Spring 2021 regulatory agenda: FMCSA seeks to ‘streamline and improve’ database of drivers who fail drug, alcohol tests

First published by Safety+Health an NSC publication.
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Photo: Jane Terry

 

Washington — A proposal to “streamline and improve error-correction procedures, queries, and consent requirements” within the Federal Motor Carrier Safety Administration’s Drug and Alcohol Clearinghouse is among the anticipated agency actions listed on the Department of Transportation’s regulatory agenda for Spring 2021.

Released June 11, the agenda – issued by the Office of Information and Regulatory Affairs twice a year – provides the status of and projected dates for all potential regulations listed in three stages: pre-rule, proposed rule and final rule. Listings marked “long term” aren’t expected to be worked on for at least six months.

The potential measure to amend clearinghouse protocol is among seven regulations listed in the proposed rule stage, with a notice for proposed rulemaking expected in February.

FMCSA fully implemented the clearinghouse in January 2020, unveiling a national online database intended to enhance road safety by providing – in real time – the names of commercial motor vehicle drivers who have failed drug and alcohol tests.

Federal regulations mandate motor carriers conduct preemployment drug testing in addition to random testing. Employees who test positive are prohibited from performing safety-sensitive functions, which includes operating a CMV.

As of May 1, marijuana was the most common substance found in positive tests for substance misuse among CMV drivers, having been detected in 40,053 of the 75,522 positive tests reported to the clearinghouse since Jan. 6, 2020. Cocaine (10,626) and methamphetamine (6,969) were the next most common substances identified. Multiple substances can appear in positive tests, FMCSA notes.

Among the 12 regulations FMCSA lists in the final rule stage is an item concerning the addition of rear impact guards to the list of components to be examined during mandatory annual inspections of CMVs.

Designed to prevent “underrides,” which occur when a passenger vehicle strikes the rear of a CMV and slides underneath, rear impact guards have been required on CMVs for nearly 70 years, states a notice of proposed rulemaking published in the Dec. 29 Federal Register. However, the guards are excluded from the list of components in Appendix G for required inspections, meaning a CMV can pass an annual inspection with a missing or damaged rear impact guard, according to FMCSA.

The agency also is proposing to amend labeling requirements for the guards “and to exclude road construction controlled (RCC) horizontal discharge trailers from the rear impact guard requirements,” the NPRM states.

“Including rear impact guards and rear end protection in the periodic inspection requirements in Appendix G will call additional attention to this critical safety component and help ensure that each vehicle is checked at least once a year, improving compliance and helping to prevent fatalities and injuries when rear-end collisions occur,” the NPRM states. “Furthermore, including rear impact guards and rear end protection in the periodic annual inspection standards will harmonize U.S. regulations with those in Canada and Mexico, which include rear impact guards and rear end protection as part of their annual inspection programs.”

A final rule is expected to be published in November.


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Fall 2020 regulatory agenda: OSHA infectious diseases standard still ‘long-term action’

First published by Safety+Health an NSC publication.
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Photo: OSHA

Washington — A potential infectious diseases standard from OSHA remains on the list of long-term actions in the Department of Labor’s regulatory agenda for Fall 2020 – the last under the Trump administration.

Released Nov. 9, the agenda – issued by the Office of Information and Regulatory Affairs twice a year – gives the status of and projected dates for all potential regulations listed in three stages: pre-rule, proposed rule and final rule. Listings marked “long term” aren’t expected to be worked on for at least six months.

That could change, however, if President-elect Joe Biden – after taking office Jan. 20 – directs OSHA to issue an emergency temporary standard on infectious diseases related to the COVID-19 pandemic. Such a directive would require the agency to then develop a permanent standard within six months.

Much of the rest of the agenda remains largely unchanged since the previous agenda was released July 1, although five OSHA regulations were finalized:

On July 10, MSHA announced no changes were made to the agency’s training requirements for refuge alternatives in underground coal mines, removing its only final rule from the agenda.

MSHA has one addition to the agenda: a proposed update and clarification to 30 CFR 50 – its rules on “notification, investigation, reports and records of accidents, injuries, employment and coal production in mines.”

The agency is seeking to revise the definition of “occupational injury/illness” to include “work-related.” It also seeks to review incidents that need to be reported within 15 minutes, noting in the agenda item that “the current list includes 12 types of accidents, and may be overly broad.” Also planned by MSHA is an accommodation of electronic reporting and recordkeeping, as well as a proposed attempt to “reduce recordkeeping and reporting burdens, to the extent feasible.”

OSHA’s standard on tree care operations has moved from pre-rule to proposed rule, and a notice of proposed rulemaking could be published in October. Another new item on the agenda is the proposed removal of 1910.217(g) from OSHA’s Mechanical Power Presses Standard, which requires the reporting of injuries resulting from mechanical power presses and the reporting criteria therein.

“There is a lack of evidence that OSHA uses this specific data,” which the agency states is already required under its Injury and Illness Recordkeeping Requirement Standard.

A new final rule listed would change the interpretation of the anti-retaliation provision of the Occupational Safety and Health Act of 1970, based on the Supreme Court’s opinion in University of Texas Southwestern Medical Center v. Nassar issued in 2013. In the case, the court held that defendants must prove in anti-retaliation cases that retaliation was the sole motivating factor for an adverse action such as a firing, instead of one of multiple motivating factors.

OSHA’s potential rule on workplace violence in health care and social assistance remains in the pre-rule stage, but a Small Business Advocacy Review panel is expected to convene in the near future, one of the next steps in the regulatory process.


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