[Federal Register Volume 85, Number 105 (Monday, June 1, 2020)]
[Notices]
[Pages 33274-33276]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-11742]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2020-0101]
Controlled Substances and Alcohol Use and Testing: Motion Picture
Compliance Solutions Application for Exemption From the Drug and
Alcohol Clearinghouse Pre-Employment Full-Query
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of final disposition.
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SUMMARY: FMCSA announces its decision to grant Motion Picture
Compliance Solutions (MPCS) an exemption from the requirement that an
employer must not employ a driver who is subject to drug and alcohol
testing to perform safety-sensitive functions prior to conducting a
full query of the Drug and Alcohol Clearinghouse (Clearinghouse) on
behalf of its members that employ commercial driver's license (CDL)
holders. Under the exemption, MPCS may conduct a limited query of the
Clearinghouse before one of its member employers hires a driver for a
project, rather than conducting a full pre-employment query as
required. If the limited query indicates that information about the
driver exists in the Clearinghouse, the driver would not be permitted
to perform safety-sensitive functions unless and until a full query
subsequently shows that the driver is not prohibited from operating a
commercial motor vehicle (CMV). Absent the exemption, a limited query
would be available only to satisfy the employer's duty to make an
annual query, not a pre-employment query. The Agency has determined
that the terms and conditions of the exemption, coupled with MPCS's
unique safety protocols, will achieve a level of safety that is
equivalent to the level of safety that would be achieved through
compliance with the applicable regulation.
DATES: This exemption is effective June 1, 2020 and expires May 28,
2025.
Viewing Comments and Documents
To view comments, as well as documents mentioned in this notice as
being available in the docket, go to www.regulations.gov and insert the
docket number, ``FMCSA-2019-0101 in the ``Keyword'' box and click
``Search.'' Next, click the ``Open Docket Folder'' button and choose
the document to review. If you do not have access to the internet, you
may view the docket online by visiting the Docket Management Facility
in Room W12-140 on the ground floor of the DOT West Building, 1200 New
Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m.,
e.t., Monday through Friday, except Federal holidays. To be sure
someone is there to help you, please call (202) 366-9317 or (202) 366-
9826 before visiting Docket Operations.
FOR FURTHER INFORMATION CONTACT: Ms. Pearlie Robinson, FMCSA Driver and
Carrier Operations Division; Office of Carrier, Driver and Vehicle
Safety Standards; Telephone: (202) 366-4325; Email: [email protected]. If
you have questions on viewing or submitting material to the docket,
contact Docket Services, telephone (202) 366-9826.
SUPPLEMENTARY INFORMATION:
I. Legal Basis
FMCSA has authority under 49 U.S.C. 31315(b) to grant exemptions
from certain parts of the Federal Motor Carrier Safety Regulations
(FMCSRs). FMCSA must publish a notice of each exemption request in the
Federal Register (49 CFR 381.315(a)). The Agency must provide the
public an opportunity to inspect the information relevant to the
application, including any safety analyses that have been conducted.
The Agency must also provide an opportunity for public comment on the
request.
The Agency reviews safety analyses and public comments submitted,
and determines whether granting the exemption would likely achieve a
level of safety equivalent to, or greater than, the level that would be
achieved by the current regulation (49 CFR 381.305(a)). The decision of
the Agency must be published in the Federal Register (49 CFR
381.315(b)) with the reasons for denying or granting the application
and, if granted, the name of the person or class of persons receiving
the exemption, and the regulatory provision from which the exemption is
granted. The notice must also specify the effective period and explain
the terms and conditions of the exemption. The exemption may be renewed
(49 CFR 381.300(b)).
II. Background
Current Regulations
Currently, 49 CFR 382.701(a)(2) requires that employers must not
employ a driver subject to the testing requirements of 49 CFR part 382
without first conducting a pre-employment full query of the
Clearinghouse. A full query allows the employer to see any information
that exists about a driver in the
[[Page 33275]]
Clearinghouse. An employer must obtain the driver's specific consent,
provided electronically through the Clearinghouse, prior to the release
of detailed information in response to the full query.
