This Notice pertains to employers’ noncompliance, during calendar year 2020, with the random testing requirements described in the attached notice.  The Agency may exercise enforcement discretion in connection with motor carrier investigations occurring in calendar year 2021.

In some regions of the United States, motor carrier employers subject to controlled substance (drug) and alcohol testing under 49 CFR part 382 may be unable to comply with certain testing requirements due to the ongoing impacts of the emergency. 

In recognition of these barriers to full compliance in some locations, the Agency may exercise discretion to determine not to enforce the minimum annual percentage random testing rates for drugs and alcohol, and the requirement that each employer ensure that the dates for administering random drug and alcohol tests are spread reasonably throughout the calendar year, as set forth in 49 CFR 382.305(b)(1) and (2) and 49 CFR 382.305(k), respectively. FMCSA emphasizes, however, that employers capable of meeting these requirements must continue to do so.

Notice of Enforcement Discretion Determination: Random Controlled Substance and Alcohol Testing

https://www.fmcsa.dot.gov/emergency/notice-enforcement-discretion-determination-random-controlled-substance-and-alcohol

 

Beginning June 30, eligible businesses may begin applying for the COVID-19 Relief Statewide Small Business Assistance program here. The first application window will remain open for ten days. Applications will continue to be accepted after 10 business days but will be considered for future rounds of funding, as this is not a first-come, first-served program. Applications will be prioritized and selected for funding based on the program criteria.
https://www.governor.pa.gov/newsroom/wolf-administration-cares-act-funding-for-small-businesses-available-tomorrow/

 

The Weight Restriction Exemption issued by PennDOT has been amended to be consistent with the FMCSA waiver:

 

Amendments include:

• Addition of: Livestock and livestock feed.
• Removal of: food, paper products and other groceries for emergency restocking of distribution centers or stores;
• Removal of: immediate precursor raw materials-such as paper, plastic or alcohol-that are required and to be used for the manufacture of items in categories (1), (2) or (3); (5) fuel;
• Removal of: liquefied gases to be used in refrigeration or cooling systems;
• Removal of: equipment and supplies necessary to establish and manage temporary housing, quarantine, and isolation facilities related to COVID-19.

 

TERMINATION DATE: July 14, 2020

Full Document available here.

FMCSA has issued a new three-month waiver in response to the COVID-19 Emergency - for States and Commercial Learners Permit (CLP) holders operating commercial motor vehicles.   The waiver allows a commercial learner permit driver to operate a commercial motor vehicle alone without having a commercial driver license (CDL) holder in the front seat with the learner permit holder.   The benefit of this waiver will allow CLP drivers to continue their training, due to the closures of state departments of motor vehicle facilities.

Consistent with the statutory requirements for waivers, FMCSA has determined that it is in the public interest to issue a waiver, until September 30, 2020, limited in scope and circumstances, that 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 waiver.

To respond to this unique event, and to continue the ability of intrastate and interstate CDL and CLP holders to transport goods and people, this waiver:

• Waives the requirement under 49 CFR 383.25(a)(1) that a CLP holder be accompanied by a CDL holder, with the proper CDL class and endorsements, seated in the front seat of the vehicle while the CLP holder operates a CMV on public roads or highways. Under the terms, conditions, and restrictions of this waiver, a CLP holder may operate a CMV on public roads or highways without an accompanying CDL holder present in the front seat of the vehicle, provided that the CDL holder is elsewhere in the cab. In addition, the CLP holder must be in possession of evidence from the testing jurisdiction, including an authorized third-party tester, that the CLP holder has passed the CDL driving skills test, and, the CLP holder has a valid non-CDL driver’s license, CLP, and medical certificate, unless FMCSA’s waiver regarding expiring CDLs, CLPs and medical examiners’ certificates, effective on July 1, 2020, applies.
• Waives the restriction under 49 CFR 383.79(a) that limits a State to administering a driving skills test, in accordance with subparts F, G, and H of 49 CFR part 383, to an out of state CDL applicant who has taken driver training in that State. Under the terms, conditions, and restrictions of this waiver, a State may elect to administer a driving skills test to any out of state CDL applicant, regardless of where the applicant received driver training.

https://www.fmcsa.dot.gov/emergency/three-month-waiver-response-covid-19-emergency-states-and-clp-holders-operating-0

 

FMCSA has released a report summarizing data reported to the Clearinghouse through May 2020. The report includes information on the number of Clearinghouse registrations, queries conducted, violations reported, and drivers in the return-to-duty (RTD) process.  

View the report here.

Starting today, FMCSA and NIC have made not preventable crash data available on commercial drivers’ PSP records. Feel free to share the following information and attached document with your members.

