‘07 Regulatory review

By Terry White07 March 2008

The SC&RA continually monitors the regulatory actions of a number of US government agencies as t

The SC&RA continually monitors the regulatory actions of a number of US government agencies as t

Sixty years ago, a group of heavy and specialized carriers that ultimately became SC&RA joined forces, largely to monitor federal regulations and to speak with a united voice concerning regulatory matters. SC&RA has never stopped scrutinizing a number of the 15 United States Executive Departments and their agencies for regulations that are under review or development.

In 2007, regulatory actions directly affecting the association's members were undertaken by the Departments of Energy, Homeland Security, Justice, Labor, Transportation and Treasury. Of particular interest are actions by the Labor and the Transportation Departments. Below are a few of the noteworthy items included in these Departments' Semiannual Regulatory Agenda, which appeared in the December 10, 2007 edition of the Federal Register.

Labor Department

Cranes and Derricks. A number of industry stakeholders asked the Occupational Health and Safety Administration (OSHA) to update the cranes and derricks portion of subpart N (29 CFR 1926.550), specifically requesting that negotiated rulemaking be used. There have been considerable technological changes since the development of the consensus standards upon which the 1971 OSHA standard is based. In addition, industry consensus standards for derricks and crawler, truck and locomotive cranes were updated as recently as 2004. An estimated 64 to 82 fatalities are associated with cranes each year in construction, and a more up to date standard would help prevent them. In 2002, OSHA published a notice of intent to establish a negotiated rulemaking committee. A year later, in 2003, committee members (including an SC&RA representative) were announced and the Cranes and Derricks Negotiated Rulemaking Committee was established and held its first meeting. In July 2004, the committee reached consensus on all issues and submitted its recommendations. A Small Business Regulatory Enforcement Fairness Act panel was convened in August 2006 to obtain input from small businesses; a report summarizing the panel's findings was issued in October 2006. The agency announced plans to issue a notice of proposed rulemaking in January 2008.

Confined Spaces in Construction (Part 1926): Preventing Suffocating/Explosions in Confined Spaces. In January 1993, OSHA issued a general industry rule to protect employees who enter confined spaces (29 CFR 1910.146). This standard does not apply to the construction industry because of differences in the nature of the worksite in the construction industry. In discussions with the United Steel Workers of America on a settlement agreement for the general industry standard, OSHA agreed to issue a proposed rule to extend confined- space protection to construction workers appropriate to their work environment. A notice of proposed rulemaking was issued on November 28, 2007.

Lead in Construction. On September 27, 2007, OSHA completed a review of its Lead in Construction Standard (29 CFR 1926.62) pursuant to section 610 of the Regulatory Flexibility Act and Section 5 of Executive Order 12866. OSHA issued the standard in 1993 in response to a statutory directive to protect construction workers from lead related diseases such as neurological and kidney disease and negative cardiovascular effects. The review, which began on June 6, 2005, found that the standard has reduced blood lead levels in construction workers, thereby reducing lead-related disease. It also found that the standard has not had a negative economic impact on business, including small businesses in virtually all sectors affected, is not overly complex and does not conflict with other regulations. OSHA concluded it is necessary to retain the standard but will consider improving outreach materials and increasing their dissemination, and will consult with Housing and Urban Development and the Environmental Protection Agency about developing a unified training curriculum and further integrate initial assessment interpretations to reduce cost and simplify requirements for small businesses.

Proposed Pension Protection Act Revisions to Form 5500. The Department of Labor's Employee Benefits Security Administration, the Internal Revenue Service and the Pension Benefit Guaranty Corporation announced proposed supplemental revisions to the 2008 Form 5500 on December 8, 2007. Pension and welfare benefit plans required to file an annual return regarding their financial condition, investments and operations each year generally satisfied that requirement by filing the Form 5500 Annual Return/Report of Employee Benefit Plan and any required attachments. The proposed revisions implement amendments to the annual reporting and pension funding requirements of the Employee Retirement Income Security Act and Internal Revenue Code enacted as part of the Pension Protection Act (PPA). The proposal supplements a more general revision of the 2008 Form 5500 proposed by the agencies in July 2006. The supplemental proposal would replace the Schedule B (Actuarial Information) filed by defined benefit pension plans with separate actuarial schedules for multiemployer plans and single employer plans. The supplemental proposal also would add questions to the Schedule R (Retirement Plan Information) to collect new information on defined benefit pension plans required under the PPA. Finally, the supplemental proposal would establish the Form 5500-SF, which was part of the agencies' July 2006 proposal, as the simplified report required by PPA for plans with fewer than 25 participants. These proposed revisions would be effective for 2008 plan year filings.

