DOJ axes recent environmental enforcement memos

More than just rules

The order covers not only final and proposed regulations but also “notices of inquiry,” any type of notice of proposed rulemaking, and guidance documents that interpret existing statutes or regulations.

The order will be overseen by the director of the White House Office of Management and Budget (OMB), a position to which Trump has nominated Russ Vought.

OMB wastes no time

The OMB, which must approve most rulemaking activities, has already sent numerous pending rules back to the agencies for review. Among the rules withdrawn on January 21, 2025:

• A proposal to update the new-driver training regulations to address sexual harassment and the safety of women truck drivers and vulnerable road users, such as pedestrians and bicyclists.
• A proposal to amend the Federal Motor Carrier Safety Regulations to account for the use of trucks and buses equipped with automated driving systems.
• A proposal from the Department of Health and Human Services to implement hair testing for federal workers.
• Proposed railroad noise-emission enforcement rules from the Federal Railroad Administration.
• A proposed air-emissions reporting requirement from the Environmental Protection Agency (EPA), as well as proposed EPA standards for emissions from PFAS manufacturing facilities.

In addition, the Occupational Safety and Health Administration withdrew a proposed rule on infectious diseases on January 14 and its COVID-19 healthcare rule on January 15, prior to the inauguration.

President Trump issued a similar regulation freeze upon his 2017 inauguration. Soon after, he announced a “two for one” order requiring agencies to eliminate two regulations for every new one issued.

Heat NEP extended

On January 16, the agency extended its National Emphasis Program (NEP) on outdoor and indoor heat-related hazards. The program was due to expire April 8, 2025. However, OSHA extended it until April 8, 2026. The program (described in CPL 03-00-024) targets over 70 high-risk industries when a heat warning or advisory is issued for a local area. Inspections are also conducted for heat-related fatalities, complaints, and referrals, no matter the industry.

Between April 8, 2022, and December 29, 2024, OSHA:

• Conducted about 7,000 heat-related inspections,
• Issued 60 heat citations for violations of the General Duty Clause, and
• Handed out 1,392 Hazard Alert Letters.

Amputations NEP extended

OSHA argues that employees are frequently injured when working on or around machinery and equipment. This is especially the case with insufficient guarding and/or energy control procedures. For that reason, on November 18, OSHA directed its offices to continue inspections under CPL 03-00-022 until June 30, 2025. That’s the NEP on amputations in manufacturing. It targets industrial and manufacturing workplaces with machinery and equipment that could cause amputations.

Injury/illness recordkeeping directive revised

Effective January 13, OSHA issued CPL 02-00-172. This directive provides enforcement guidance for 29 CFR 1904, which goes over injury and illness recordkeeping and reporting. The latest directive replaces a 20-year-old CPL.

OSHA says the new CPL reflects updated recordkeeping policies. It also incorporates revisions related to exemptions, employee rights, and electronic submissions. These stem from final rules published in 2014, 2016, 2019, and 2023.

Vessels directive revised

On November 13, OSHA published CPL 02-01-066. The directive concerns the agency’s authority over workers not only on vessels but also at facilities on/adjacent to U.S. navigable waters or on the Outer Continental Shelf.

The new directive provides guidance related to towing vessels, marine construction, and personal flotation devices. It supersedes older directives.

List of low-hazard industries revised

On November 14, OSHA issued a memo with a revised table listing “low-hazard industries.” These industries had days away, restricted, or transferred work injury/illness incidence rates in 2023 below the national private sector average. That national average was 1.5 per 100 full-time equivalent workers.

The table is referenced in CPL 02-00-170, which provides enforcement exemptions and limitations as required by Congress. Check out the article, “Is YOUR location immune from OSHA safety inspections?”

Penalty adjustments revised

On January 7, OSHA issued its memo, “2025 Annual Adjustments to OSHA Civil Penalties.” The memo goes over gravity-based penalty amounts for serious violations. While high gravity violations can reach $16,550, low gravity violations are just $7,093. A maximum $16,550 penalty may be proposed if OSHA thinks it’s appropriate to achieve deterrence.

The memo also offers a table of serious-willful penalty reductions for employer size. For example, an employer with 10 or fewer employees may receive an 80 percent reduction.

OSHA coordinates with EPA under new memo

On December 17, OSHA and EPA entered into a memo of understanding to coordinate protections for workers using chemical substances under two laws. Those include the Toxic Substances Control Act (TSCA) and the Occupational Safety and Health Act. Under the memo, OSHA and EPA will share information on chemical-related priorities, risk evaluation, rulemaking, and enforcement activity.

TSCA regulates the use of chemicals more broadly, while the OSH Act regulates health and safety in the workplace. TSCA also covers a wider range of workers than OSHA, such as volunteers, self-employed workers, and some state and local government workers. That means EPA’s findings and worker protection regulations may differ from OSHA’s.

COVID-19 NEP cancelled

On January 16, OSHA tossed its NEP on COVID-19. According to the agency, this enforcement program (DIR 2021-03 (CPL 03) in place since 2021) was cancelled because of:

• A decline in COVID-19 complaints and inspections in high-risk workplaces in the last 12 months; and
• Updated public health guidance indicating the global health emergency has ended.

SST program future unclear

We’re waiting to see if OSHA will post a new Site-Specific Targeting (SST) Program. Its existing one (CPL 02-01-064) expires on February 7, 2025.

Under the SST Program, OSHA selects random targets of non-construction, non-office, non-government workplaces (with 20 or more employees) that are either:

• "High-rate” establishments with the highest rates of injuries/illnesses; or
• “Upward-trending” establishments with rates above the industry’s national average that trended upward in certain years.

Key to remember

The last administration continued to issue a stream of enforcement instructions for its offices and inspectors up to the last week. Of course, the new administration may revisit all enforcement documents.

The importance of CPR and early defibrillation

For every minute a patient is in cardiac arrest, their chances of survival decrease dramatically. When a patient doesn’t have a pulse and isn’t breathing, CPR should be performed until an AED is available. It’s important to note that CPR alone does not restart the heart. CPR is an oxygen circulation procedure. AEDs, on the other hand, are meant for lifesaving intervention.

