OPMCA Members,

I wanted to let you all know that I have accepted another opportunity and my last day at OPMCA will be Friday, Oct. 22nd. Over the last five years, I have truly enjoyed getting to serve this association and work alongside so many of you. I have had nothing but a positive experience here and will miss it greatly as I move on.

Sincerely,

Hannah May

At the beginning of October, EMA joined NACS, NATSO and SIGMA in a letter to OSHA Acting Assistant Secretary Jim Frederick concerning questions in response to President Biden’s executive order (EO) directing businesses with more than 100 employees to either require workers to be vaccinated against COVID-19 or produce a negative COVID-19 test weekly. The Emergency Temporary Standard (ETS) may complicate already fragile labor markets and create challenges for many businesses that are currently struggling to remain open. The groups urged OSHA to address the specific questions we raised in the ETS or forthcoming guidance, and to provide clear and complete guidance to employers, so they know what OSHA expects.

Congress continues to wrestle with ways to pass three major legislative items: (1) the bipartisan Senate-passed $1.2 trillion infrastructure bill (Infrastructure Investment and Jobs Act); (2) a partisan reconciliation measure totaling roughly $3.5 trillion; and (3) increasing the debt ceiling before October 18.

Last week, the Senate reached a tentative solution to the debt ceiling crisis, with Senate Minority Leader Mitch McConnell (R-KY) agreeing to allow Democrats to pass a debt ceiling increase through mid-December. This gives Democrats more time to negotiate over the reconciliation package and infrastructure package, but all but guarantees that the debt ceiling debate will pick up again in mid-December.

Further, on September 30, Congress passed a short-term continuing resolution to extend fiscal year 2021 funding levels until December 3. Extension of the Highway Trust Fund remained in the balance on October 1 as the House originally planned to pass the bipartisan infrastructure bill (which extends the Highway Trust Fund and other surface transportation measures) but could not secure the needed votes. Therefore, Congress passed a short-term extension for surface transportation until October 30, 2021. Congress now faces a “soft” end of October deadline to pass the bipartisan infrastructure package, which would also provide a multiyear surface transportation authorization.

The legislative challenges facing Congress today do impact the likelihood that a $3.5 trillion reconciliation will fail. Questions remain as to how a reduced topline spending amount for reconciliation will impact the proposed tax increases, and if so, what tax proposals will change and by how much. The reality of a reduced reconciliation package provides opportunity to place pressure on certain tax increase to also be compressed (or eliminated). It is very likely that any passable reconciliation bill will cost far less than $3.5 trillion due to pressure from moderate Senators Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ). Sen. Manchin is broadly in line with most House Democrats on tax policy, however, favoring raising the corporate rate to 25 percent (compared to House Democrats’ goal of 26.5%); agreeing on raising capital gains to 25%; and agreeing on restoring the top marginal income tax rate to 39.5%.

The U.S. EPA together with engine manufacturers have come to an agreement on a software bypass patch that will prevent heavy duty diesel engines from shutting down automatically due to faulty DEF fluid sensors. The software bypass is needed due to the current COVID induced worldwide shortage of microchips needed to manufacture DEF sensor replacements. The sensors are designed to illuminate indicator lamps inside the cab at three intervals to signal when DEF level is; “low”; “empty” and “empty and ignored”. The third warning light reduces power in the engine to a maximum 5 mph until DEF levels are restored or the faulty sensor replaced. The issue is important to energy marketers because DEF sensors, which are currently unavailable in the marketplace must be replaced on a regular maintenance schedule. Without the software bypass patch, cargo tank vehicle engines with a faulty sensor will not operate and must be taken out of service.

EMA worked closely with EPA on this issue since the problem was first reported. The software bypass is a temporary fix until new sensors are made available. The bypass is only available to vehicle owners after the DEF sensor fault light indicator signals the first of three warnings before the engine is shutdown. Software patches will not be made available if no sensor lamp is illuminated. The computer bypass will be made available at heavy duty truck dealers and service centers. Since there are many different types of heavy-duty diesel engines, manufacturers must create a software bypass for each one. According to the EPA, engine manufacturers have already released many software bypasses to dealers and service centers and is expected to release the rest before the end of October. Energy marketers should contact their dealer/service center to see if the correct software patch for their vehicles is available. Once the microchip shortage is resolved and DEF sensors are readily available again, the EPA will establish guidelines for removal of DEF bypass patches. Contact Mark Morgan, EMA Regulatory Counsel with questions or concerns at markmorgan@verizon.net.

The Federal Motor Carrier Safety Administration (FMCSA) issued a final rule last week that will make it easier for CDL drivers to be pulled out of service by state traffic enforcement officers and lose driving privileges. The rule is important to energy marketers because it means employers must be diligent about regularly checking driver drug and alcohol violations and ensuring they complete their return to duty requirements before driving again. Under FMCSA regulations, CDL drivers who violate federal drug and alcohol requirements are prohibited from driving a commercial motor vehicle (CMV) until the driver satisfies all return to duty requirements (counseling, testing, etc.). The FMCSA requires employers to use the agency’s electronic online Drug and Alcohol Clearinghouse (Clearinghouse) to identify if a driver is prohibited from driving due to outstanding drug and alcohol violations before hiring and each year after employment begins.

SDLAs are only required to access and use the Clearinghouse to check for drug and alcohol violations when issuing or renewing CDL licenses. However, they are not required to do so any other time. The new rule now requires SDLAs to check the Clearinghouse information to identify current CDL drivers with drug and alcohol violations who have not complied with FMCSA return to duty requirements but still operating a CMV. Moreover, the new rule requires SDLAs to remove CDL privileges from a driver’s license within 60 days of learning of an outstanding drug and alcohol violation. This means that CDL drivers with outstanding violations (including refusal to test) who are stopped by state traffic enforcement officers or at roadside inspections, will now be identified and removed from service by a simple license check. The FMCSA is allowing states to voluntarily comply with the new rule beginning November 8, 2021. However, all states must comply no later than November 18, 2024.