Transportation Department

Hours of Service of Drivers; Supporting Documents. This rulemaking would amend the hours-of-service (HOS) recordkeeping requirements concerning what supporting documents motor carriers must have to validate hours of service records. It would clarify: That the duty of motor carriers is to verify the accuracy of drivers' hours or service and records of duty status (RODS), including automatic on-board records; that the driver's duty is to collect and submit to the motor carrier all supporting documents with the RODS; that carriers are required to maintain supporting documents with the RODS; and that a supporting document- based self-monitoring system is required to be the primary method for ensuring compliance with the HOS regulations. It would allow the use of electronic documents as a supplement to, and in certain instances in lieu of, paper supporting documents in recognition of developing technologies. It would clarify the definitions of ‘‘supporting documents,'' ‘‘employee,'' and ‘‘driver,'' and the current requirement that each motor carrier use a self-monitoring system to verify HOS and RODS. This rulemaking has been in the works since April 20, 1998. The Federal Motor Carrier Safety Administration (FMCSA) withdrew the rule on October 25, 2007 to further review Paperwork Reduction Act impacts and burdens.

Safety Monitoring System and Compliance Initiative for Mexico-Domiciled Motor Carriers Operating in the United States. This rule would implement a safety monitoring system and compliance initiative designed to evaluate the continuing safety fitness of all Mexico-domiciled carriers within 18 months after receiving a provisional Certificate of Registration or provisional authority to operate in the United States. It also would establish suspension and revocation procedures for provisional Certificates of Registration and operating authority, and incorporate criteria to be used by FMCSA in evaluating whether Mexico-domiciled carriers exercise basic safety management controls. The interim rule included requirements that were not proposed in the notice of proposed rulemaking but which are necessary to comply with the FY-2002 DOT Appropriations Act. On January 16, 2003, the Ninth Circuit Court of Appeals remanded this rule, along with two other NAFTA-related rules, to the Agency, requiring a full environmental impact statement and an analysis required by the Clean Air Act. On June 7, 2004, the Supreme Court reversed the Ninth Circuit and remanded the case, holding that FMCSA is not required to prepare the environmental documents. FMCSA is waiting for Interim Final Rule experience after the border opens before deciding what to do next on this rulemaking. FMCSA originally planned to publish a final rule by November 28, 2003.

Unified Registration System. This rulemaking would replace three current identification and registration systems: The US DOT number identification system, the commercial registration system, and the financial responsibility system, with an on line Federal unified registration system (URS). This program would serve as a clearinghouse and depository of information on, and identification of, brokers, freight forwarders, and others required to register with the Department of Transportation. DOT is revising this rulemaking to address amendments directed by SAFETEA-LU (the surface transportation act). The replacement system for the Single State Registration System, which the ICC Termination Act originally directed be merged under URS, will be addressed separately. The process began with an advance notice of proposed rulemaking in August 1996. A notice of public rulemaking began in May 2005 with the comment period ending three months later. A supplemental notice of public rulemaking is expected in March 2008.

Requirements for Intermodal Equipment Providers and Motor Carriers and Drivers Operating Intermodal Equipment. This rulemaking would require entities that offer intermodal container chassis for transportation in interstate commerce to: File a Motor Carrier Identification Report (Form MCS-150); display a USDOT identification number on each chassis offered for such transportation; establish a systematic inspection, repair, and maintenance program to ensure the safe operating condition of each chassis offered for transportation and maintain documentation of the program; and provide a means for effectively responding to driver and motor carrier complaints about the condition of intermodal container chassis. The rulemaking is considered significant because of substantial industry and congressional interest and because it involves other departmental modes. The notice of proposed rulemaking was issued on December 21, 2006 with the comment period set to end three month later. The comment period was extend to May 21, 2007. A final rule is anticipated in April 2008.

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