CPR and early defibrillation are vital components of the emergency medical services (EMS) chain of survival that increases the odds of cardiac patient survival. However, according to the American Heart Association (AHA), even the best CPR can’t provide enough circulation of oxygen to the brain and heart for more than a few minutes. In fact, a patient whose brain is deprived of oxygen for 10 minutes or more seldom recovers.

Signs and symptoms of cardiac compromise

Just like a reliable vehicle, the circulatory system is the human body’s blood transportation system, and the heart is the engine. Amazingly, the heart generates its own electrical impulses, pumping in a regular, rhythmic manner. As with any engine, the heart requires a certain amount of pressure to function and doesn’t work well when clogged with grease or debris. The most common causes of sudden cardiac arrest include a heart attack, electrocution, and asphyxiation — all of which could occur in the workplace. Common signs and symptoms include:

• Chest pain accompanied by a crushing or squeezing sensation,
• Pain that radiates to the jaw or arm,
• Irregular pulse and/or abnormal blood pressure,
• Shortness of breath,
• Cool and sweaty skin,
• Nausea and vomiting, and
• Anxiety or feeling of impending doom.

CPR provides the pressure for the body’s “engine” to oxygen circulating, while an AED provides the electrical impulses to keep the engine pumping.

OSHA requirements regarding CPR

OSHA 1910.151 requires first aid treatment be provided in the absence of an infirmary, clinic, or hospital in near proximity to the workplace used to treat injured employees. This may include assisting a victim of cardiac arrest using CPR or defibrillation.

OSHA requirements for CPR and defibrillation differ considerably. Standards requiring CPR include:

• 1910.146 Permit-required Confined Spaces
• 1910.266 Appendix B: Logging Operations – First Aid and CPR Training
• 1910.269 Electric Power Generation, Transmission, and Distribution
• 1910.410 Qualifications of Dive Team and
• 1926.950 Construction Subpart V, Power Transmission and Distribution

OSHA recommends basic adult CPR refresher training and retesting every year, and first aid training at least once every three years. CPR training include facilitated discussion along with ’hands-on’ skills training that uses mannequins and partner practice.

OSHA requirements regarding AEDs — you might need a prescription

Though OSHA recognizes AEDs as important lifesaving technology that plays a role in treating cardiac arrest, the agency doesn’t currently require their use in the workplace. Instead, OSHA wants employers to assess their own requirements for AEDs as part of their first aid response.

AEDs are considered Class III medical devices which means the Food and Drug Administration (FDA) has some oversight on their use. Almost all AEDs require the purchaser to obtain a prescription from a physician under FDA regulations. The prescription process is meant as a quality control mechanism to ensure AEDs are properly maintained, that all designated responders are properly trained, and assist employers with establishing an emergency response plan for their workplace AED program.

The AHA requires AED operators to also receive CPR training as an “integral part of providing lifesaving aid to people suffering sudden cardiac arrest.” Though easy to use, each AED is slightly different, so training helps users understand the unique traits and supplies for the individual units at their workplace. Additionally, AED users must be trained to understand the signs of a sudden cardiac arrest, when to activate the EMS system, and how to perform CPR.

AEDs are light, portable, easy to use, and inexpensive. They’re best placed near high-hazard areas such as confined spaces, near electrical energy, or in remote work areas. Response time to reach AEDs should be kept within 3–5-minutes.

Training requirements

Many states require or encourage CPR and AED training from nationally recognized organizations. Any AED training should include CPR training. OSHA doesn’t offer first aid or CPR training, nor certify trainers. Training by a nationally recognized organization, such as AHA, the American Red Cross, or National Safety Council is recommended.

Keys to Remember

While OSHA doesn’t currently require the use of AEDs in the workplace, they do expect employers to assess their own AED requirements as part of their first aid response. AED training is required by most states and should include CPR with a hands-on practical component.

What does the standard require?

The OSHA First Aid standard (29 CFR 1910.151) requires trained first aid providers at all workplaces of any size if there is no “infirmary, clinic, or hospital in near proximity to the workplace which is used for the treatment of all injured employees.”

In addition to first aid requirements, several OSHA standards also require training in cardiopulmonary resuscitation (CPR) because sudden cardiac arrest from asphyxiation, electrocution, or exertion may occur. These standards include permit-required confined spaces; logging; diving; and electrical power generation, transmission, and distribution.

First aid trained or first responder?

OSHA requires prompt first aid treatment for injured employees, either by providing for the availability of a trained first aid provider at the worksite, or by ensuring that emergency services are within reasonable proximity of the worksite. Whether the first aid provider is a first responder or is first aid trained is up to you and your risk assessment.

Employees considered first aid trained can provide initial treatment to an injured person until more qualified personnel arrive. First aid trained individuals can triage injuries, control the scene to keep others safe, and call for emergency services when needed. Not all first aid trained employees will feel comfortable performing CPR, using an automated external defibrillator (AED), or splinting a broken bone, however.

First responders, though similar in their role, typically have a higher degree of training than first aid trained individuals. Generally speaking, first responders are those that beat the ambulance to the scene such as firefighters or police officers. These responders can perform rescue services or escalate emergency care as needed, such as performing cardiopulmonary resuscitation (CPR) or controlling severe bleeding.

Who is more vital for handling an emergency at your facility? Both! First aid trained employees have process and facility training that first responders may not. For example, they may be more familiar with chemicals on site or process operations. Therefore, they can navigate facilities to reach injured employees quicker to begin initial treatment. First responders, on the other hand, will have a higher level of training for first aid treatment of more complicated injuries.

What’s considered “near proximity”?

