Industrials Regulatory News and Trends

Welcome to Industrials Regulatory News and Trends. In this regular bulletin, DLA Piper lawyers provide concise updates on key developments in the industrials sector to help you navigate the ever-changing business, legal and regulatory landscape.

Just months after his Senate confirmation, head of NHTSA will leave the agency. On August 12, the National Highway Traffic Safety Administration announced that its administrator, Steven Cliff, is stepping down to return to the California Air Resources Board as its executive officer. Among other things, Cliff has overseen NHTSA’s efforts to reduce the sharply increased rates of highway traffic deaths and to significantly boost vehicle fuel-economy requirements. Last October, President Joe Biden nominated Cliff, formerly NHTSA’s deputy administrator, to be administrator, and he was confirmed by the US Senate in May 2022. US Transportation Secretary Pete Buttigieg said that the agency’s chief counsel, Ann Carlson, will assume Cliff's duties in an interim capacity on his departure.

California rejects bill to limit plastic packaging in online shipping. On August 11, the California state legislature decided not to go forward with a bill that would have required e-commerce shippers to reduce the amount of single-use plastic packaging added to online orders. The legislature also failed to pass a similar bill last year. Environmental advocates are concerned that single-use plastic packaging – including shipping envelopes, air pillows, bubble wrap, and plastic foam – becomes waste immediately after a package is opened. They note that e-commerce businesses in the United States generated 601.3 million pounds of plastic packaging waste in 2020 alone. California already took a major step to reduce the use of plastics by passing a law in June that requires producers to reduce single-use plastics packaging (see the item immediately below) by at least 25 percent, by both weight and height, by 2032. 

Here's a how-to for complying with California’s new plastics statute. On August 18, Plastics Today magazine, in an extended analysis of California’s new state law governing the use of plastics and the need to reduce non-recyclable single-use packaging materials, gave five suggested guidelines for companies that use plastics in that state. The bill is SB 54, the Plastic Pollution Prevention and Packaging Producer Responsibility Act. The five guidelines are that companies should immediately assess the size and value of their business in California; that, if that business in that state is significant, they should work on national solutions; that they should work closely with their customers, suppliers, trade associations, and legal advisers to determine which of their products fall into the California specifications today and which will do so over the next 10 years; that they should ensure that they have the ability to prove the recyclability of the materials they use; and that they should act now rather than later. Also see our alert on this act, a major addition to the suite of plastic-focused laws.     

Inflation Reduction Act includes major expansion of incentives for clean energy technologies.Authorizing almost $370 billion in clean energy and decarbonization expenditures over 10 years – the largest investment in addressing climate change in the nation’s history, and the first major federal environmental law in more than 30 years – the historic IRA also seeks to enhance US energy security and spur the development of a robust domestic energy production and storage supply chain. For a detailed description and analysis of the IRA’s extensive clean energy provisions, please see our alert Clean energy provisions of the IRA. For details on the IRA’s additional environmental provisions, see The historic Inflation Reduction Act makes significant changes to federal environmental law and programs.  

Chemical manufacturers report shipping problems, call for federal solutions. On August 18, the American Chemistry Council reported that major transportation-related supply chain problems are having stubborn impacts on US manufacturing operations and the economy. Manufacturers throughout the supply chain, the Council said, are struggling to fill orders and find alternative means of delivering goods, losing customers, facing higher costs, and being forced to stockpile inventory. Earlier this month, the Council called on Congress to pass the Freight Rail Shipping Fair Market Act and asked the Surface Transportation Board to adopt certain regulatory reforms, among them reciprocal switching. The group is also urging Congress to pass legislation to improve truck capacity by increasing the permitted Gross Vehicle Weight on federal interstate highways, and it is asking the Federal Maritime Commission to implement key provisions of the newly adopted Ocean Shipping Reform Act.

US appeals court upholds FCC’s reallocation of a key spectrum block. On August 12, the US Court of Appeals for the DC Circuit turned down a legal challenge to a 2020 decision by the Federal Communications Commission to reassign the majority of a key band of spectrum previously set aside for auto safety communications and applications, in order to allow that spectrum to be used for increasing numbers of wireless devices. The Intelligent Transportation Society of America and the American Association of State Highway and Transportation Officials challenged the FCC reallocation, seeking to keep the full 5.9 GHz spectrum band dedicated to vehicle and traffic safety communications. Where widely deployed, safety communications between vehicles and between vehicles and infrastructure or other road users (V2X) promise substantial vehicle crash reductions and other traffic safety and management benefits. Due to a variety of factors, however, deployment of such technology in vehicles in the US has been very limited and substantially delayed. Subject to further agency review, the FCC decision maintained the remainder of the band for potential vehicle safety uses. In a unanimous panel decision, the court found that the FCC had acted within its authority and upheld the FCC’s decision to reallocate the spectrum to accommodate growing demand for WiFi and associated uses and devices.  

EPA once again proposes changes to its risk management program. The EPA on August 19 renewed an effort to revise its 30-year-old risk management program for chemical manufacturing and handling facilities. The new proposed regulations are reported by the EPA to have the goal of protecting workers and vulnerable communities from chemical accidents and would especially benefit those living near facilities that handle particularly dangerous chemicals and have high accident rates, the EPA said. The EPA completed a similar regulation in the waning months of former President Barack Obama’s Administration, but the rule was revoked in the Trump Administration. The new proposal would require facilities to develop procedures for informing the public about accidental releases of chemicals and require local responders to be notified of accidents and chemical releases. Additionally, third-party audits would be required following significant accidents at high-risk facilities.