Looking Ahead: It's 2022

Congress returns this week for the second session of the 117th Congress. Depending on their party affiliation, lawmakers are prepared to either advance the majority’s agenda or do their best to disrupt it. In both cases, members of Congress are positioning themselves for the midterm elections. 

Republicans look increasingly likely to take back the House in November. Reclaiming the Senate, however, will be a harder mountain to climb. Although policy tends to move slowly, the narrative (and therefore who is on top) in Washington can change quickly. 

NATSO will monitor and advocate on all issues of interest to its membership in the coming year. 

Here’s a brief look at the top issues that we’re focusing on.

2022 kicked off with the fate of the President’s climate and social spending bill, known as Build Back Better, unknown. 

Just before Congress adjourned for 2021, Sen. Joe Manchin (D-W.Va.), a centrist Democrat whose vote is considered key to moving the legislation, said he would not vote for the measure amid concerns about the “real cost of the bill” and a lack of transparency.  His statement, first made on FOX News,  immediately prompted a slew of news reports that Build Back Better was dead. 

It remains unclear whether Congress will go back to the drawing board or whether lawmakers will move a series of smaller bills carrying the President’s key legislative priorities, as suggested by Sen. Manchin.

The House-passed version of the Build Back Better contained a number of items harmful to NATSO members related to energy policy, including a special carve-out for sustainable aviation fuel, or SAF, and corporate tax increases.

BBB contained a tax credit for SAF that was 25 cents higher than the $1 per gallon biodiesel tax credit. A tax credit for SAF, without parity for other transportation fuels, will hurt the ability to further reduce the carbon footprint of the transportation sector. SAF requires more feedstock, higher energy inputs, and produces less emissions savings than biodiesel and renewable diesel. As such, taxpayers will pay more to realize less environmental benefits.

NATSO anticipates that should the BBB provisions move through smaller bills, any language put forth is unlikely to change from the House-passed version of Build Back Better. NATSO will continue to aggressively advocate for tax parity between biodiesel, renewable diesel and SAF. 

OSHA EMERGENCY TEMPORARY STANDARD:

Managing the coronavirus pandemic and vaccine distribution are bound to remain the top priorities for President Biden in 2022. 

The U.S. Supreme Court is scheduled to hold a special Jan. 7 session to hear arguments on President Joe Biden’s COVID-19 shot-or-test rule for large employers and his separate vaccine mandate for health-care workers. The justices will weigh whether to let the rules take effect in the face of a barrage of legal challenges. 

The justices will hear arguments from business groups and Republican-led states which argue that OSHA exceeded the powers Congress gave the agency and that the federal government lacks constitutional authority to issue such a mandate.

NATSO continues to advocate on this issue to highlight the unique role that the travel center and truckstop industry plays in the supply chain. 

The National Federation of Independent Businesses (NFIB) is leading an employer-lawsuit against OSHA's vaccine mandate. NFIB is joined by a handful of other large industry associations, and NATSO supports the NFIB lawsuit. 

NATSO has been in close contact with these associations on the mandate and subsequent legal strategy and will continue to be as the case proceeds. 

NATSO is currently considering a variety of options to ensure that the courts consider the unique role our industry plays in the supply chain, and the acute impact the vaccine mandate's implementation will have on our ability to hire and retain employees. The mandate's impact on our channel of commerce will percolate throughout the entire supply chain, exacerbating existing problems. NATSO is preserving its ability to engage in actions that could focus exclusively on our industry's issues. 

NATSO will continue to update members as well as provide resources related to the vaccine mandate. 

ELECTRIC VEHICLE CHARGING:

The bipartisan $1.2 trillion Infrastructure Investment and Jobs Act (IIJA), signed into law in November 2021, carved out $7.5 billion to expand the nation’s electric vehicle (EV) charging network.

Some $5 billion will be distributed to the states via the Federal Highway Administration’s (FHWA’s) funding formula. FHWA will distribute the remaining $2.5 billion via a competitive grant program for charging and fueling infrastructure designed to strategically deploy publicly accessible EV charging infrastructure as well as hydrogen, propane, and natural gas fueling infrastructure along designated alternative fuel corridors.

NATSO will continue to work with policymakers to ensure that off-highway fuel retailers can utilize incentive programs to incorporate alternative fuels into their fuel supply, all while competing on a level playing field with other industry stakeholders. 

The IIJA tasks states with developing plans to build out an EV charging network, with dollars ultimately available to both the public and private sector.  The legislation directs the states to prioritize partnerships with the private sector in granting awards and requires state public utility commissions to use their positions to find ways to attract private investment to EV charging stations. 

States already are hashing out the details of their statewide plans. The Biden Administration is acting quickly to deliver guidance on how states can most effectively and efficiently allocate EV charging infrastructure dollars. The U.S. Department of Transportation ultimately must approve state projects before states can receive funds and begin construction.

NATSO will soon file comments with FHWA detailing that the private sector is best positioned to build out a safe and reliable nationwide network of EV charging. NATSO also will keep apprised of state activity to ensure that NATSO members can avail themselves of available grant opportunities as well as to ensure a level playing field for private sector investment in EV charging infrastructure. 