OSHA clarifies in a letter of interpretation (LOI) from March 23, 2007, that, “While the first aid standards do not prescribe a number of minutes, OSHA has long interpreted the term ’near proximity’ to mean that emergency care must be available within no more than 3-4 minutes from the workplace. Medical literature establishes that, for serious injuries such as those involving stopped breathing, cardiac arrest, or uncontrolled bleeding, first aid treatment must be provided within the first few minutes to avoid permanent medical impairment or death. Accordingly, in workplaces where serious accidents such as those involving falls, suffocation, electrocution, or amputation are possible, emergency medical services must be available within 3-4 minutes, if there is no employee on the site who is trained to render first aid.”

Regarding work areas, such as offices, where the possibility of such serious work-related injuries is less likely, a longer response time of up to 15 minutes may be reasonable. OSHA gives employers discretion in determining higher risk areas that may need sooner response times.

Employers choosing to rely on assistance from outside emergency responders as an alternative to providing trained responders must ascertain that emergency medical assistance will be promptly available when an injury occurs.

Training requirements

OSHA doesn’t offer first aid or CPR training, nor certify trainers. Training by a nationally recognized organization, such as the American Heart Association or the American Red Cross is recommended. Successful completion of any first aid training program should include instructor observation of acquired hands-on skills and written performance assessments.

Keys to remember

OSHA 1910.151 requires employers to ensure prompt first aid treatment for injured employees, either by providing for the availability of a trained first aid provider at the worksite, or by ensuring that emergency services are within reasonable proximity of the worksite. Employers should consider the workplace, hazards, workforce, and location when determining whether to have first aid trained employees or first responders for medical aid.

Proposed legislation

Bipartisan legislation has recently been introduced in the House that would require businesses to provide restroom access to truckers who are loading or delivering cargo at their warehouses, manufacturers, distribution centers, retailers, and ports.

Supported by leading organizations in the trucking industry, the Trucker Bathroom Access Act (H.R. 9592) was introduced on Dec. 15, 2022. The bill requires retailers, warehouses, and other establishments with existing restrooms to provide access to drivers who are loading or delivering cargo. Additionally, operators of ports and marine terminals must provide access for drayage and parking while accessing such restrooms.

This amendment to Title 49 would exempt some employers from the bill including filling and service stations, and restaurants 800-square feet or smaller with restrooms intended for employee use only. The bill doesn’t require employers to construct new restrooms but to give truck drivers the same access as employees or customers.

Your restroom availability affects their health

Commercial truckers and delivery drivers are the lifeline of our supply chain of supplies, products, and consumables. Working tirelessly all hours, during holidays and weekends, and throughout the pandemic, they continue to deliver critical food and emergency supplies to companies everywhere. Employers have the privilege of demonstrating gratitude to truckers and delivery drivers with a positive work environment.

The benefits of allowing truckers and delivery drivers the convenience and safety of readily available, sanitary restroom facilities are plenty. They’re able to rest and reset when necessary, which keeps them and others safer on the roads. Equally important, restroom availability prevents drivers from having to search for available facilities elsewhere, allowing them to keep a timely delivery schedule, limit supply chain delays, and ultimately lower costs for employers and customers.

Keys to remember

The proposed Trucker Bathroom Access Act will require retailers, warehouses, and other establishments with existing restrooms to provide access to truckers and delivery drivers who are loading or delivering cargo. Access to restrooms keeps them refreshed and ready to deliver essential supplies to companies across the country.

The basics of logging exemptions

To be able to use this logging exemption in 395.1(e)(1), the driver must:

• Stay within 150 air-miles of the work reporting location for the day (draw a 150 air-mile radius circle around the work reporting location for the day — the driver must stay within this circle),
• Be back to — and released from — the work reporting location for his/her 8- or 10-hour break within 14 hours, and
• Include the starting and ending times for the day and the total hours on duty on the time record for the day.

The company must retain the time record and have it available for inspection for six months.

What if the driver goes too far or works too many hours?

If the driver cannot meet the terms of the exemption (he or she goes too far or works too many hours), the driver must complete a regular driver’s log for the day as soon as the exemption no longer applies.

If the driver has had to complete a log 8 or fewer days out of the last 30 days, the driver can use a paper log for the day. If the driver had to complete a log more than 8 days out of the last 30 days, the driver needs to use an electronic log for the day (unless one of the ELD exemptions applies, such as operating a vehicle older than model year 2000).

30-minute break exemption

When a property-carrying driver is operating under the 150 air-mile exemption, the driver is also exempt from having to take the required 30-minute break (see 395.3(a)(3)(ii)).

If the driver began the day as a 150 air-mile driver and has driven more than 8 consecutive hours without a break, and something unexpected happens and the driver can no longer use the 150 air-mile exemption, the driver must stop and immediately take the 30-minute break as well as start logging. If the driver went outside of the 150 air-mile area before the driver had 8 hours of driving without a break from driving, the driver would be expected to take the break at the appropriate time.

Common myths

Here are some of the common myths and misunderstandings about the 150 air-mile exemption:

• The driver must have the time records in the vehicle. Myth. The driver simply needs to explain to an officer during a roadside inspection that he/she does not have logs due to operating under the 150 air-mile exemption and that the required time records are back at the carrier’s office (just telling the officer, “I don’t have any logs” will lead to a violation, so the driver needs to know to provide the full explanation).
• The driver must log the previous seven days if he/she had been using this exemption and suddenly can’t. Myth. If the driver cannot use the exemption on one particular day, that is the only day the driver must use a regular log (either paper or electronic).
• Passenger-carrying drivers and drivers hauling hazardous materials cannot use this exemption. Myth. There are no restrictions on the use of this exemption, so any commercial driver can use it.
• A driver that crosses state lines cannot use this exemption. Myth. As this exemption appears in the Federal Motor Carrier Administration (FMCSA) regulations, it can be used by interstate drivers.
• Only drivers that operate out of a “company terminal” can use the 150 air-mile exemption. Myth. As long as the driver makes it back to the work reporting location for the day within the appropriate number of hours, the driver can use the exemption.
• Drivers that move from one jobsite to another every few weeks cannot use this exemption. Myth. If a driver that normally uses this exemption switches work reporting locations, the day the driver switches work reporting locations is the only day the driver cannot use the exemption.
• Drivers covered by this exemption are also exempt from the driver qualification (licensing and medical cards), driving, and vehicle inspection requirements. Myth. The only rules the driver is exempt from are the logging requirement in 395.8 and the 30-minute break requirement in 395.3.
• The driver cannot drive more than 150 miles for the day. Myth. The driver can drive as many miles as he/she wants to or needs to, as long as the driver stays within the 150 air-mile radius circle and gets back to the work reporting location within the appropriate number of hours.
• If a 150 air-mile driver gets into a vehicle with an ELD, the driver must use it. Myth. The carrier can have the driver log in and have the driver entered into the system as an “exempt driver,” or the carrier can request that the driver not log into the device and then attach a comment to the unassigned driving time generated by the driver’s movements. The comment would need to explain that the driver using the vehicle was a 150 air-mile driver who submitted a time record. It is up to the carrier to decide which option to use. If stopped for a roadside inspection, the driver will need to be able to explain to the inspector that he/she is an exempt driver using the 150 air-mile exemption, so using the electronic log is not required.

