The Employee Rights Act was reintroduced in both the House and Senate this month by Rep. Allen (R-GA) and Senator Scott (R-SC), proposing several changes to the National Labor Relations Act. It was previously introduced in 2022 under the 117th Congress but did not advance beyond its introduction.

The proposed changes mostly pertain to union activities, collective bargaining, and clarifying the joint-employer standard. However, the bill would also amend the definition of “employee” under the Fair Labor Standards Act of 1938 to specify the use of “usual common law rules.” The common law test assesses several factors to determine worker classification, such as the extent of an employer’s control over an individual’s work, degree of supervision, and skills required for the work.

The National Labor Relations Board’s most recent interpretation of the common law test places a heavy emphasis on a worker’s “entrepreneurial opportunity,” which increases flexibility for independent contractor classification. In December 2021, NLRB requested briefs in a case pertaining to classification standards. Specifically, NLRB asked whether it should adhere to the current standard (established in 2019) or return to the 2014 standard implemented under the Obama Administration, which considered the totality of 10 individual factors and de-emphasized entrepreneurial considerations.

A joint letter sent by a variety of industry supporters, including the Associated Builders and Contractors, National Association of Manufacturers, and U.S. Chamber of Commerce, stressed the need for U.S. labor laws to adapt to today’s economy and protect workers. Sean Redmond, Vice President of Labor Policy at the U.S. Chamber of Commerce, described the bill as standing in “stark contrast” to the Protecting the Right to Organize Act, which would amend the National Labor Relations Act’s definition of “employee” to incorporate the ABC test, among other provisions.

S. 1201, the Senate Employee Rights Act, has 15 Republican cosponsors and was referred to the Senate Committee on Health, Education, Labor, and Pensions. H.R. 2700, the House companion legislation, has 21 Republican cosponsors and was referred to the House Committee on Education and the Workforce.

This month, the National Highway Traffic Safety Administration issued an advance notice of proposed rulemaking seeking input on the benefits, costs, and other impacts of side underride guards installed on new trailers and semitrailers. The ANPRM summarizes a report titled, ‘‘Side Impact Guards for Combination Truck Trailers: CostBenefit Analysis,” completed by NHTSA in 2022 to analyze the effects and costs of potential side under guard requirements.

The ANPRM seeks to fulfill a Bipartisan Infrastructure Law mandate directing the U.S. Department of Transportation to research side underride guards to better understand their effectiveness and any impacts on intermodal equipment, freight mobility, and freight capacity associated with installing side underride guards on new trailers and semitrailers.

According to NHTSA, equipping all new trailers with side underride guards would save 17.2 lives and prevent 69 serious injuries annually. NHTSA estimates that a side underride requirement would increase the cost per trailer by approximately $3,740 to $4,630. Such a requirement would apply to 260,000 new trailers and semitrailers sold annually, totaling an annual cost increase between $970 million to $1.2 billion. NHTSA’s estimations do not include any potential effects of side underride guards on port and loading dock operations and freight capacity, or on increased greenhouse gases and other pollutants resulting from increased fuel consumption due to the weight of the side underride guard.

Among other topics, NHTSA seeks comments that address other benefits it failed to consider that could justify a mandate for side underride guards, the effects of side underride guards on trailer and semitrailer operations, and the costs incurred to make changes to new trailers to incorporate side underride guards. Additionally, NHTSA requests information on the effects of side underride guards on intermodal equipment, freight mobility, freight capacity, and port operations. Comments are due by June 20.

Also this month, NHTSA announced the 16 members of its Advisory Committee on Underride Protection, which will make recommendations to the Secretary of Transportation on safety regulations related to underride crashes. The committee will hold its first meeting on May 25.

The Environmental Protection Agency initiated the third and last phase of its Clean Trucks Plan by issuing a notice of proposed rulemaking to establish stricter greenhouse gas standards for heavy-duty vehicles, including delivery trucks, transit, and trucks used for freight hauling.

The new standards would begin in model year 2028 and become gradually stricter through MY 2032. EPA’s proposed standards would be performance-based, allowing manufacturers to select how they would meet the requirements rather than mandating specific technology to meet the standards. EPA projected that the industry could meet the proposed requirements through: 50 percent zero emission vehicles for vocational vehicles in MY 2032; 34 percent zero emission vehicles for day cab tractors in MY 2032; and 25 percent zero emission vehicles for sleeper cab tractors in MY 2032.

EPA last revised GHG standards for heavy-duty vehicles in the 2016 GHG Emissions and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles Phase 2 rule, which applied to vehicles in MY 2021 through MY 2027. However, EPA now proposes revising the 2016 rule to set more stringent MY 2027 standards. The American Trucking Association spoke out against such changes, stating that “whimsical changes of mind from year to year” prevent the industry from adequately planning and investing in necessary technologies. EPA seeks comments on its proposal as well as feedback on potential heavy-duty GHG standards beginning in MY 2033 through 2035 that are progressively stricter than the MY 2032 standard. Comments are due by June 16.

