IHMM Today January 11, 2022

EPA

Federal Register Notice Open for Public Participation: “The Hazardous Waste Electronic Manifest System Advisory Board: Request for Nominations”. On December 14, 2021, EPA published a Federal Register notice announcing the Agency is seeking nominations from the public for experts for EPA to consider for membership on the Hazardous Waste Electronic Manifest System Advisory Board (e-Manifest Advisory Board). Nominations of candidates must be received on or before January 13, 2022. Read more…

Department of Transportation

Federal Register Volume 86, Number 240 (Friday, December 17, 2021)[Notices][Pages 71704-71705]

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2021-0107]

Agency Information Collection Activities; Approval of a New Information Collection Request; Waiver and Exemption Requirements

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice and request for comments. 

SUMMARY: In accordance with the Paperwork Reduction Act of 1995, the Federal Motor Carrier Safety Administration (FMCSA) announces its plan to submit the Information Collection Request (ICR) described below to the Office of Management and Budget (OMB) for its review and approval and invites public comment. This notice invites comment on a new information collection titled “Waiver and Exemption Requirements.” The ICR estimates the burden applicants incur to comply with the reporting tasks required for requesting waivers and exemptions. FMCSA has not previously accounted for these burdens.

DATES: Comments on this notice must be received on or before January 18, 2022.

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Department of Transportation

Federal Register Volume 86, Number 240 (Friday, December 17, 2021)[Notices][Pages 71705-71706]

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2021-0158]

Agency Information Collection Activities; Renewal of a Currently Approved Information Collection: Motor Carrier Identification Report

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).

ACTION: Notice and request for comments. 

SUMMARY: In accordance with the Paperwork Reduction Act of 1995, FMCSA announces its plan to submit the Information Collection Request (ICR) described below to the Office of Management and Budget (OMB) for its review and approval and invites public comment. FMCSA requests approval to revise an ICR titled, “Motor Carrier Identification Report,” which is used to identify FMCSA regulated entities, help prioritize the agency’s activities, aid in assessing the safety outcomes of those activities, and for statistical purposes. This ICR is necessary to ensure regulated entities are registered with the DOT.

DATES: Comments on this notice must be received on or before February 15, 2022.

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PHMSA

Publication of HM-264A NPRM – Suspension of HMR Amendments Authorizing Transportation of Liquefied Natural Gas by Rail

The Pipeline and Hazardous Materials Safety Administration (PHMSA) has published a notice of proposed rulemaking (NPRM) in the Federal Register titled, “Hazardous Materials: Suspension of HMR Amendments Authorizing Transportation of Liquefied Natural Gas by Rail.” This NPRM proposes to amend the Hazardous Materials Regulations to suspend authorization of liquefied natural gas (LNG) transportation in rail tank cars pursuant to the LNG by Rail final rule published in July 2020, pending the earlier of either completion of a separate rulemaking under RIN 2137-AF54 evaluating potential modifications to requirements governing rail tank car transportation of LNG, or June 30, 2024.

The NPRM may be viewed here: https://www.federalregister.gov/documents/2021/11/08/2021-23132/hazardous-materials-suspension-of-hmr-amendments-authorizing-transportation-of-liquefied-natural-gas.

PHMSA

Fireworks Standard Change

The American Pyrotechnics Association (APA) Standard 87-1 version 2001 will become obsolete and archived beginning on November 26, 2021. Any applications submitted to PHMSA after this date under the old standard will be denied. All new applications submitted to PHMSA after November 26, 2021 must be in compliance with the 2018 APA Standard 87-1 A, B, or C version. Additionally, the publications and outreach materials for fireworks transportation on the PHMSA website are currently being updated with information from the new 2018 standard and will be made available soon.