What’s different with the ‘150 air-mile non-CDL property-carrying drivers’

The 150 air-mile exemption at 395.1(e)(2) only applies to drivers that: Operate property-carrying vehicles that do not require a CDL to operate, and Stay within the 150 air-miles of their work reporting location.

If the driver stays within the 150 air-mile radius of the work reporting location, and returns to the work reporting location within 14 hours on 5 of the last 7 days, and 16 hours on 2 of the last seven days, the driver is allowed to use a time record in place of a log.

If the driver does not meet the terms of the exception, the driver will need to complete a log for the day. If the driver had to log more than 8 days out of the last 30 days, the driver will need to use an electronic log for the day. All of the other issues discussed above would apply to these drivers as well.

Managing the use

If you have drivers that use these exemptions, you will need to check time records to make sure they are complying with the appropriate time limits. You will also need to check movement records to verify that the drivers using these exemptions are staying within the mandated area (within 150 air-miles of the work reporting location for the day).

If a driver is over the hours limit, or has gone too far, you need to verify that the submitted a log for the day, either paper or electronic, depending on how many days the driver had to log out of the previous 30 days.

Verifying compliance is important

During an audit, if it is discovered that your drivers are using these exemptions incorrectly, you will be cited for not having drivers’ logs when required. Each day this occurred will be another violation, so the fine could be rather large if you are not managing the use of these exemptions!

What is 392.2C?

Section 392.2C is enforcement’s code for “failure to obey traffic control device.” The C stands for control.

The citation appears in the severity table for the Unsafe Driving BASIC (Behavior Analysis and Safety Improvement Category). The violation has been assigned a value of 5 out 10, with 10 being the most severe. The violation is used when calculating both the carrier’s and driver’s Unsafe Driving BASIC scores.

In most instances, the traffic control device is not a signal light or stop or yield sign. Rather, it is the sign that instructs the driver to pull into a weigh station.

Who must pull into a weigh station?

The vehicles that must stop at scales and inspection locations vary from state to state and even from location to location within a state. The “weigh scale ahead” or similar sign should be the driver’s guide.

If the sign reads:

• All vehicles over 16,000 pounds, the driver can safely bypass the scale if under the weight threshold.
• All commercial motor vehicles, the driver should pull in. It is far better to be waived or green lighted through than to be chased down.

Often those who operate commercial vehicles not requiring a commercial driver’s license, such as a large pickup truck or small box truck, mistakenly believe weigh scale inspections are just for larger rigs.

What happens when a driver ignores signage?

If a driver goes past a weigh station without pulling in as directed by a traffic control device, enforcement will pursue and pull over the driver. The officer will then escort the driver back to the weigh station for a roadside inspection.

Even if the driver was honestly confused whether the sign applied to the vehicle, it is too late. And more than likely enforcement’s interest has been piqued. It is highly unlikely the driver will be waived through at this point, and 392.2C will be entered on the roadside inspection report.

Handling violations

CSA’s enforcement model suggests finding the root cause of roadside inspection violations to prevent future occurrences and ultimately improve BASIC scores.

A violation of 392.2C may have one of several root causes, such as:

• Confusion over applicability
• Inattentiveness (missing the sign)
• Running late
• Risky behavior (taking the chance that no one will pursue)
• Concern over other violations discovered once stopped

Whatever the reason, it must be addressed with the driver. Corrective actions range from refresher training to termination. If the driver was trying to avoid enforcement for other reasons (drugs, alcohol, over HOS limits), these other violations need to be addressed accordingly.

Key to remember: Failing to obey a traffic control device will be used in calculation of the CSA Unsafe Driving BASIC scores. Motor carriers should address the root cause of the violation so it does not recur.

‘State and local laws’

A violation of 392.2 is a violation of a local or state law, regulation, or ordinance. These must be obeyed due to 392.2, which reads, “Every commercial motor vehicle must be operated in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is being operated.”

The confusion is that there are no paragraphs in 392.2, so there technically should be no letters following that section. However, to inform the driver, carrier, and the Federal Motor Carrier Safety Administration (FMCSA) what particular state or local law or regulation was involved, FMCSA has developed a system of suffix codes. The letters following “392.2” – the “suffix” — show which state or local law or regulation was involved.

When one of these codes is used, the officer should include a description of the specific violation in the “violation details” area on the actual inspection report. FYI: Summary roadside inspection reports (such as the ones visible in CSA’s SMS) do not show these details.

Not all 392.2 violations are used in CSA

Not all of these state and local law or regulation violations are used by the FMCSA for scoring purposes. The Compliance, Safety, Accountability (CSA) Safety Measurement System (SMS) does not use the 392.2 violations that cannot be tied to crash causation. Here are a couple of examples: 392.2UCR Failure to pay UCR fee and 392.2W Size and weight are not used.

