Watchful eye

15 April 2008

SC&RA continually monitors a number of the 15 US Executive Departments and their agencies for regulations that are under review or development. In 2006, 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' Semi-annual Regulatory Agenda, which appeared in the December 11, 2006 edition of the Federal Register.

Labor Department

Cranes and Derricks. A number of industry stakeholders asked 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. There are estimated to be 64 to 82 fatalities 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 resulting in a final consensus document. Under development are OSHA's risk analysis and estimates of the costs and benefits of the rule change.

Walking Working Surfaces and Personal Fall Protection Systems (1910) (Slips, Trips, and Fall Prevention). New technologies and procedures have become available to protect employees from these hazards since OSHA proposed a rule (55 FR 13360) in 1990 addressing these hazards. OSHA has been working to update these rules to reflect current technology. The agency published a notice to reopen the rulemaking for comment on a number of issues raised in the record for the Notice of Public Rulemaking or related to technological advances. As a result of the comments received on that notice, OSHA has determined that the rule proposed in 1990 is out-of-date and does not reflect current industry practice or technology. The agency plans to develop a new proposal, modified to reflect current information, as well as reassess the impact of a new rule by October 2007.

Updating OSHA Standards based on National Consensus Standards. In the 30 years since the adoption of national consensus standards as OSHA standards, the organizations responsible for these standards have issued updated versions. However, in most cases, OSHA has not revised its regulations to reflect later editions of the consensus standards. OSHA standards also continue to incorporate by reference various consensus standards that are now outdated and, in some cases, out of print. The agency has undertaken a multi-year project to update these standards. A notice describing the project appeared in the Federal Register on November 24, 2004 (69 FR 68283), followed by the first final rule on September 13, 2005. Several additional sets of standards are in preparation.

Revision of the Form 5500 Series and Implementing Regulations. This rulemaking would amend and update the regulatory and related requirements for annual reporting by employer benefit plans in conjunction with the Employee Benefits Security Administration's proposal to amend the regulations under section 104 to require that such reports be filed electronically. Final action is anticipated by February 2007.

Transportation Department

Size and Weight Enforcement and Regulations. This Federal Highway Administration (FHWA) rulemaking would update the regulations governing the enforcement of commercial vehicle size and weight to incorporate provisions enacted in SAFETEALU (the surface transportation act), remove and correct outdated references, and clarify the usage of the terms recreational vehicles and nondivisible vehicles or loads. A final rule is expected in early 2007.

New Entrant Safety Assurance Process. This Federal Motor Carrier Safety Administration (FMCSA) proposed rule would change the New Entrant Safety Assurance Process by raising the standard of compliance for passing the new entrant safety audit. It also would make clarifying changes to some of the existing new entrant regulations. In addition, it proposes a separate application procedure and safety oversight system for non-North America-domiciled motor carriers. The proposed rule aims to improve the agency's ability to identify at-risk new entrant carriers and to ensure deficiencies in basic safety management controls are corrected before the new entrant is granted permanent registration. These changes would not impose additional operational requirements on any new entrant carrier. All new entrants would continue to receive educational information on how to comply with the safety regulations and be given an opportunity to correct any deficiencies found. FMCSA recognizes many new entrants are small businesses that are unaware of these requirements and continue to need our assistance. An interim final rule has been in effect since January 1, 2003. A notice of proposed rulemaking is imminent.

Federally Approved Safety Inspection Program and Decal to Verify Compliance with Safety and Operating Authority Regulations. This rulemaking would amend FMCSA regulations to establish a Federally Approved Safety Inspection program and Federal Standard Inspection (FSI) procedure. It also would supplement existing requirements concerning inspection and decal display for Mexico-domiciled motor carriers that have been granted authority to operate beyond municipalities and commercial zones along the United States-Mexico border. The FSI would be equivalent to the North American Standard Inspection procedure currently used by Federal, State, and Provincial enforcement agencies conducting commercial motor vehicle (CMV) inspections in the United States and Canada. The rulemaking would clarify at what point the inspection must be conducted if the Mexico-domiciled long-haul CMV lacks a federally approved decal and ensure that civil penalties applicable to Mexico-domiciled long-haul motor carriers are the same whether the carrier holds provisional or permanent operating authority. By providing for more effective enforcement of the inspection and decal display requirements applicable to Mexico-domiciled long-haul motor carriers, this rulemaking would help ensure these motor carriers operate safe CMVs in the United States. A notice of proposed rulemaking is expected in March.

Electronic On-Board Recorders for Hours-of-Service Compliance. This rulemaking would amend FMCSA regulations to incorporate new performance standards for electronic on-board recording devices (EOBRs) to document compliance with the Federal hours-of-service rules. This would help ensure that performance standards for EOBRs are appropriate and reflect state-of-the-art communication and information management technologies. The rulemaking would consider the potential benefits and costs of requiring motor carriers to install and use EOBRs and evaluate alternative approaches, including mandating such practice industrywide, limiting the requirement to motor carriers with certain characteristics, and allowing EOBR use to remain voluntary. The timetable called for a notice of proposed rulemaking in December 2006.

Hours of Service of Drivers; Supporting Documents. This FMCSA rulemaking would amend the hours-of-service recordkeeping requirements to clarify what supporting documents motor carriers must have to validate hours of service records. It will clarify: that the duty of motor carriers is to verify the accuracy of drivers' hours of service (HOS) and records of duty status (RODS) if 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 on a 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 is considered significant because of substantial industry interest and safety. A final rule was expected by the end of 2006

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