Associated Builders & Contractors Government Affairs staff has assessed the Trump Administration’s recently released 2017 regulatory agenda, noting the prospect for significant relief from rules or measures the Department of Labor and Environmental Protection Agency adopted under President Barack Obama.
The agenda spells Labor Department actions to immediately or eventually remove “many rules.” The agency recently issued a Request For Information (RFI) on the overtime rule, a likely first step in issuing a revised proposed overtime exemption rule and subject to public comments through September 25. Additionally, the agency has issued a proposal to rescind the persuader rule, officially named “Interpretation of the ‘Advice’ Exemption in Section 203(c) of the Labor-Management Reporting and Disclosure Act.”
By way of public comment, National Ready Mixed Concrete Association President Robert Garbini expressed support for the latter action, noting how the persuader rule serves “to discourage employers from seeking competent legal advice during union organizing campaigns. Small employers who have no expertise in the processes and procedures of union campaigns will be given a Hobson’s choice: either they give up their free speech rights and remain silent, or they express their opinions and risk the commission of unfair labor practices. Employees are denied information which is relevant and necessary to their decision whether or not to be represented by a union for purposes of collective bargaining.”
“The only clear beneficiaries of the revisions are the unions themselves who have a dramatically easier opportunity to mislead and misinform employees. Finally, the new regulation is overbroad, and limits legitimate human resource activities that are tangentially, if at all, related to union organizing.”
On the agenda for this fall is a proposal to reconsider, revise or remove provisions of the Improve Tracking of Workplace Injuries and Illnesses final rule. Other OSHA rules on the agenda include: Crane Operator Qualification in Construction – Proposed Rule; Standards Improvement Project IV – Final Rule, September 2017; Quantitative Fit Testing Protocol: Amendment to the Final Rule on Respiratory Protection, October 2017; Amendments to the Cranes and Derricks in Construction Standard – Long Term Action; and, Lock-Out/Tag-Out Update – Request for Information (RFI), April 2018.
Lock-Out/Tag-Out action stems from recent advancements that employ computer-based controls of hazardous energy (e.g., mechanical, electrical, pneumatic, chemical, radiation), which have become more prevalent as manufacturers modernize plant equipment designs, yet conflict with existing safety protocol. OSHA officials also cite international standards harmonization concerns as computer-based hazardous energy controls are more accepted in other countries than the U.S. An April 2018 RFI will help agency officials understand the strengths and limitations of computer-based controls tied to equipment lock-out/tag-out standard procedures, along with potential hazards to workers.
Labor officials have also listed a proposed rule, “Apprenticeship Programs, Labor Standards for Registration, Amendment of Regulations,” for May 2018 release. It will advance President Trump’s Executive Order 13801, “Expanding Apprenticeships in America,” to create a system for industry-recognized programs and look beyond current government-defined apprenticeship parameters.
FMCSA ACTS ON CRASHES, RELAXES ON SLEEP APNEA
Concurrent with release of the Trump Administration’s inaugural regulatory agenda, the Federal Motor Carrier Safety Administration initiated a 24-month or longer pilot for its Crash Preventability Program Demonstration, accepting truck owner or operator requests for data reviews (RDR)—plus supporting documents, photos or video footage—when accidents entail commercial motor vehicles being struck a) in the rear; b) by a motorist driving under the influence or in the wrong direction; c) while legally stopped or parked; d) by an individual committing or attempting to commit suicide by stepping or driving in front of the truck; or, e) by cargo or equipment from another vehicle. The program is also open to RDR in the case of a commercial motor vehicle sustaining damage after striking an animal in the roadway or being involved in a crash attributable to infrastructure failure, falling trees, rocks or other debris.
Crash involvement is a strong indicator of future crash risk, FMCSA notes. The Crash Preventability Demonstration Program allows the agency to gather data to examine the feasibility, costs, and benefits of making preventability determinations on certain crash types. Staff will use the information to evaluate if preventability determinations improve the agency’s ability to identify the highest-risk motor carriers. Additional information on the program is posted at https://cms.fmcsa.dot.gov/safety.
Also, FMCSA and the Federal Railroad Administration have withdrawn a March 2016 advance notice of proposed rulemaking concerning the prevalence of moderate-to-severe obstructive sleep apnea (OSA) among individuals occupying safety-sensitive highway or rail transportation positions. The agencies believe that current safety programs and FRA’s rulemaking addressing fatigue risk management are the appropriate avenues to address OSA.
REVISITING GLIDER STANDARDS
To address concerns raised by truck glider kit and trailer stakeholders, EPA is taking a second look at provisions of the Phase 2 Greenhouse Gas Emissions and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines rule. According to J.D. Power Valuation Services in McLean, Va., the rule limits a) the number of glider kit vehicles, powered by rebuilt EPA 1998-grade diesel engines, that body or trailer builders can sell for the 2017 calendar year; b) each builder’s output of pre-emissions units to the greatest number built in any year between 2010-2014; and, the glider kit industry to its original purpose of mating a wrecked or worn-out truck’s drivetrain with a new body and chassis.
EPA and the National Highway Traffic Safety Administration issued greenhouse gas (GHG) emissions and fuel efficiency standards for 2014-2018 model year medium- and heavy-duty vehicles in 2011. Dubbed Phase 1, they applied to newly manufactured engines, tractors, vocational vehicles, large pickups, and vans. In October 2016, the agencies updated the standards for 2021-2027 model year medium- and heavy-duty vehicles, and—for the first time under the GHG program— regulated trailers and gliders with compliance deadlines beginning in 2018.
“In light of the significant issues raised, the agency has decided to revisit the Phase 2 trailer and glider provisions,” says EPA Administrator Scott Pruitt. “We intend to initiate a rulemaking process that incorporates the latest technical data and is wholly consistent with our authority under the Clean Air Act.”