Most common 392.2 violations

Below are the top 10392.2violations written during 2021. All of these violations are safety-related, and therefore used in the CSA SMS for scoring. The BASIC within the SMS the violation is scored in is shown following the violation description.

1. 392.2SLLS2 Speeding 6-10 miles per hour over the speed limit (Unsafe Driving)
2. 392.2C Failure to obey traffic control device (Unsafe Driving)
3. 392.2LV Lane Restriction violation (Unsafe Driving)
4. 392.2SLLS3 Speeding 11-14 miles per hour over the speed limit (Unsafe Driving)
5. 392.2WC Wheel (Mud) flaps missing or defective (Vehicle Maintenance)
6. 392.2SLLS4 Speeding 15 or more miles per hour over the speed limit (Unsafe Driving)
7. 392.2ML Failure to maintain lane (Unsafe Driving)
8. 392.2SLLSWZ Speeding work/construction zone (Unsafe Driving)
9. 392.2PK Unlawfully parking and/or leaving vehicle in the roadway (Unsafe Driving)
10. 392.2FC Following too close (Unsafe Driving)

Key to remember

In general, FMCSA does not write traffic codes. They rely on local and state agencies to do that. When state or local traffic codes are violated, it appears on a roadside inspection report as a violation of 392.2, with a suffix indicating which traffic code was involved.

Here are your options for January/February

Carriers must display one or more of the following to travel through IFTA member jurisdictions for the first two months of 2023:

• A valid 2023 IFTA license and two IFTA decals issued by an IFTA member jurisdiction (you filed on time and received your new credentials in time for 2023); or
• A valid 2022 IFTA license and two IFTA decals from an IFTA member jurisdiction as long as the renewal application has been filed for 2023 (you filed on time but didn’t receive your new credentials in time for 2023); or
• A valid trip permit issued by the IFTA member jurisdiction through which they are operating.

Remember, IFTA license renewals for 2023 must be filed with your base jurisdiction before the end of 2022. The two-month grace period is for display of renewal credentials, not to file your renewal application for those credentials.

For early filers

Carriers renewing credentials may operate with the new 2023 IFTA decals and license two months prior to the effective date shown on the credentials. These carriers must still file a fourth quarter report for 2022, including all operations for that quarter.

Credentials 101: IFTA license and decals

Any person or carrier based in an IFTA member jurisdiction operating a qualified motor vehicle(s) in two or more member jurisdictions is qualified to license under the IFTA program. Applications request basic information about the carrier and its operations and must be submitted with the applicable license and/or decal fees. Fees vary by jurisdiction.

The IFTA license is valid for the period of January 1 through December 31. Each IFTA license must be renewed for the next calendar year. The base jurisdiction will notify its licensees of the renewal requirements.

If the applicant meets all IFTA application requirements, the base jurisdiction will issue the IFTA license and decals. The license contains an account number assigned by the base jurisdiction. This account number is then used for reporting all IFTA activity of the licensee.

The licensee is required to make legible copies of the license and carry one copy in each vehicle. Since January 2019, the license may be carried electronically. Failure to display a copy of the license may subject the vehicle operator to the purchase of a trip permit and/or a citation. Each licensee is issued two vehicle identification decals for each qualified vehicle in the fleet. Decals must be placed on both sides of the vehicle’s cab (passenger and driver side). Failure to display the identification decals in the required locations may subject the vehicle operator to the purchase of a trip permit and a citation.

Key to remember: For seamless operation into the new calendar year, file your IFTA renewal application with your base jurisdiction well before December 31, 2022.

Which date should be on our posters?

In some cases, employers need to display only the latest version of a poster, the one with the most recent revision date. In other cases, multiple versions of a poster will be complaint, and an employer can display either the most recent version or a previous one.

Here are revision dates to look for on the federal postings on your wall:

• Employee Rights Under the Fair Labor Standards Act (FLSA): 04/23
• Employee Rights Under the Family and Medical Leave Act (FMLA): 04/23, 04/16, or 04/13
• Know Your Rights: Workplace Discrimination is Illegal: 06/27/2023
• Employee Rights: Employee Polygraph Protection Act (EPPA): 02/22 or 07/16
• Job Safety and Health: It’s the Law (Occupational Safety and Health Act (OSHA)): 2019 (previous versions also acceptable)
• Your Rights Under USERRA (Uniformed Services Employment and Reemployment Rights Act): 04/2017 (previous versions also acceptable)

Where should posters be displayed?

In addition to displaying the most recent version of a poster, it is important to place the poster in a location where it is easily visible and readily accessible to employees. This could be in a hallway near a common entrance, in a cafeteria or break room, or near a time clock.

In a large building with multiple entrances or break rooms, more than one set of posters may need to be displayed. When a company has multiple buildings on a large corporate campus, posters must be placed in each building where employees are reporting to work.

What happens if I don’t display labor law posters?

If labor law posters are not properly displayed, a company may face a fine or the increased risk of a lawsuit from employees who were not made aware of their rights.

Higher DOL posting penalties took effect on January 15, and the Equal Employment Opportunity Commission (EEOC) is expected to raise the penalty for the Know Your Rights posting soon. The current maximum posting penalties are:

• FMLA: $216 for each separate offense
• Job Safety and Health (OSHA): $16,550 for each separate offense
• EPPA: $26,262 for any violation of the law (including a posting violation)
• Know Your Rights: $680 for each separate offense

The maximum fine is more likely to be levied in cases of willful noncompliance or in conjunction with other penalties.

State and sometimes local postings must also be kept up-to-date. Fines for non-compliance for these posters vary.

Key to remember: Failing to display the correct labor law posters can be a costly mistake. One way to ensure that the right posters are displayed is to check the date on the poster.

The intent of the standard

OSHA’s powered industrial truck (PIT) standard (29 CFR 1910.178) is intended to ensure the safe use of fork trucks, tractors, platform lift trucks, motorized hand trucks, and other specialized industrial trucks powered by electric motors or internal combustion engines. The standard outlines requirements for operational permits and certification.

And, though not specified in the standard itself, PIT operators must be at least 18 years old per federal child labor regulations.

