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KH Workplace Update

Date: Dec 07, 2011

DOT Rulemaking on the Use of Mobile Phones by CMV Drivers

On December 2, two DOT agencies, the Federal Motor Carrier Safety Administration and the Pipeline and Hazardous Materials Safety Administration, issued a final rule, effective January 3, 2012, that will significantly restrict, but will not ban, the use of hand-held mobile phones by drivers of commercial motor vehicles (CMVs) while on the road. Section 392.82(a) does state:

  1. No driver shall use a hand-held mobile telephone while driving a CMV [emphasis added].
  2. No motor carrier shall allow or require its drivers to use a hand-held mobile telephone while driving a CMV.

However, the phrase "use a hand-held mobile telephone" is a defined phrase that means:

  1. Using at least one hand to hold a mobile telephone to conduct a voice communication;
  2. Dialing or answering a mobile telephone by pressing more than a single button, or
  3. Reaching for a mobile telephone in a manner that requires a driver to maneuver so that he or she is no longer in a seated driving position, [properly] restrained by a seat belt ...

Furthermore, the term "driving" is defined to mean operating a CMV on a highway, including temporarily becoming stationery because of traffic or a traffic control device. But "driving" does not include operating a CMV when the driver has moved the vehicle to the side of, or off, a highway and stopped in a location where the vehicle can safely remain stationary.

Violations of this rule will subject the driver and motor carrier to maximum civil fines of $2,750 and $11,000, respectively. In addition, drivers who violate this rule may be disqualified from operating CMVs. The following FMCSA statement is likely to create serious concern among motor carriers: "The employer will generally be held accountable if the employee was doing his or her job, carrying out company business, or otherwise acting on the employer's behalf when the violation occurred[,]" even if the employee's action was "in violation of the employer's policy." From a risk-management perspective, the combined effect of the relevant considerations -- the quoted DOT enforcement posture, the magnitude of the potential fines, the potential for driver disqualification, insurance carrier policies, and potential tort liability -- seems likely to drive employers to install and drivers to push for the installation of hands-free mobile phones in CMVs.

OSHA Rulemaking – The GHS Amendment to the OSHA HazCom Standard (HCS)

OSHA sent this final rule to OMB for review on October 25, 2011. This rule would incorporate OSHA's version of the Globally Harmonized System for Chemical Classification and Labeling (GHS) into the OSHA HazCom Standard (HCS). This specification rule would never have seen the light of day in the U.S., but for the E.U. adopting its various chemical control directives and driving the GHS through the UN Committee responsible for its adoption. Given the broad industry support for this rule, and statements attributed to OMB's Cass Sunstein that this rule is a model for federal agency rulemaking that would contribute approximately $500 million per year to the U.S. economy, the OMB review should have been a slam dunk. However, willing to look a gift horse in the mouth, OSHA has apparently insisted on including a hazard category, unique to the U.S., of "unclassified hazards" for chemicals that it either (1) now views as hazardous chemicals, but for some reason is unable or unwilling to objectively define the hazard of concern, or (2) at some time in the future decides to identify as presenting a new chemical hazard-possibly when the UN Committee issues the 4th or later editions of the GHS with additional hazard classifications.

OSHA proposed to define the term "unclassified hazard" to mean "a chemical for which there is scientific evidence identified during the classification process that it may pose an adverse physical or health effect when present in a workplace under normal conditions of use or in a foreseeable emergency," but not one of the hazard classifications recognized by the current edition of the GHS. The category of chemicals that OSHA currently views as hazardous and would place in the "unclassified hazards" category is combustible dust, which is the subject of a comprehensive OSHA National Emphasis Program (NEP) and extensive NFPA standards activities. If, after over four years of experience under the NEP, OSHA is unable to specify the test procedures and results that determine whether a material is a combustible dust, then coverage of combustible dust under the HCS seems inappropriate.

In any event, it clearly seems inappropriate to include, in the GHS Amendment to the HCS, an amorphous category of "unclassified hazards" to be identified and defined in the future. If, after over 25 years of experience with the HCS, and hundreds of years of industrial hygiene experience, OSHA has not been able to identify and define a chemical hazard with objective and repeatable test procedures, there is certainly sufficient question as to whether it is a unique hazard that merits recognition under the HCS. The other fundamental flaw in the use of an unclassified hazards category is that once OSHA declares the existence of a new unclassified hazard, that characterization goes into effect immediately. There is no legally-established phase-in process for adding that hazard to the hazard determination process, providing the required training or phasing out distribution of containers with the no-longer-compliant labeling. It is also questionable whether the proposed period of ninety days for updating MSDS/SDS and container labels would be adequate.

If you have any questions or we may be of assistance regarding these issues, please contact Lawrence P. Halprin (halprin@khlaw.com or 202-434-4177) or David G. Sarvadi (sarvadi@khlaw.com or 202-434-4249).