Crashes that are determined not preventable through FMCSA’s Crash Preventability Determination Program (CPDP) are now notated in PSP. If there is a crash on a driver’s PSP record that meets the not preventable criteria under CPDP, it may be submitted for review through DataQs at https://dataqs.fmcsa.dot.gov. More information on eligible crash types and how to submit a Request for Data Review (RDR) visit the CPDP.

PSP records contain driver data including all FMCSA-reportable crashes that occurred in the last five years, and roadside inspections and violations that happened in the last three years.

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Grant of waiver.

SUMMARY: FMCSA grants a three-month waiver from certain pre-employment testing requirements applicable to employers of drivers subject to 49 CFR part 382. This action responds to the President’s Executive Order No. 13924, Regulatory Relief to Support Economic Recovery, issued on May 19, 2020, related to the economic consequences of the Coronavirus Disease 2019 (COVID-19) public health emergency.

DATES: This waiver is effective June 5, 2020, and ends on September 30, 2020. 

FOR FURTHER INFORMATION CONTACT: Mr. David J. Yessen, Chief of the Compliance Division, Office of Enforcement and Compliance, 202-366-1812, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001.

Legal Basis

The Transportation Equity Act for the 21st Century (TEA-21) (Pub. L. 105-178, 112 Stat. 107, June 9, 1998) provides the Secretary of Transportation (the Secretary) authority to grant waivers from any of the Federal Motor Carrier Safety Regulations issued under Chapter 313 of Title 49 of the United States Code or 49 U.S.C. § 31136, to a person(s) seeking regulatory relief (49 U.S.C. §§ 31136(e), 31315(a)). The Secretary must make a determination that the waiver is in the public interest and that it is likely to achieve a level of safety equivalent to, or greater than, the level of safety that would be obtained in the absence of the waiver. Individual waivers may be granted for a specific unique event for a period up to three months. TEA-21 authorizes the Secretary to grant waivers without requesting public comment, and without providing public notice.

The Administrator of FMCSA has been delegated authority under 49 CFR 1.87(e) and (f) to carry out the functions vested in the Secretary by 49 U.S.C. chapter 313, relating to commercial motor vehicle operators, and 49 U.S.C. chapter 311, subchapter I and III, relating to commercial motor vehicle programs and safety regulations.

Background

On May 19, 2020, the President issued Executive Order No. 13924 setting forth “the policy of the United States to combat the economic consequences of COVID-19 with the same vigor and resourcefulness with which the fight against COVID-19 itself has been waged.” Among other things, the Executive Order directed executive branch agencies to “address this economic emergency by … waiving [] or providing exemptions from regulations and other requirements that may inhibit economic recovery consistent with applicable law and with protection of the public health and safety ….” This waiver responds to the unique circumstances of certain preemployment testing requirements arising from the economic emergency identified in the President’s Executive Order, as further described below.

Various measures employed to reduce the spread of COVID-19, including social distancing, and stay-at-home and business closure orders issued by State and local governments, have significantly decreased demand for motor carrier services, particularly from passenger carriers. In response to the COVID-19 public health emergency, many employers have imposed layoffs, furloughs, or otherwise temporarily removed employees from performing safety-sensitive functions, as defined in 49 CFR 382.107, resulting in their removal from the random pool for controlled substances and alcohol testing for a period greater than 30 days. As employers begin calling these drivers back to work, they will incur the cost of conducting pre-employment controlled substances testing before using these drivers to perform safety-sensitive functions, as required by 49 CFR 382.301. The administrative and cost burdens of pre-employment testing for furloughed drivers outside the random testing pool for more than 30 days falls on motor carrier employers at the very time they are attempting to return to expanded levels of operation. The Agency finds that temporary regulatory relief from this burden will aid in the economic recovery of motor carriers impacted by the COVID-19 public health emergency, without negatively impacting safety. FMCSA also concludes that this waiver will aid in the Nation’s overall economic recovery by enabling the efficient resumption of the transportation of people and cargo throughout the United States.

FMCSA’s Determination and Regulatory Provisions Waived

Consistent with the statutory requirements for waivers, FMCSA has determined that it is in the public interest to issue a waiver, until September 30, 2020, limited in scope and circumstances, that is likely to achieve a level of safety equivalent to, or greater than, the level of safety that would be obtained in the absence of the waiver.

Currently, pursuant to 49 CFR 382.301(a), prior to the first time a driver performs safety sensitive functions for an employer, the driver must undergo pre-employment testing for controlled substances and the employer must receive a verified negative controlled substances test result for that driver from a medical review officer or a consortium/third party administrator. This requirement also applies each time a driver returns to work after a furlough, lay-off, or other period of unemployment when the driver does not continue to be subject to random controlled substances testing in accordance with 49 CFR 382.305.