License and certification Q&A

The OSHA PIT standard clearly defines requirements for training and certification. However, some licensing and certification information isn’t as clear. Here are some clarifications:

Q: Who can train, evaluate, and certify PIT operators?

A: OSHA requires in 1910.178(l)(2)(iii) that, “All operator training and evaluation shall be conducted by persons who have the knowledge, training, and experience to train powered industrial truck operators and evaluate their competence.” The OSHA standard doesn’t further define this requirement or set any specific or additional certifications.

Q: Does OSHA require PIT operators to have a valid driver's license?

A: Federal OSHA has no requirement that a forklift operator has a valid motor vehicle driver's license. Some states are more stringent, so check your local and state requirements to confirm.

Q: Does OSHA have regulations that impact an employee’s ability to operate PITs if they’ve received a DUI or suspended license?

A: Because OSHA doesn't require a valid motor vehicle driver's license, the status of that license doesn’t impact PIT operator permitting. Individual states or the employer may have policies that dictate otherwise.

Q: Are PIT drivers required to have their license on them when they are working?

A: Federal OSHA doesn’t require PIT operators to have a license or permit. However, some states such as Michigan do require this. Typically, in states that require a permit or license, the license must be “readily available.” Companies have the option to require the permit or license be carried with the operator.

Q: Are operators required to be trained on each manufacture of PIT model?

A: A June 15, 1999, OSHA letter of interpretation (LOI) clarifies that operators are to be trained and evaluated in the safe operation for the type of truck they’ll be assigned. Operators wouldn’t need additional training for same truck types but would need additional training when truck- or workplace-related training topics are different.

Q: Do PIT operators need to be recertified if they move from one state to another with the same company?

A: In an LOI dated October 1, 1999, OSHA states, "As long as the employer has a reasonable basis to believe that the third-party trainer is qualified and has a program that meets the requirements of the standard, it can rely on that trainer to conduct the training and evaluation of employees and can certify that these employees have been trained. However, the employer may need to provide additional training on site-specific or truck-specific matters." This shouldn’t require retraining for the same type of forklift as already certified; however, workplace conditions or other factors of the new work location may require training for forklift operation in the other state(s).

Operator Impairments

In addition to being properly trained and evaluated, OSHA expects employers to ensure physical capabilities. OSHA references the American National Standards Institute (ANSI) Standard B56.1-1969. Section 6 clarifies that, “Operators of powered industrial trucks shall be physically qualified. An examination should be made on an annual basis and include such things as field of vision, hearing, depth perception, and reaction timing."

Employers should consider OSHA PIT regulations and the General Duty Clause, ANSI standards, and the Americans with Disabilities Act (ADA) requirements when evaluating physical qualifications. In short, if a worker demonstrates the visual, auditory, and mental ability to safely operate PITs, he or she is permitted to operate them.

Keys to Remember

OSHA requires employers ensure the safe use of forklifts and other powered industrial vehicles. Employers must ensure operators have the knowledge, skills, and physical ability to safely operate PITs.

Employer responsibility

The employer decides if a prospective trainer has the necessary knowledge, training, and experience to effectively deliver the training and evaluate performance. The trainer’s background might include attending certain courses, but OSHA does not require taking a specific course or obtaining a particular certification. The trainer must also know the regulations, the truck-related topics, and the workplace-related topics.

In addition, a trainer must have experience operating the types of trucks and attachments that trainees will use. A letter of interpretation dated July 23, 2003, noted that the “experience” requirement generally means the trainer has operated the same type of truck. If operators will use attachments, the trainer must have used that type of attachment.

Some employers use more than one trainer, such as one person for the classroom portion and another for the hands-on training and operator evaluation. That’s perfectly acceptable. For related information, see our article Want to provide forklift training in-house? No problem, here's how!

How many citations?

During fiscal year 2024, OSHA issued nearly 2,500 citations under the powered industrial truck standard, many of which relate to operator training. OSHA does not publish the specific paragraphs cited, but we have that data from several years ago. Of the thousands of 1910.178 citations, OSHA issued only one citation under the trainer qualification paragraph. Very likely, the trainer had never used the type of truck or attachment and therefore lacked the required experience.

As noted, however, OSHA frequently issues citations related to operator training. Those include failing to cover all required training topics, or simply an OSHA officer’s observation of unsafe operation, which suggests a training shortfall. Citations for inadequate training could mean that the trainer qualifications were lacking, or that operators simply did not remember their training. Either way, a violation (and therefore a safety hazard) has occurred.

Trainer evaluations

We get a lot of questions on the required qualifications for forklift trainers. As noted, the regulations are somewhat vague and circular. That may be one reason OSHA rarely cites employers for unqualified trainers. However, if operators are not learning, remembering, or following their training, you might need to take a closer look at your operator training and evaluation program – along with a look at the trainer. For related information, see our article Considerations when designing practical training for PITs.

Evaluate your training materials, program, and trainer(s) to ensure that you’re delivering comprehensive training and that operators actually follow their training. If an operator remembers the training but ignores the rules, that’s an operator issue. However, if an operator cannot remember what was covered in training, or if a topic wasn’t covered at all, that’s a trainer or training program issue.

Key to remember: The employer determines whether someone is qualified to train forklift operators. Although OSHA rarely cites for lacking qualifications, OSHA does frequently hold employers responsible for training shortcomings.

OSHA’s announcement on helmets vs. hard hats

OSHA released a Safety and Health Bulletin (SHIB 11-22-2023) on November 22, 2023, detailing the key differences and benefits of using modern safety helmets over traditional hard hats.

And just a few weeks later, in the December 11, 2023 Trade Release, the Agency announced it would now require its inspectors to wear Type II head protection, which is also commonly referred to as safety helmets.

The two main benefits of Type II safety helmets

The November 22, 2023 SHIB discussed two main benefits of choosing modern safety helmets over traditional hard hats -- the construction of materials and the use of chinstraps.

