DOT on January 13 announced further details of steps to implement the plan. For more information, visit https://www.transportation.gov/tags/biden-harris-trucking-action-plan.

FMCSA’s Joshi leaves agency for New York City post

Meera Joshi, who had been leading FMCSA as deputy administrator and acting administrator since the beginning of the Biden administration, has returned to New York City to serve as deputy mayor for operations. Joshi had been appointed FMCSA deputy administrator in January 2021 after holding several positions in New York, including head of the New York City Taxi and Limousine Commission.

President Biden formally nominated Joshi as FMCSA administrator in April 2021. The Senate Commerce Committee advanced her nomination in November, but the full Senate never confirmed her. As is routine for unapproved nominations during a congressional session, Joshi’s nomination was one of dozens returned to the White House in January at the beginning of the current session of Congress. Had Joshi been formally renominated she would have had to go through the entire hearing and approval process again. FMCSA has not had a confirmed administrator since Raymond Martinez departed in October 2019.

FMCSA again denies exemption from $75,000 broker bond requirement

FMCSA has rejected an application from the Small Business in Transportation Coalition (SBTC) seeking reconsideration of the agency's March 31, 2015 denial of the Association of Independent Property Brokers and Agents’ (AIPBA) application for an exemption from the $75,000 bond requirement for all property brokers and freight forwarders. FMCSA treated the SBTC request as a new exemption application. After reviewing SBTC's application and public comments, FMCSA concluded that the exemption request should be denied because it does not meet the statutory factors for an exemption. For the Federal Register notice of the denial, visit https://www.federalregister.gov/d/2021-27220.

 

Legislation

Bill would allow COVID relief funds to relieve supply chain challenges

Rep. Josh Gottheimer (D-New Jersey) has introduced legislation (H.R. 6360) that would allow establish a “supply chain czar” to coordinate a national response to supply chain disruptions. The bill also would allow states to use unobligated COVID relief funds for measures to address supply chain disruptions. Among activities that could be funded through such funds are promotion of employment in trucking and logistics; establishment of apprenticeship programs to recruit more women and military veterans to be truck drivers; and undertaking port and shipping infrastructure projects. For more information, visit https://www.congress.gov/bill/117th-congress/house-bill/6360.

 

Advocacy and Comment

The issues addressed above evidence administrative action to address the driver shortage in the form of a younger driver pilot program and a “trucking action plan” to encourage new drivers and recoup veterans as drivers. Unaddressed are two issues which most truckers believe exacerbate the alleged driver shortage. As noted before, there are approximately 100,000 new applicants for authority which is largely traceable to mature owner operator drivers who fear the demise of the independent contractor model due to pending state and federal legislation and the court challenge to AB5. The most troubling question is how many of these new applicants can afford the high cost of insurance and compliance as small motor carriers and to what extent the failure rate will result in additional retirements and attrition.

The second issue results from a serious productivity problem caused by uncompensated detention and inordinate loading and unloading delays at ports, railheads and shippers’ docks. MIT, no less, suggests that its studies prove that with 15 minutes per day per unit, truck productivity could be raised to the level to eliminate the existing shortage.

ddressing dock and port inefficiencies and abusive detention practices, particularly in the dray foodstuffs industry, is in the public interest. In the days of the ICC, those of us who are old enough to remember saw the imposition of mandatory detention rules which made shippers and receivers financially accountable for failing to load or unload trucks within allotted free time. Not only do loading and unloading delays frustrate driver productivity and discourage productivity pay based on mileage or percentage, such inefficiencies also require more trucks and trailers which now command skyrocketing prices.

It seems apparent that addressing the causes of the bottlenecks and providing for compensatory waiting time is a proper way to allocate costs and retain otherwise frustrated drivers while encouraging greater productivity.

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Regulatory and Legislative Update - December 2021

By Dan Boaz

Contents

FMCSA has extended its emergency declaration regarding COVID-19 through February 28. For the latest version and other guidance related to COVID-19 is available at www.fmcsa.dot.gov/COVID-19. Note that use of the declaration now requires monthly reporting by carriers.

Legislation

Regulation and Enforcement

Advocacy and Comment

 

Legislation

House passes ocean shipping reform bill

The U.S. House of Representatives on December 8 passed by a 364 to 60 vote legislation (H.R. 4996) that would require ocean carriers or marine terminal operators to certify that any detention or demurrage charges comply with federal regulations. The legislation, which is among several measures pending in Congress aimed at addressing issues at ports, also would shift the burden of proof regarding reasonableness from the invoiced party to the ocean carrier or marine terminal operator. Moreover, the bill would also authorize the Federal Maritime Commission to investigate on its own initiative ocean carriers’ business practices and apply enforcement measures as appropriate. For more information, visit https://www.congress.gov/bill/117th-congress/house-bill/4996.

More than a year ago, the American Trucking Associations filed a complaint with FMC alleging that the Ocean Carrier Equipment Management Association and 11 ocean carriers have overcharged motor carriers and their customers for intermodal container chassis at ports and inland terminals throughout the U.S. Adjudication of that complaint is slowly working its way through the FMC process. For the ATA complaint and other documents related to the proceeding, visit at https://www2.fmc.gov/readingroom/proceeding/20-14.

House passes Build Back Better Act

By a highly partisan vote of 220 to 213, the House on November 19 passed legislation (H.R. 5376) – known as the Build Back Better Act – that funds programs in a wide range of areas, including education, labor, childcare, health care, immigration and the environment. The bill, which is a priority of progressive Democrats, had been linked politically with the infrastructure bill until House Democrats decided to move forward with that legislation separately in the wake of unfavorable electoral results in November. (For details of the infrastructure package, see the November 2021 Regulatory Update.) The bill now goes to the Senate where its prospects for passage in its current form are uncertain.