By contrast, a limited query allows an employer to determine
whether the Clearinghouse contains any information about the driver,
but does not release any specific information about the driver. Limited
queries require only a driver's general consent, which is obtained and
retained outside the Clearinghouse and may be in written or electronic
form. Under 49 CFR 382.701(b)(2), an employer may conduct a limited
query in lieu of a full query when satisfying the annual query
requirement for current driver-employees. However, if the response to a
limited query indicates there is information about the driver in the
Clearinghouse, the employer must conduct a full query, after obtaining
the driver's specific consent, within 24 hours, as required by 49 CFR
382.701(b)(3). If the full query is not conducted within the 24-hour
period, or shows that the driver is prohibited from operating a CMV,
the employer must not permit the driver to continue to perform safety-
sensitive functions.
MPCS Exemption Application
MPCS requested the exemption from 49 CFR 701(a)(2) on behalf of its
members that employ CDL holders subject to drug and alcohol testing
under 49 CFR part 382. MPCS's members employ drivers providing
transportation services to or from theatrical, commercial, television,
or motion picture production sites. MPCS would conduct a limited query
of the Clearinghouse before one of its member employers hires a driver
for a project. If the limited query indicates that information about
the driver exists in the Clearinghouse, the driver would not be
permitted to perform safety-sensitive functions unless and until a full
query subsequently shows that the driver is not prohibited from
operating a CMV. MPCS, serving as a Consortium/Third-party
Administrator (C/TPA) for its member employers, requests, obtains, and
retains limited query general consent forms from drivers. A copy of the
exemption application is included in the docket referenced at the
beginning of this notice.
III. Public Comments
On March 6, 2020 (85 FR 13229), FMCSA published a Federal Register
notice requesting public comment on MPCS's exemption application. The
Agency received 12 comments: Dot Production Compliance; Brian Gray;
Brian Hildebrandt; Michael Millard, AWM; the Owner-Operator Independent
Drivers Association (OOIDA); Scopelitis Transportation Consulting
(STC); James Whalen; Mark Whelan, Teamsters Local 817; Pamela White;
and three separate anonymous comments. Four of the commenters supported
the request while eight commenters expressed opposition to the request.
dot Compliance believes that granting the MPCS request to start
with a limited query is needed for employing drivers in the studio
production industry. The company stated, ``[The exemption] allows for a
more expedient onboarding process and we agree that this exemption
would not have any adverse impacts on operational safety, because if
the Limited Query produces negative information MPCS will then conduct
a Full Query.''
dot Compliance believes compliance with 49 CFR 382.701(a)(2) would
significantly slow down the industry's ability to hire drivers within
the short onboarding periods of less than 24 hours and prevent the
studios from implementing ``more efficient or effective operations that
would maintain a level of safety equivalent to, or greater than, the
level of safety achieved without the exemption.''
STC expressed support for the MPCS exemption application. STC
stated:
[MPCS's] robust safety protocols, including a private database
that tracks drivers' drug testing history, provides MPCS with an
uninterrupted look into drivers' qualifications. This coupled with
their adoption of the Drug & Alcohol Clearinghouse limited query
protocol (which will be converted to a full query in the unlikely
event information is returned) is an approach that exceeds minimum
requirements and creates a level of safety greater than that
required under current regulation. Under the exemption, MPCS will
not be relieved of the requirement to use the Clearinghouse, they
will simply be allowed to use a reasonable alternative method to
access the information. They will continue to take the same action
in response to information it contains and will be obligated to
report testing information like all other motor carriers and third-
party administrators.
OOIDA opposes the MPCS request because they believe granting the
exemption would
``. . . diminish the intended safety benefits of the program.''
