SC&RA ramps up advocacy in USA

The SC&RA recently celebrated a major advocacy win as the US Court of Appeals for the Ninth Circuit upheld the Federal Motor Carrier Safety Administration’s (FMCSA) 2018 ruling that California’s meal and rest break rules were pre-empted by federal law.

With the unanimous decision on 15 January 2021, the Court also reaffirmed FMCSA primary authority to regulate commercial motor vehicle safety in the USA, which is essential to interstate commerce.

SC&RA celebrated a major advocacy win as the US Court of Appeals for the Ninth Circuit upheld FMCSA’s 2018 ruling that California’s meal and rest break rules were pre-empted by federal law

Along with PODS Enterprises LLC, Ryder System Inc and Western States Trucking Association, SC&RA filed an amicus curiae brief in late 2019 in support of FMCSA’s primacy therein.

Mike Joyce, principal at Midfield Consulting in Washington DC, revealed, “The unanimous decision in the Ninth Circuit was the right decision for the nation, and certainly for trucking.” 

Joyce added that it is clear from legislation in the early 1990s that (US) states cannot impose regulations that interfere with the flow of interstate commerce with regard to rates, routes or services.

Mike Joyce was adamant that, “The unanimous decision in the Ninth Circuit was right decision”

He said, “The fact that, in trucking, states have to certify each year to USDOT [US Department of Transportation] that their rules and regulations are compatible with federal requirements was clearly disregarded by California.

“The decision by FMCSA in 2018, and reaffirmed in the unanimous decision by the Ninth Circuit, should put the issue to rest.”

Joel Dandrea, SC&RA CEO, agreed, “When a regulatory issue surfaces that can add complexity and burden for our members, and set regulatory precedents that could complicate compliance for members down the road, it is critical that we jump in.

“With this particular case we filed a petition to support federal primacy to help eliminate patchwork regulations, that force individual companies to try and comply with different sets of rules and regulations as they go from state to state.

“It is a victory that provides for simplification, more uniformity and clearer operating understanding for members going from one state to the next.”

SC&RA drives improvement in traffic safety
The US Federal Highway Administration (FHWA) is updating its Manual on Uniform Traffic Control Devices (MUTCD) for the first time in more than a decade.

The MUTCD is the national standard for all roadway signage, which includes requirements and suggestions for critically important safety indicators like bridge postings and vertical clearances.

The SC&RA will provide FHWA comments on their revisions by 14 May 2021, including a series of recommendations made by its Vertical Clearance Task Force in 2020.

The SC&RA joined the Keep Texas Trucking Coalition, an advocacy group in the US state promoting long-term tort reform to address costly nuclear verdicts and soaring insurance premiums currently plaguing the trucking industry. The group is supporting HB19 in the Texas legislature. The association will continue to monitor this legislation, and related action in other states.

The Indiana Department of Revenue released the state’s new automated permit system on 4 February 2021. Despite some initial concerns regarding the interim period between the switch from the old to new system, SC&RA applauds the state’s willingness to address some of its members’ concerns and plan ahead for what is now a far better system.

Tackling surface transportation reauthorisation
With President Joe Biden’s US$1.9 trillion American Rescue Plan is completed, many remain hopeful that the next item on the agenda tackles surface transportation reauthorisation, a key campaign promise made by both the president and US Secretary of Transport Pete Buttigieg.

The SC&RA will also be on the lookout for other key items in whatever proposal finally emerges in addition to long-term highway funding, which will boost demand for highway construction and related industries. The association is examining several legislation options to secure federal funding to help states advance automated permitting across the USA.

While the American Rescue Plan provided significant relief funding for the public transportation, passenger rail and aviation industries. These programmes will likely be addressed again alongside highways in the forthcoming Infrastructure Bill. It remains to be seen how Congress will address priorities between highways and the other modes.

The SC&RA joined fellow members within the Construction Industry Safety Coalition (CISC) in March 2021, signing onto a follow-up letter to the US Department of Labor and the US Occupational Safety and Health Administration (OSHA). This requested a meeting with officials as they considered how OSHA can best protect workers from workplace exposure to Covid-19.

Since an in-person meeting was not ultimately possible between CISC and OSHA representatives, the CISC (comprising 30 trade associations representing virtually every aspect of the construction industry) believes it is imperative to provide the administration with information regarding the experiences of the construction industry throughout the Covid-19 pandemic. 

SC&RA is examining several legislation options to secure federal funding to help states advance automated permitting across the USA

CISC questions the need for the ETS
Much of the concern focused on President Biden’s recent Executive Order 13999 on Protecting Worker Health & Safety, which directed OSHA to consider whether an Emergency Temporary Standard (ETS) is warranted to address Covid-19 in the workplace. Given the sharply declining case counts in the US, the low-risk nature of construction work and the ever-changing nature of the pandemic, the CISC questions the need for the ETS.

According to the letter SC&RA, along with its industry partners at the CISC, is concerned that certain provisions OSHA might include in a Covid-19 standard would be unworkable in construction and would fail to consider the unique characteristics of the construction industry.

The Coalition indicated that, while it appreciated the Administration’s focus on protecting workers from Covid-19, it respectfully urged the Administration to meaningfully engage with the public and provide an opportunity for public input regarding the best approaches to protect workers from occupational transmission of the virus.

Together with its fellow Coalition members, SC&RA noted current conditions do not support a change in OSHA’s nearly year-long position that existing standards are sufficient to enforce safety measures that protect workers from occupational transmission of Covid-19. In particular, based on the experience of CISC members, the issuance of such an “emergency” standard is not necessary at this time to protect construction workers from transmission in the workplace.

SC&RA joined fellow members within the Construction Industry Safety Coalition (CISC), including FOX Brasil at Port of Santos in Brazil, in providing OSHA with information regarding the experiences of the construction industry throughout the Covid-19 pandemic

The Coalition also urged OSHA to open a public docket and consult with the Advisory Committee on Construction Safety & Health (ACCSH) – emphasising that complete transparency is critical. In addition, understanding that the very nature of Covid-19 is not conducive to a strict, static ETS, due to the ever-evolving understanding of the virus. Coalition members recommended that OSHA avoid a broad standard that is generally applicable to all industries, and instead pursue a flexible approach that accommodates the unique needs of the wide variety of workplaces to which it would apply.

The Association also joined its colleagues in expressing concern about the potential inclusion of paid-leave provisions, pointing out that in a transient industry such as construction, the impact of these types of provisions would be particularly burdensome and unworkable. One additional provision of concern would be the inclusion of quarantine requirements that do not consider critical infrastructure employees.

Ultimately, the group conveyed it understood that OSHA is considering whether an ETS is warranted at this time to address the pandemic pursuant to the President’s executive order. The Coalition stated that should OSHA choose to pursue an ETS, it questions whether an ETS is justified at this time – underscoring that the standard is only appropriate where employees are exposed to grave danger and it is necessary to protect employees from such danger.