PHMSA

Lithium Battery Test Summary Phase-in

Effective January 1, 2022, lithium cell and battery manufacturers and subsequent distributors of lithium cells and batteries manufactured after January 1, 2008 must make a lithium battery test summary available to others in the supply chain. The test summary verifies that the lithium cells and batteries have successfully passed the tests prescribed in Part III, Sub-section 38.3 of the UN Manual of Tests and Criteria. The test summary includes a standardized set of elements that provide traceability and accountability to ensure that lithium cell and battery designs offered for transport meet UN 38.3 test requirements. This requirement was introduced into the HMR via the Final Rule “Hazardous Materials: Harmonization with International Standards” (HM-215O), published on May 11, 2020.

The Final Rule can be viewed here: https://www.federalregister.gov/documents/2020/05/11/2020-06205/hazardous-materials-harmonization-with-international-standards.

The comment period for this NPRM closed on December 23, 2021. Keep an eye out for new outreach materials from PHMSA introducing and describing this new HMR requirement!

Beltway Buzz – Ogletree & Deakins

COVID-19 Vaccine Requirements. Today the Supreme Court of the United States heard oral argument on whether the Occupational Safety and Health Administration’s (OSHA) COVID-19 vaccine emergency temporary standard (ETS) and the Centers for Medicare and Medicaid Services’ (CMS) vaccine mandate for healthcare workers should be stayed pending judicial review. Because this legal issue (and the virus itself) are moving quickly, a decision is expected soon. Here is the current state of play while we wait for a ruling by the Supreme Court.

• OSHA. As a result of a ruling by the Sixth Circuit Court of Appeals lifting a stay of the ETS, OSHA will enforce the ETS as follows:
• • January 10, 2022, is the deadline by which employers with 100 or more employees must develop and implement COVID-19 vaccine policies, as well as comply with the other ETS provisions that do not directly involve vaccines and testing.
  • February 9, 2022, is the date by which OSHA will enforce the vaccination and testing requirements of the ETS.

• CMS. Subject to various legal challenges and accompanying twists and turns, the CMS rule remains in effect in California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington, and Wisconsin. The rule is also no longer enjoined in the District of Columbia.
• Federal Contractor Vaccine Mandate. Legal challenges to Executive Order 14042 and its implementing guidance are not part of today’s Supreme Court hearing. Several federal courts have enjoined the mandate, and these orders vary in their scope of applicability. The most sweeping order was issued by the U.S. District Court for the Southern District of Georgia, which has enjoined the mandate nationwide.

Congress: Legislating in an Election Year. The U.S. Senate returned to a snowy Washington, D.C., this week while the U.S. House of Representatives remained out on its district work period. While the November midterm elections may seem a long way off, they will arrive sooner than one might think, and will play a significant role in the 2022 legislative debates in the U.S. Congress. As the elections approach, it will become increasingly difficult for leaders of both parties to encourage their members to take tough votes. This means that there will be a rush to move legislation during the first half of the year. The Buzz is monitoring the following issues:

• Build Back Better Act. Months of intraparty negotiations among Democrats appear to have resulted in little progress in advancing this priority legislative vehicle, which may temporarily move to the side burner (not necessarily the back burner) as Democrats retrain their focus on voting rights and election reform. Remember that the Build Back Better Act includes federal paid leave and new and additional civil penalties for labor and employment violations.
• COVID-19 Relief? The sudden rise of the Omicron variant raises the issue of whether there may be a need for additional federal pandemic relief, especially targeted assistance for the hospitality industry. However, it does not appear that Congress will have any appetite for this for the time being. But never say never: if the last two years have taught us anything, it is to expect the unexpected.
• Nominations. Presidential nominees who were not confirmed in the first session of the 117th Congress must be resubmitted by the president. The Buzz will be watching to see what will happen with David Weil, who was nominated to lead the U.S. Department of Labor’s (DOL) Wage and Hour Division, but received political pushback in the U.S. Senate Committee on Health, Education, Labor, and Pensions (HELP). Weil’s nomination has been resubmitted, but he is likely to face the same opposition.
• Protecting the Right to Organize (PRO) Act. As the Buzz has been writing for months, the major labor overhaul bill and top priority of the AFL-CIO is unlikely to move as long as the legislative filibuster holds in the U.S. Senate.
• Pregnant Workers Fairness Act. The workplace accommodation bill (H.R. 1065) for pregnant workers is on the precipice of becoming law. Bipartisan votes in the House and in the Senate HELP Committee indicate that the bill may have enough votes to overcome a legislative filibuster.