OOIDA acknowledges the employment arrangement described by MPCS and
states:
This type of scenario was one of the reasons the Clearinghouse
was enacted, so drivers with drug/alcohol violations cannot simply
move around to different carriers. Waiving the pre-employment full
query requirements may prevent carriers from accessing necessary
hiring information and allow drivers with drug/alcohol violations to
return [to] the road before proper evaluation and treatment is
completed. OOIDA urges FMCSA to deny the MPCS exemption request. The
exemption would not maintain or improve the level of safety that is
currently required by the Drug and Alcohol Clearinghouse.
Brian Gray also wrote in opposition to the MPCS requests for an
exemption from 49 CFR 382.701(a)(2). Mr. Gray states:
All motor carriers are in need of drivers to start ASAP.
Allowing this exemption will push CDL holding drug users into the
motion picture industry, and because MPCS uses the pre-employment
testing exemption in its hiring process, most of these drivers won't
get pre-employment tested. MPCS's reasoning for the exemption is due
to the length of time it says it takes to run a full query. Being a
TPA owner myself, my staff has completed over 1,000 pre-employment
queries. The most time consuming part of running the query is
getting the driver registered with the Clearinghouse. Once the
driver is registered, performing the query takes less than 5
minutes. That being said, registration has been open since October
2019. MPCS has had plenty of time to get its 12,000 drivers
registered.
IV. FMCSA's Safety Analysis and Decision
The FMCSA acknowledges the concerns of commenters who expressed
opposition to the MPCS exemption application. However, as explained
below, FMCSA disagrees with commenters who stated that, were we to
grant the requested exemption, an equivalent level of safety would not
be maintained. In the Agency's judgment, MPCS's process for identifying
qualified drivers for its member employers is uniquely designed to
accommodate safety concerns related to drug and alcohol testing
violations. FMCSA concludes that, based on MPCS's existing processes,
coupled with the terms and conditions set forth below, it is
appropriate to provide limited relief from the pre-employment full
query requirement through the requested exemption.
As MPCS explained, the motion picture industry is freelance in
nature and employs a pool of approximately 12,000 production drivers
who are considered multiple-employer drivers. These drivers frequently
work for more than one production-related motor carrier in a week and
in some instances, two or more in the same day. To address the
challenges in the motion picture industry, MPCS and its member motor
carriers implemented a DOT Violation Database (Database) comparable to
the FMCSA's Clearinghouse. The Database
[[Page 33276]]
consists of all information and documentation pertaining to a driver's
violations, including the initial positive/violation report(s) and/or
supporting documentation, substance abuse professional (SAP)
documentation, and information about return-to-duty tests and any
follow-up tests. This process has been in place for 10 years and
drivers and employers have provided and disclosed information relating
to their violations such that the Database houses the information
needed to support a high level of safety oversight for the motion
picture industry's CMV drivers. The Database complies with the
applicable privacy rules including driver notification and consent.
With regard to queries of the Database, each time a production
company hires a CDL holder, the company accesses the driver's record in
the Database to determine if he or she is eligible to operate a CMV
based on their drug and alcohol violation history. The Database
instantly identifies drivers who are prohibited from performing safety-
sensitive functions and ensures that such drivers receive the required
SAP evaluation, treatment, return-to-duty testing and follow-up testing
before returning to safety-sensitive duties. FMCSA notes that, under
this process, drivers are part of a pool of drivers serving the motion
picture industry over a period of time, whose pre-Clearinghouse DOT
drug and alcohol testing history is known to the employer via the
Database. Therefore, these drivers are not fundamentally ``new hires,''
as that term is commonly understood.
With the implementation of FMCSA's Clearinghouse, MPCS members, and
MPCS as the C/TPA, will use the exemption to allow them to conduct a
limited query of FMCSA's Clearinghouse as part of the ``hiring''
process. This alternative would not jeopardize safety because the
employer and/or their C/TPA must conduct a full query if the limited
query shows that information about the driver exists in the
Clearinghouse. A driver's specific consent for the full query would be
provided electronically in the Clearinghouse as required under the
existing regulations. At the same time, the Database that was
established prior to the Clearinghouse will continue in operation,
thereby providing further means of identifying qualified drivers prior
to the FMCSA-mandated queries of the Clearinghouse.