REST AREA COMMERCIALIZATION:

The IIJA maintained the long-standing prohibition against the sale of food or fuel on the Interstate right-of-way. NATSO and like-minded associations successfully ensured that the IIJA did not incorporate provisions that would allow states to unfairly compete with the private sector by installing EV charging stations at rest areas and ensured that locations for alternative fueling must consider the availability of amenities such as food and restrooms.

FHWA in November further clarified for its state Department of Transportation constituents that EV charging stations fall squarely within the prohibition on commercial activities at Interstate rest areas. 

NATSO strongly opposes the installation of EV charging stations at rest areas and thinks states should work with existing exit-based businesses to install electric car charging stations at private businesses.

NATSO anticipates that government agencies and states will continue to pursue avenues for implementing EV charging along the Interstate right-of-way, which would undermine private sector investment in EV charging stations. NATSO and its coalition, which includes gas stations, fuel marketers, blind merchants, convenience stores, hotels, restaurants as well as local and county governments, will continue to engage with federal and state departments of transportation and policymakers on this issue to protect the ban on offering commercial services within the Interstate right-of-way and ensure that the private sector maintains the ability to efficiently build out EV charging networks.  

NATSO and ChargePoint in 2022 also will continue to expand the National Highway Charging Collaborative, a partnership to deploy charging at more than 4,000 travel plazas and fuel stops that serve highway travelers in rural communities. NATSO members in many states, including California, Iowa, Wisconsin and Washington, have installed EV charging stations as a part of this collaboration. 

TOLLING: 

Under the IIJA, the vast majority of federal infrastructure dollars will be distributed to states via the federal funding formula. Because state Departments of Transportation continue to experience dramatic revenue losses amid the COVID-19 pandemic, NATSO anticipates that states will continue to eye tolling as a way to fund infrastructure investments. Chief among them is the Pennsylvania Department of Transportation, which has proposed implementing tolls on bridges in nine counties that carry Interstates 78, 79, 80, 81, 83 and 95. 

NATSO strongly opposes the Pennsylvania bridge tolls and will continue to block these efforts in conjunction with the Alliance for Toll-Free Interstates and other like-minded organizations, such as the Pennsylvania Motor Truck Association. 

RENEWABLE FUEL STANDARD: 

The Environmental Protection Agency (EPA) released in December its proposed renewable volume obligations (RVOs, or blending mandates) under the Renewable Fuel Standard (RFS) for 2021 and 2022.  The agency also reopened the previously finalized 2020 RVOs to propose adjusting downwards the mandates for that year. EPA further proposed denying all outstanding small refinery exemption petitions, which would effectively end that aspect of the RFS program.  

The proposed RVOs are intended to approximate actual RIN generation and renewable fuel blending in 2020 and 2021 (given that the proposal is being issued after the compliance periods have already occurred). In the case of 2020, EPA is taking the unprecedented step of revising previously finalized standards to reflect sharply lower-than-anticipated RIN generation resulting from lower fuel demand at the onset of COVID-19. NATSO will file comments on the proposal with EPA on Feb. 4. 

The proposed RVOs could prompt a flurry of negotiations among biofuels groups, refiners, and fuel marketers with respect to potential legislative changes to fuels and energy policy. Biofuels groups have urged Congress to expressly permit E15 to be sold year-round in all parts of the country. Late last year, some large ethanol producers began exploring the possibility of trading year-round E15 in exchange for changing the point of obligation under the RFS from refiners and importers to position holders at the rack. NATSO opposes any effort to change the point of obligation. 

Previously, NATSO was successful in pushing back against a change to the point of obligation by arguing, among other things, that the price of a RIN is “baked into” refiners’ crack spreads and thus the RFS does not cause economic harm to one segment of the refining industry relative to other segments.

LABOR: 

The Biden Administration has signaled that it will begin the process of changing labor regulations in 2022. The Department of Labor (DOL) plans to propose a rule in April 2022 that will increase the salary level by which executives and managers are exempt from overtime pay requirements. During the Obama Administration, DOL proposed increasing the annual salary threshold from $23,660 to $47,476, but that proposal was stopped by a federal judge. Ultimately, the Trump Administration increased the annual salary threshold to $35,568, which is the current rate.

In addition to the salary threshold, overtime regulations dictate the duties certain employees must perform in order to be exempt from overtime pay. NATSO has previously urged DOL to refrain from changing the so-called “duties test” used to determine whether an employee holds an exempt or non-exempt status and opposed the establishment of multiple salary levels (depending on region, industry, etc.). NATSO will file comments with DOL on any proposed changes to overtime regulations.

The National Labor Relations Board (NLRB) additionally plans to issue a proposed rule in February 2022 to expand the standard for determining whether two businesses are joint employers under the National Labor Relations Act (NLRA). Jointly employing workers results in companies sharing liability for unfair labor practices and is especially difficult in the franchise/franchisee model often utilized by travel centers. 

The Trump Administration finalized a rule in 2020 establishing joint employer status only if the two employers share or co-determine the employees’ essential terms or conditions of employment. The Trump Administration’s final rule rolled back NLRB's 2015 Browning-Ferris decision to broadly define “joint employer” as including businesses with indirect or potential control over other entities.

NATSO has been a vocal opponent of the expanded definition of joint employer, and has supported efforts to restore a reasonable standard for determining joint employment. NATSO will comment on the proposed rule when it is issued.