And while OSHA has recognized the benefits of Type II safety helmets, and is actively taking steps to protect its own employees, it’s important to understand that there is not a new requirement for employers to make the switch to safety helmets.

That being said, a growing number of employers have recognized the benefits of added head protection and are choosing to use Type II helmets for their workers. In addition, some clients are starting to contractually require their construction contractors to make the switch as well.

Understanding the different types of head protection

Hard hats will have a Type I or Type II rating on the manufacturer’s sticker. These markings are based on ANSI Z89.1’s impact ratings.

Type I hard hats protect from objects or impacts from the top center area of the hard hat and are often used in work areas with no lateral head impact hazards.

Type II hard hats, on the other hand, offers protection from both top and lateral impacts and objects and is often found on construction job sites or complex general industry settings where workers face multiple head contact exposures.

Hard hats are classified based on their level of voltage protection. See the chart below.

Choosing the right head protection for your employees

Employers should conduct a job hazard analysis and/or a PPE assessment to determine which style hard hat is best for their workers. In general, OSHA recommends the use of Type II safety helmets at the following locations:

1. Construction Sites: For construction sites, especially those with high risks of falling objects and debris, impacts from equipment, or slips, trips, and falls, safety helmets have enhanced impact resistance and additional features that offer superior protection compared to the components and construction of traditional hard hats.

2. Oil and Gas Industry: In these sectors where workers face multiple hazards, including potential exposure to chemicals and severe impacts, safety helmets with additional features can provide comprehensive protection.

3. Working from Heights: For tasks or jobs that involve working from heights, safety helmets offer protection of the entire head and include features that prevent the safety helmet from falling off.

4. Electrical Work: For tasks involving electrical work or proximity to electrical hazards, safety helmets with non-conductive materials (Class G and Class E) provide protection to prevent electrical shocks. However, some traditional hard hats also offer electrical protection.

5. High-Temperature Environments: In high temperatures or where there is exposure to molten materials, safety helmets with advanced heat-resistant properties can provide additional protection to workers.

Key to remember: While there isn’t a new requirement for safety helmets, employers should review their workplace hazards to determine which style of hard hat will best protect their employees.

Choosing the correct year

The NAICS codes get updated every five years, with 2022 as the most current. Adding confusion, different OSHA regulations use different versions of the codes. For example:

• Employers trying to determine if they’re exempt from keeping a 300 Log under 1904.2 must use the 2002 codes.
• Employers trying to determine if they must submit injury data to OSHA by March 2nd must use the 2017 codes (OSHA updated from the 2012 codes as of January 1, 2024).

Searching codes online may default to the 2022 version, and some codes changed. For example, the 1904.41 appendix lists 4529 for “Other general merchandise stores” which covers retail outlets like dollar stores and variety stores. However, searching that code in the 2022 list shows “no result” since that number changed. The 2022 NAICS code for general merchandise stores is 4552, but that code does not appear in OSHA’s appendix. Employers using the 2022 NAICS codes may incorrectly believe their establishment is not on OSHA’s list.

Employers can search older versions of the NAICS codes at https://www.census.gov/naics/ which also indicates whether a particular code has changed in more recent versions.

Choosing the correct code

In addition to using the NAICS list for the correct year, employers must choose the correct code for each establishment. If a location engages in more than one type of business activity, employers must choose only one NAICS code for OSHA recordkeeping. OSHA says to choose the code for the activity that generates the most revenue or has the most employees.

In some cases, employers can divide a single physical location into more than one “establishment” as defined in 1904.46. To split a single location into multiple establishments, all of the following must apply:

• Each establishment represents a distinctly separate business;
• Each business engages in a different economic activity;
• No single NAICS code applies to the joint activities at the establishments; and
• Separate reports are routinely prepared for each establishment on the number of employees, their wages and salaries, sales or receipts, and other business information.

For example, OSHA noted that if an employer operates a construction company at the same physical location as a lumber yard, the employer may consider each business as a separate establishment.

For employers with multiple establishments, the NAICS code for each location should reflect the primary business activity at each establishment. For example, a manufacturing company might have a separate administration office. Using a manufacturing code for the office might not be appropriate, even though it supports the other manufacturing locations. However, NAICS codes starting 5511 for “Management of Companies and Enterprises” might apply.

For example, code 551114 gives examples as follows:

• Centralized administrative offices
• Head offices
• Corporate offices
• District and regional offices
• Subsidiary management offices

That might better describe a corporate administrative office, if the location does not have any warehousing or manufacturing operations. In fact, codes starting 5511 appear on OSHA’s list of establishments under 1904.2 that are exempt from keeping a 300 Log, so applying the correct code could mean that office doesn’t need a 300 Log at all.

Counting employees

Finally, counting employees gets confusing because some OSHA regulations require counting all employees in the company (combining all locations) and others require counting only the employees at each establishment.

• Section 1904.1 allows an exemption from keeping a 300 Log if the entire company has 10 or fewer employees, combining all establishments.
• Section 1904.2 allows an exemption from keeping a 300 Log based on the NAICS code for each location, regardless of the number of employees at the location.
• Section 1904.41 requires establishments in listed NAICS codes to submit injury data to OSHA annually, but only if the establishment (not the entire company) falls within an employee count range. Establishments with fewer than 20 employees need not submit even if the NAICS code appears in OSHA’s list.

Key to remember: NAICS codes update every five years, and employers must use the correct list, which may differ in various regulations.

Applying exemptions

Employers with 10 or fewer employees do not need to maintain a 300 Log, but this exemption counts all employees at all locations. If an employer has three locations, each with four employees, it has more than 10 employees and the size exemption will not apply.

The other exemption is based on each establishment’s North American Industry Classification System (NAICS) code. Employers might have some establishments that must keep a 300 Log and others that do not, like a manufacturing facility that maintains a 300 Log and an administrative office that is exempt.

In some cases, an establishment’s activities fit under more than one NAICS code, like a manufacturing plant with a distribution warehouse. OSHA advises using the code that either generates the most revenue or has the most employees, whichever the employer deems most applicable. Employers should check their workers’ compensation coverage to see which code they use.