To address the requirements for documentation of drivers' consent
for limited queries, MPCS would serve as a C/TPA and request, obtain,
and retain limited query consent forms from drivers on behalf of its
motor carrier members. At any point that a full query becomes
necessary, a driver's specific consent would be provided
electronically, as noted above.
From a safety equivalency perspective, all CDL holders employed by
MPCS' member companies would remain subject to FMCSA controlled
substances and alcohol testing requirements, and their employers would
ultimately be responsible for complying with the applicable
requirements of part 382, other than the pre-employment full query.
Drivers for whom a limited query indicates information is contained in
the Clearinghouse would not be used in any safety-sensitive capacity
until a full query is conducted and the results indicate the driver is
not prohibited from operating a CMV. In addition, MPCS would continue
to report violation information on behalf of its member employers to
FMCSA's Clearinghouse, as required by 49 CFR 382.705 (b).
Finally, the Agency notes that 49 CFR 382.701(c), which provides
that an employer conducting a pre-employment full query will be
notified if any new information about that driver is reported to the
Clearinghouse within 30 days of the full query, would not be applicable
to pre-employment limited queries. However, due to the unique hiring
practices of MPCS's member employers, under the exemption, MPCS would
be conducting limited queries multiple times during any given 30-day
period for the same driver, each time the driver is ``hired'' to
perform services for a different MPCS employer member. This practice,
coupled with drug and alcohol violation information available to MPCS
and its member employers through the existing Database, described
above, ensures an equivalent or greater level of safety provided by the
30-day notification set forth in 49 CFR 382.701(c).
Based on the information presented in the exemption application,
and in consideration of the public comments, FMCSA grants MPCS an
exemption from 49 CFR 382.701(a)(2) on behalf of its members, subject
to the terms and conditions set forth below. The Agency has determined,
as required by 49 U.S.C. 31315(a) and the implementing regulations
under 49 CFR 381, that the exemption is likely to achieve a level of
safety that is equivalent to, or greater than, the level of safety that
would be obtained in the absence of the exemption.
V. Terms and Conditions for the Exemption
This exemption is limited strictly to 49 CFR 382.701(a)(2) of the
Federal Motor Carrier Safety Regulations and during the period of the
exemption:
1. MPCS, on behalf of its member employers, must obtain the results
of a limited query of FMCSA's Clearinghouse for each driver hired to
operate a CMV for a member employer, if a full query is not
practicable;
2. MPCS, on behalf of its member employers, must conduct a full
query of FMCSA's Clearinghouse for each driver whose limited query
results indicate information about the driver exists in the
Clearinghouse, and, in accordance with current regulations, must not
permit the driver to perform safety sensitive functions if the results
of the full query indicate the driver is prohibited from doing so;
3. MPCS, acting as a C/TPA, must request, obtain, and retain
limited query consent forms from drivers on behalf of its member
employers, in accordance with the regulations;
4. MPCS, acting as a C/TPA, must report drivers' controlled
substances and alcohol violations to FMCSA's Clearinghouse, in
accordance with the regulations; and
5. MPCS and its member employers must maintain operation of the DOT
Violation Database, described above.
VI. Preemption
In accordance with 49 U.S.C. 31315(d), during the period this
exemption is in effect, no State shall enforce any law or regulation
applicable to interstate commerce that conflicts with or is
inconsistent with this exemption with respect to a firm or person
operating under the exemption.
VII. Termination
FMCSA does not believe the drivers covered by this exemption will
experience any deterioration of their safety record. Interested parties
or organizations possessing information that would otherwise show that
MPCS is not achieving the requisite statutory level of safety should
immediately notify FMCSA. The Agency will evaluate any information
submitted and, if safety is being compromised or if the continuation of
this exemption is inconsistent with 49 U.S.C. 31315, FMCSA will
immediately take steps to revoke the exemption of the company and
drivers in question.
James A. Mullen,
Deputy Administrator.
[FR Doc. 2020-11742 Filed 5-29-20; 8:45 am]
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