March 1, 2020 – Safety and Compliance

PHMSA Denies Reconsideration of California Meal and Rest Break Rules Preemption.  The Pipeline and Hazardous Materials Safety Administration has denied a petition for reconsideration of the agency’s determination that California’s meal and rest break requirements are preempted under the Hazardous Materials Transportation Act as applied to drivers of motor vehicles transporting hazardous materials.  85 Fed. Reg. 10216 (February 21, 2020).

The petition for reconsideration, filed by the California Labor Commissioner, was denied on the grounds of mootness.  PHMSA reasoned that after it issued its preemption determination, and after the request for reconsideration was filed, the Federal Motor Carrier Safety Administration determined that the California MRB Rules are preempted, under 49 U.S.C. 31141, as applied to all property-carrying commercial motor vehicles drivers covered by FMCSA’s hours of service regulations.  83 Fed. Reg. 67470 (December 28, 2018).

FMCSA’s decision covers a broader group of drivers than PHMSA’s decision.  Accordingly, PHMSA concluded that granting the petition for reconsideration would not change the fact that the California MRB Rules cannot be enforced against hazmat drivers.

DOT Issues Guidance on Use of CBD by Safety-Sensitive Employees.  The Office of Drug and Alcohol Compliance and Policy of the U.S. Department of Transportation has issued a guidance document on the use of products containing Cannabidiol (“CBD”) by truck drivers and other workers in safety-sensitive positions.

The guidance indicated that in the 2018 Farm Bill, Congress removed hemp from the definition of marijuana under the Controlled Substances Act.  Under the Farm Bill, hemp-derived products containing a concentration of up to 0.3% tetrahydrocannabinol (“THC”) are not controlled substances.  THC is the primary psychoactive component of marijuana.  Any product, including CBD products, with a concentration of more than 0.3% THC remains classified as marijuana, a Schedule I drug under the Controlled Substances Act.

Further, the DOT stated it is important for all employers and safety-sensitive employees to know:

1. The Department of Transportation requires testing for marijuana and not CBD.
2. The labeling of many CBD products may be misleading because the products could contain higher levels of THC than what the product label states.  The Food and Drug Administration (FDA) does not currently certify the levels of THC in CBD products, so there is no Federal oversight to ensure that the labels are accurate. The FDA has cautioned the public that: “Consumers should beware purchasing and using any [CBD] products.”  The FDA has stated: “It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.” Also, the FDA has issued several warning letters to companies because their products contained more CBD than indicated on the product label.
3. The Department of Transportation’s Drug and Alcohol Testing Regulation, Part 40, does not authorize the use of Schedule I drugs, including marijuana, for any reason.  Furthermore, CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result. Therefore, Medical Review Officers will verify a drug test confirmed at the appropriate cutoffs as positive, even if an employee claims they only used a CBD product.

It remains unacceptable for any safety-sensitive employee subject to the Department of Transportation’s drug testing regulations to use marijuana.  Since the use of CBD products could lead to a positive drug test result, Department of Transportation-regulated safety-sensitive employees should exercise caution when considering whether to use CBD products.

CVSA Issues Bulletin on Roadside Enforcement Using Clearinghouse.  The Commercial Vehicle Safety Alliance has issued an Inspection Bulletin providing directions to enforcement personnel on verifying a driver’s status based on data from the Federal Motor Carrier Safety Administration’s Commercial Driver’s License Drug and Alcohol Clearinghouse.

The bulletin states that roadside personnel must verify a driver’s status based on the clearinghouse data.  A driver found to be operating in a prohibited status will be cited for a violation of 49 CFR Part 390.3 – Prohibited from performing safety-sensitive functions per 382.501(a) in the Drug and Alcohol Clearinghouse.

Prior to April 1, 2020, the bulletin notes that if a driver is found to be operating in a prohibited status, the inspector should cite a violation under 49 CFR Part 390.3 and forward a copy of the inspection report to their local FMCSA office for follow-up action. On and after April 1, 2020, this violation will be an out-of-service condition in the Commercial Motor Vehicle Safety Alliance North American Standard Out-of-Service Criteria and the driver will be placed out of service if found in a prohibited status.

FMCSA Updates FAQs on Use of Bulk Queries to Clearinghouse.  The Federal Motor Carrier Safety Administration’s Drug & Alcohol Clearinghouse gives employers and third-party administrators the option to conduct queries individually, or to upload multiple queries at once. The agency has updated its Frequently Asked Questions on how this process works, including how to track the progress of a query for an individual driver when multiple queries have been requested.

FMCSA Clarifies Carrier Actions When Clearinghouse is Inaccessible.  The Federal Motor Carrier Safety Administration has provided guidance on its website for its Drug and Alcohol Clearinghouse on how carriers must respond when they are unable to access the clearinghouse database due to technical issues:

What actions should an employer take if unable to conduct required pre-employment queries?

On January 6, 2020, FMCSA posted a notice on the Clearinghouse home page that the system was experiencing technical issues, which made it difficult for employers to conduct pre-employment queries. These technical issues have been addressed. For those drivers that were hired without a pre-employment query, employers must now access the Clearinghouse to conduct pre-employment queries as required by § 382.701(1). The driver may continue to perform a safety-sensitive function pending the result of that query. At this time, no new drivers may be used to perform safety-sensitive functions without a negative Department of Transportation (DOT) drug test result, and a negative result from a full query of the Clearinghouse.

If the Clearinghouse experiences a recurrence of this issue, a notification will be placed on the home page informing employers that you may hire a driver using solely the procedures set forth in 49 CFR 391.23(e). If no such notification is on the home page, the requirement to conduct pre-employment queries prior to engaging a driver in safety-sensitive functions are in effect.

Last Updated : January 24, 2020

FMCSA Reduces UCR Fees.  The Federal Motor Carrier Safety Administration has published a final rule reducing the fees for the Unified Carrier Registration Plan for 2020 and later years.  85 Fed. Reg. 8192 (February 13, 2020).

For the 2020 registration year, the fees will be reduced by 14.45 percent below the 2018 registration fee level to ensure that fee revenues collected do not exceed the statutory maximum, and to account for the excess funds held in the depository.  The fees will remain at the same level for 2021 and subsequent years unless revised in the future. The reduction of the current 2019 registration year fees (finalized on December 28, 2018) range from approximately $3 to $2,712 per entity, depending on the number of vehicles owned or operated by the affected entities.

The UCR fees are collected by the States from motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies to fund motor carrier safety enforcement efforts under the Unified Carrier Registration Plan and Agreement.  The total revenue target for all States in 2020 is $111,777,060.

The fees are generally based on the number of vehicles in a registrant’s fleet (brokers and leasing companies pay the lowest tier fee):

Companies may now register and pay their 2020 fees online at ucr.gov.