Among few highlights from the regulatory world last week other than one problematic court decision previously noted, the National Labor Relations Board (NLRB) resurrected a union election process rule that had been vacated for want of a quorum. The Department of Transportation (DOT) took two interesting steps – moving forward with new technology for light vehicles and withdrawing a final rule from review by the Office of Management and Budget (OMB) and resubmitting it. OMB, for its part, did not provide grist for this mill – completing review of no economically significant rules.
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NLRB Election Rule Resurrection: The published a new Representation – Case Procedures proposed rule in the February 6, 2014, edition of the Federal Register. The previous version of the posting rule was vacated by the United States District Court for the District of Columbia because the NLRB lacked a quorum when it issued the final rule. Although the NLRB initially appealed that ruling, it sought dismissal of that appeal and the district court’s decision became final; the NLRB subsequently rescinded the vacated rule.
Now that the NLRB has a quorum, it has begun the process anew, with virtually the same rule – and it is entirely within its rights to do so. The preamble reflects this history, updates statistics, and substitutes dissents and responses, although much of the preamble is reprinted almost verbatim from the June 2011 proposed rule. A more specific request for comments on employee privacy issues has been added in connection with the voter list proposals.
► The NLRB avers that it “incorporates by reference” the previous docket when it means that it is reopening that docket – Docket NLRB-2011-0002 should sound familiar, it already has 65,960 comments and the NLRB avers that all prior comments will be considered as part of the regulatory record for this proposed rule. Comments are due April 7, 2014, and comments replying to the comments (a good use of discretion) are due April 14, 2014, and commenters should not rest on their laurels.
► The NLRB’s candor is appreciated: the preamble provides a clear statement of the contentious litigation underlying the proposal. The substance may evoke heated debate, but the NLRB tries to follow the procedures dictated by the Administrative Procedure Act (APA) and that deserves appreciation.
Auto Auto Communications: Much has been made of the requirement for rearview mirrors and cameras in automobiles and light trucks, but the DOT’s National Highway Traffic Safety Administration (NHTSA) also recently announced that it will begin proceedings on enabling vehicle-to-vehicle (V2V) communication technology, theoretically to avoid many collisions by exchanging speed and position information directly (DOT likes to call them “Here I am! messages”), without the human interface, and theoretically permitting each vehicle to take limited evasive action. Optional equipment in some vehicles already uses technology to avoid some collisions, and the announcement (though no more) is the first step toward making the technology available as optional equipment.
► DOT has a long and complicated relationship with the auto industry and this early step supports a long term change, perhaps reaching autonomous vehicles. Much study and much negotiation will follow.
Lithium Batteries: Although there may be no linkage, the recent remand of the DOT Pipeline and Hazardous Materials Safety Administration (PHMSA) fuel cell rule has been followed by DOT’s withdrawal of a long running Hazardous Materials: Revisions to Requirements for the Transportation of Lithium Batteries final rule from review by OMB’s Office of Information and Regulatory Affairs (OIRA). The final rule was submitted for review October 10, 2010 – more than three years ago, and the February 3, 2014, withdrawal was swiftly followed (if not currently submitted) new final rule.
► Further work on harmonizing DOT regulations with international standards may be a good substantive reason for the withdrawal and submission, but one would hope that the cause is more than just cleaning up OIRA’s time tracking numbers. Unfortunately, no public reason has been given.