Task Force on Union Organizing. By the end of October 2021, the Task Force on Worker Organizing and Empowerment was to have delivered to President Biden its report on ways the executive branch could increase union organizing. As of this writing, the report has not been made public, and a White House spokesperson this week did not have a response when asked by a reporter when the report would be released. The report—whether released publicly or not—is expected to provide a road map for 2022 regulatory action intended to increase union membership rolls. Actions could potentially include federal contractor blacklisting or union neutrality requirements.

Department of Labor. The DOL spent much of 2021 reversing Trump-era policies, including regulations relating to independent contractors, joint employment, and tipped employees. Expect the DOL to continue its aggressive regulatory agenda in 2022. For example, we know from the Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions that the Wage and Hour Division expects to propose changes to the Fair Labor Standards Act’s overtime regulations. In addition, at any time now, OSHA is expected to propose a restoration of its Obama-era injury and illness reporting requirements. And in the first few months of this year, the Office of Federal Contract Compliance Programs (OFCCP) may propose amending its investigation and pre-enforcement conciliation processes and requiring contractors to notify OFCCP when they enter into subcontractor arrangements so that the agency might conduct compliance investigations of covered subcontractors.

As always, personnel will continue to be an issue to watch at DOL in 2022. Will President Biden be able to fill vacancies at the top of the Wage and Hour Division, Employee Benefits Security Administration, Employment and Training Administration, and Mine Safety and Health Administration? Getting these vacancies filled will be critical to advancing each subagency’s enforcement and regulatory agendas. Finally, we will be watching the status of Secretary of Labor Marty Walsh, who is rumored to be interested in running for governor of Massachusetts in 2022.

National Labor Relations Board. The National Labor Relations Board has had a Democratic majority since about September 2021 and a Biden-appointed general counsel since July 22, 2021. As a result, toward the end of 2021, we began to see major actions taking shape with regard to significant policy changes at the Board. For 2022, the Board has already teed up the following issues:

• Fractured Bargaining Units. The Board is currently accepting amicus briefs on the issue of a return to the bargaining unit determination standard as set forth in the 2011 Specialty Healthcare and Rehabilitation Center of Mobile case. Ultimately, the Board is expected to return to this standard, which requires the demonstration of an “overwhelming community of interest” to include excluded employees into a petitioned-for bargaining unit.
• Joint Employer. According to the Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions, the Board expects in the coming weeks to “engage in rulemaking on the standard for determining whether two employers, as defined in Section 2(2) of the National Labor Relations Act (Act), are a joint employer under the Act.” The Board is expected to amend or rescind the current “direct and immediate” standard and replace it with a broader and potentially nebulous standard.
• Independent Contractor. The Board is in the process of reviewing public input on whether it should revise its test for independent contractor status. Dissenting Board members predict that the end result will be a new test that deemphasizes the significance of entrepreneurial opportunity and inappropriately relies on an “economic dependency” standard.
• Consequential Damages on the Way? January 10, 2022, is the deadline by which stakeholders must submit briefs on whether remedies for unlawful terminations should include consequential damages, such as payment of health care expenses or loan defaults.

Equal Employment Opportunity Commission. Due to the statutory terms of its commissioners, the U.S. Equal Employment Opportunity Commission (EEOC) maintained a Republican majority throughout 2021, despite the change of administrations. That majority will last until July 1, 2022, when Commissioner Janet Dhillon’s term will expire. Look for President Biden to have a nominee ready to fill the vacancy as soon as it becomes available. Once Democrats are in the majority, expect the Commission to focus on stalled workplace harassment guidance, EEO-1 wage and hour data reporting, and the redelegation of litigation authority to the general counsel’s office—a practice that many members of the business community believed led to inconsistent and unaccountable enforcement practices. The Buzz would not be surprised if President Biden also put forth a general counsel nominee, as the general counsel position has been vacant since the president removed Sharon Fast Gustafson on March 5, 2021.

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