For more information, see our article Which NAICS code should you use for OSHA?

Traveling and remote workers

If an employee has a recordable incident while visiting another establishment, the employer must record the case on the 300 Log for the establishment where the incident occurred, even if the employee normally works elsewhere.

However, if an employee has a recordable incident and is not at an establishment (such as traveling), the employer must record the case on the 300 Log for the establishment where the employee normally works.

Remote workers must be linked to a fixed establishment, typically the location from which they are supervised or receive job assignments. Recordable incidents to remote workers must be recorded on the 300 Log of the establishment to which they are linked. Employers also count remote workers as employees of the linked location, even if they work in another state.

Annual summaries

On February 1, each establishment that maintains a 300 Log must post a 300A annual summary for the previous calendar year. This is required even if the location has 10 or fewer employees, and even if the establishment had zero recordable incidents. Employers cannot combine multiple establishments on a 300A (although short-term establishments can be combined).

If some employees split their work time between locations, employers may distribute their hours worked between locations. However, if someone spends only a small amount of time visiting various locations, the employer may count all hours worked at the primary or linked location. Usually, this would not significantly impact the total hours worked for an establishment.

For more information, see our article Completing the 300A: Tips for the mathematically challenged.

OSHA requires a posting a physical copy of the 300A in the workplace until April 30, but employers may also post the summary on a company intranet for remote workers. OSHA does not require sending the 300A to remote workers who never visit the site, although California does require that.

Key to remember: Employers with multiple locations should confirm that the NAICS code for each location is correct, verify that incidents to traveling or remote workers are properly recorded, and ensure that each covered establishment posts a 300A as required.

Total hours worked

Determining the total hours worked probably involves your Human Resources or payroll department. They key is to count only hours worked, not hours paid. Do not include vacation, sick leave, holidays, or other non-working time even if employees were paid for that time. If some employees are not paid the by the hour (such as salaried or commission employees) you can estimate their total hours.

The total hours are used to calculate the Total Recordable Incident Rate (TRIR), or incident rate, which is expressed as a ratio of injuries per 100 workers. For instance, a rate of 2.3 means that for every 100 employees, 2.3 employees had recordable injuries.

However, the incident rate is actually a ratio of injuries per 200,000 hours worked (representing 100 employees working 40 hours per week for 50 weeks). This allows OSHA to compare locations regardless of part-time staff, since the rate depends on hours worked, not on the number of people. This is also why employers don’t count vacation or holiday hours; employees cannot get work-related injuries during those hours.

Key to remember: Correctly calculating your workforce size and total hours worked ensures an accurate 300A summary and incident rate.

Bottles vs. other eyewashes for emergency equipment

The OSHA standard does not provide a great deal of detail on eyewashes for employers. However, where the regulation is silent, OSHA refers employers to the American National Standards Institute (ANSI) standard Z358.1-2009, “Emergency Eyewash and Shower Equipment,” regarding installation, operation, and maintenance of emergency eyewashes. This includes capacity and flushing requirements. The ANSI standard states that an eyewash must deliver 0.4 gallons of flushing fluid per minute for at least 15 minutes.

As such, ANSI says that an eyewash bottle does not meet these criteria; therefore, it can only be used to support eyewashes that do (i.e., plumbed and self-contained units), but cannot replace them.

Capacity of eyewash bottles

The reason for this limitation is that eyewash bottles simply cannot provide the required 15 minutes of flushing. Eyewash bottles typically hold less than a gallon of water, which would supply the user with flushing fluid for approximately 1 minute. Even larger self-contained units (those with bladders) that have a capacity of 5 to 10 gallons would only provide maximum use of about 5 minutes.

In other words, eyewash bottles don’t provide an adequate amount of flushing fluid and cannot be considered a primary means of protection.

Limitations of using eyewash bottles

For this reason, OSHA warns that the use of eyewash bottles should be limited. In a 1986 memorandum to Regional Administrators, the agency states, “In general, squeeze bottles should not be used except where the hazard severity or distance from plumbed eyewash equipment requires personal equipment at work stations for immediate flushing prior to prolonged flushing at a plumbed or self-contained unit.”

In other words, employers can provide eyewash bottles in instances where plumbed or self-contained units can’t reasonably be provided (e.g., an outside yard) in the immediate work area, but only until they can reach a unit which can provide the amount of flushing fluid necessary to flush the eyes for at least 15 minutes.

OSHA expects the employer to determine the level of the potential risk to employees and provide eyewash (and/or shower) protection accordingly. The severity of the hazard(s) involved is a critical consideration when making this determination. In the past, OSHA has said that 1910.151(c)is meant to cover strong acids and alkalis, and the requirement to provide suitable facilities for quick drenching or flushing depends on the exposure and the strength of the hazardous chemical. Chemicals and materials such as household detergents or cleaners, sawdust, metal filings, etc. would not require emergency eyewash (or shower) under the standard.

OSHA enforcement on eyewashes

If an employer determines that an eyewash is needed, then it must meet the provisions set forth in the American National Standards Institute (ANSI) standard Z358.1. The agency uses the ANSI standard as an enforcement tool. This is clarified in a November 1, 2002, Letter of Interpretation, which says, “If OSHA inspects a workplace and finds unsuitable facilities for quick drenching or flushing of the eyes and body, a citation under 29 CFR 1910.151(c)would be issued. When determining whether the eyewash or shower facilities are suitable given the circumstances of a particular worksite, OSHA may refer to the most recent consensus standard regarding eyewash or shower equipment…”

Without the ANSI standard, employers would find it difficult to demonstrate to OSHA exactly how their eyewash and shower units were suitable exclusive to the regulatory language under 1910.151(c) since it’s limited and vague.

Key to remember

Eyewash bottles don’t meet the requirement under 1910.151(c) to provide “suitable” facilities for quick drenching or flushing of the eyes. They cannot be the only eyewash provided in the workplace.