H.R. 5376 does not directly relate to trucking, although provisions promoting electric vehicles might indirectly encourage electric propulsion in heavier vehicles. Although not directly involving trucking, the bill also promotes labor unions. For example, contractors used in installing “green energy” fixtures and systems must pay employees prevailing wage rates as determined by the Labor Department.

House bill would federalize major crash lawsuits, criminalize staging of crashes

Reps. Henry Cuellar (D-Texas) and Garret Graves (R-Louisiana) have introduced a bill (H.R. 6151) that would establish federal court jurisdiction over litigation involving commercial motor vehicles under certain conditions. The bill also would establish criminal penalties for staging collisions with CMVs – a problem that has grown in recent years – and would require disclosure of any party other than the plaintiff or plaintiff’s counsel that has a right to receive payment contingent on a settlement or judgment. Third-party financing of crash litigation recently has raised concern in the trucking industry.

The bill would assign lawsuits involving CMVs operating in interstate commerce to a federal district court in situations where the claim exceeds $5 million and where the plaintiff is a either a citizen of a state that is different from any defendant or a citizen of a foreign country.

Under the proposed legislation, an individual who intentionally causes a collision with a CMV or arranges for another person to do so is subject to a fine, imprisonment for up to 20 years, or both. If such an action results in death or serious bodily injury to another person, the penalty escalates to not less than 20 years in prison as well as a fine.

Proposed legislation seeks to relieve supply chain crunch

Sen. Mike Lee (R-Utah) and Rep. Michelle Fischbach (R-Minnesota) have introduced bills (S. 3252, H.R. 6028) aimed at relieving the port congestion that has contributed to supply chain challenges. The bills would several temporary regulatory waivers and actions to help alleviate some of the stress in freight networks.

Several provisions of the bills are specific to trucking. One would require FMCSA to temporarily waive hours-of-service requirements for truck drivers and motor carriers who are transporting cargo directly to or from a U.S. port. Another would require the agency to temporarily allow 18-year-old drivers to receive a temporary commercial driver’s license for (1) the transportation of cargo to or from a U.S. port or (2) to assume the commercial operations of a truck driver who has been re-routed to a U.S. port.

The bill also would require the Department of Defense (DoD) to take an inventory of intermodal equipment (including truck chassis) and permit trucking companies to use the equipment provided that the use does not affect national security and that trucking companies agree to reimburse DoD for any damage.

Another provision that would affect truck drivers would expedite applications for Transportation Worker Identification Credentials (TWIC) for workers needed to provide direct assistance to a U.S. port. Other provisions would provide flexibility for maritime vessels and designate plots of federal land that could be used to store and transfer empty cargo containers. The DoD could impose a fee for truckers’ use of DoD intermodal equipment, and the funds could be used only for remediation of federal land used for container storage.

For more information, visit https://www.congress.gov/bill/117th-congress/house-bill/6028 and https://www.congress.gov/bill/117th-congress/senate-bill/3252.

Bills would set the stage for a shared chassis pool in Memphis

U.S. lawmakers representing the greater Memphis area have sponsored identical House and Senate bills (H.R. 6081, S. 3268) that would direct the Department of Transportation to issue a request for a private company to develop an operating model for a shared chassis pool at or near the rail ramps in Memphis, Tennessee. The consultant would identify a suitable location or locations and consult with relevant stakeholders. For more https://www.congress.gov/bill/117th-congress/house-bill/6081 and https://www.congress.gov/bill/117th-congress/senate-bill/3268.

 

Regulation and Enforcement

Vaccination/testing mandate still on hold pending Sixth Circuit review

The Occupational Health and Safety Administration’s emergency temporary standard (ETS) that would require most employers with 100 or more employees to ensure that their employees are either vaccinated against the coronavirus (COVID) or undergo weekly testing remains on hold after the U.S. Court of Appeals for the Fifth Circuit imposed a stay on November 12. Multiple lawsuits were filed in multiple circuits, but the U.S. Court of Appeals for the Sixth Circuit has now been assigned jurisdiction.

In the interim, OSHA has extended the comment period on the ETS and on whether it should be adopted as a permanent standard. Comments are due January 19. For more information, visit https://www.regulations.gov/document/OSHA-2021-0007-0900.

AAMVA seeks CDL test exemption for three states

FMCSA is requesting comments by January 10 regarding a multi-year exemption requested by the American Association of Motor Vehicle Administrators (AAMVA) that would allow the state driver licensing agencies (SDLAs) in Maryland, New Hampshire, and Virginia to continue using revised commercial driver’s license (CDL) pre-trip vehicle inspection and revised control skills test procedures. The three states are currently conducting field tests of revised procedures as part of a pilot program under an FMCSA waiver. AAMVA states that the requested exemption would allow states to continue operating under the pilot model without the burden of reverting to the older CDL test model. For the Federal Register notice, visit https://www.federalregister.gov/d/2021-26641.

 

Advocacy and Comment

This month’s update is heavy on pending legislation. Supply chain disruptions, intermodal bottlenecks, and shortages highlight our dependence on overseas production and the importation of cheap goods. Our attenuated foreign supply chain, our trade imbalance and the “build back better” initiative all create a toxic stew for predicting 2022 inflation and increased labor costs.

Further distribution changes are foreseeable as inventories and production sourcing are redomesticated. Jobs, warehousing, technology, trade, and energy policy are all wildcard issues. With shifting transportation demands, increasing transportation costs and driver retention issues involved, next year may be “the best of times, the worst of times” and the times that try men’s souls.

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