On April 27, the Senate passed a resolution providing for congressional disapproval of the EPA’s December 2022 final rule, titled “Control of Air Pollution from New Motor Vehicles: Heavy-Duty Engine and Vehicle Standards,” which set more stringent nitrogen emission standards for trucks beginning in MY 2027. The resolution passed by a 50-49 vote. If passed by both chambers, the resolution would prevent the final rule from taking effect. However, President Biden is expected to veto the resolution if it advances to his desk. The resolution received industry support from the Owner-Operator Independent Drivers Association, Truckload Carriers Association, and ATA.

Also this month, EPA granted waivers of preemption for four California Air Resource Board regulations that would adopt new emission standards for heavy-duty vehicles in the state of California. The waivers will allow CARB to move forward with its Heavy-duty Vehicle and Engine Warranty Regulations, which extended the emission warranty periods for heavy-duty vehicle engines beginning in model year 2022 and the following years in addition to diesel vehicles with gross weights exceeding 14,000 pounds; the Advanced Clean Trucks Regulation, which required that manufacturers produce and sell increasing percentages of zero emission trucks and chassis; the Zero Emission Airport Shuttle Bus Regulation; and the Zero Emission Powertrain Certification Regulation, which set certification requirements and voluntary emission standards that applied to medium- and heavy-duty zero emission vehicles with 2021 model years and the following years.

In February 2021, Federal Maritime Commission Chair Maffei directed Commissioner Bentzel to examine data issues within the maritime supply chain, catalog the present circumstances for maritime data, and identify key data gaps to develop recommendations for common data standards and definitions.

On April 20, 2023, Commissioner Bentzel released the final report and recommendations of the Maritime Transportation Data Initiative. The report is based, in part, on feedback provided during a series of meetings with 80 representatives from various maritime/intermodal supply chain entities. Upon conclusion of the weekly meetings, the MTDI hosted a data summit to help FMC staff prepare a summation document. According to the report, the biggest takeaway from the MTDI was the need to prepare for future supply chain disruptions and improve uniformity in data sharing.

The final recommendations call for the establishment of the Maritime Transportation Data System to improve transparency, ease of access, and coordination of information. The MTDS recommends that all information be provided through an Application Programming Interface, contain a time and date stamp for each operational event status change, and be publicly accessible for a minimum of three months. The MTDS recommendations direct port authorities to assume a leadership role to coordinate information dissemination between ocean carriers, marine terminal operators, and intermodal rail carrier services providers. Additionally, the MTDS encourages FMC to issue voluntary guidelines on practices that could create a better-coordinated system of services that impact the ability to move cargo through the intermodal system.

The report makes separate recommendations for shippers, ocean carriers, MTOs, and intermodal rail carriers. The MTDS would direct ocean carriers to provide real-time tracking for each segment of a journey into or out of the U.S. and provide real-time estimated arrivals at berth five days before arriving at the terminal they are servicing to provide a standardized earliest receiving date. The MTDS does not direct MTOs to provide new information and, instead, focuses on distinguishing between Open Facing and Closed Facing information. Open Facing information is data made available to the shipping public and would include ERD, information on loading and unloading operations at the berth, terminal on-dock rail schedules, gate restrictions and closures, truck appointment availability and process, and the availability of chassis. Closed Facing information is data that is business confidential and available only to the

transportation customer and would include container availability and status. Intermodal rail carriers carrying over 250,000 intermodal car units that originate under contract from ocean carriers through an MTDS covered port to an inland rail ramp/terminal are recommended to provide Open Facing information on train departures 12 hours in advance of the initiation of loading an intermodal train. Additionally, intermodal rail carriers would provide Closed Facing information on the location of railroad service in transit to an MTDS qualified port or a qualified MTDS inland rail ramp/terminal. Intermodal rail ramps/terminals that are subject to the MTDS would provide information identical to that provided by marine terminals.

Further, the MTDS recommends harmonizing the definitions of detention, demurrage, and ERD. According to the recommendations: detention is “a penalty charge that is assessed, by a carrier, for use of a container, beyond an allocated period of free time, to incentivize the return of the container; ”demurrage is “a penalty charge that is assessed, by a terminal operator terminal, for use of storage at the terminal, beyond an allocated period of free time for pick-up, to incentivize the pick-up of the container from the terminal;” and the ERD “is an actual and estimated event where a carrier provides information to a terminal for publication that the carrier is estimating real-time arrival at a terminal berth within five days.”

FMC is internally reviewing the recommendations and considering how to provide an opportunity for public feedback. Following the public comment period, Commissioner Bentzel expects to present the recommendations to the full Commission.