Section 382.301(b) provides an exception allowing an employer to forgo administration of a preemployment test if the driver has participated in a controlled substances testing program that meets the requirements of 49 CFR part 382 within the previous 30 days; and, if while participating in that program, the driver either: (i) was tested for controlled substances within the past 6 months or (ii) participated in the random controlled substances testing program for the previous 12 months. In addition, under the exception, the employer would be required to ensure that no prior employer of the driver has records of a violation of 49 CFR part 382 or the controlled substances use rule of another DOT agency within the previous six months.

As employers begin to recall drivers who were furloughed, laid off, or otherwise not working for the company for more than 30 days, the cost and logistical barriers of testing a large influx of drivers in a short timeframe are significant, at a time when the commercial trucking and motorcoach industry is facing unprecedented economic challenges. This problem is further compounded by the reduced availability of controlled substances testing resources due to continued facility closures or other testing impediments caused by the COVID-19 public health emergency.

This waiver would extend, from 30 days to 90 days, the period under which drivers would qualify for the pre-employment testing exception under 49 CFR 382.301(b). This relief would allow employers to forego pre-employment testing for drivers who have participated in a controlled substances testing program that meets the requirements of 49 CFR part 382 within the previous 90 days of hire or rehire. Allowing employers to forego pre-employment testing for drivers who were in a testing program within the previous 90 days will provide relief from the administrative burdens and costs associated with administering tests and allow them to return drivers to the workforce in a more efficient manner, thus promoting job creation and economic growth.

Public Interest

FMCSA finds that the granting of this waiver is in the public interest because it will facilitate the efficient return of furloughed commercial motor vehicle drivers to the workforce, allowing them to resume critical transportation functions performed by passenger and property motor carriers. In addition, this waiver will reduce the regulatory burden on employers and furloughed drivers subject to the pre-employment testing requirement.

Safety Equivalency

Due to the limited scope of this waiver and the ample precautions that remain in place, FMCSA has determined that the waiver is likely to achieve a level of safety that is equivalent to the level of safety that would be obtained absent the waiver. The waiver of a particular regulation should not be looked at in isolation but rather as part of the whole of all regulations governing the safety of drivers. Waiver determinations are made holistically, taking all relevant factors into account. See International Bhd of Teamsters v. DOT, 724 F.3d 206 (D.C. Cir. 2013). For example, in these circumstances, it is important to note that this waiver does not alter any of the remaining controlled substances and alcohol use and testing requirements for a driver performing safetysensitive functions, and that motor carrier employers subject to the waiver have access, in real time, to driver-specific drug and alcohol violation information through the Drug and Alcohol Clearinghouse (Clearinghouse).

Section 382.301(b) sets forth the following conditions a driver must meet to be excepted from pre-employment testing:

FMCSA finds that extending the period for which drivers would qualify for the pre-employment testing exception under 49 CFR 382.301(b)(1), from 30 to 90 days, will not negatively impact safety. The existing requirement that an employer relying on the § 382.301(b) exception must verify that the driver participated in the controlled substances testing specified in § 382.301(b)(2)(i) and (ii) and had no recorded violations of another DOT agency’s controlled substances use regulations within the previous 6 months remains in effect. Moreover, employers must conduct a pre-employment query of the Clearinghouse for returning drivers, as required by § 382.701(a). The Clearinghouse, which became operational on January 6, 2020, enables employers to identify drivers, including furloughed drivers, who have committed an FMCSA controlled substances and alcohol testing program violation that renders them ineligible to perform safety-sensitive functions. Such drivers are prohibited from performing safety-sensitive functions until completing the return-to-duty process, as set forth in 49 CFR part 40, subpart O. The Clearinghouse provides employers with a useful new tool for identifying drivers’ drug and alcohol program violations that did not exist at the time the Agency enacted the 30-day limit for the exception in § 382.301(b). Further, employers must continue to complete a background investigation on returning or prospective drivers’ controlled substances and alcohol testing history with all DOT-regulated employers that employed the driver within the previous 3 years, in accordance with 49 CFR §§ 40.25, 382.413, and 391.23.

FMCSA believes that the current regulatory framework, as well as the additional measures listed below under Terms, Conditions, and Restrictions of the Waiver, taken collectively, provide the assurance needed to meet the legal standard that granting the waiver is likely to achieve an “equivalent level of safety.” Therefore, FMCSA has determined that extending from 30 to 90 days the period for which drivers would qualify for the pre-employment testing exception under 49 CFR 382.301(b) during the period of the waiver 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 waiver.

Unique Circumstances

The COVID-19 public health emergency has led to unprecedented impacts to the Nation’s economy. Various measures employed to reduce the spread of COVID-19, including social distancing, and stay-at-home and business closure orders issued by State and local governments, have significantly decreased demand for motor carrier services, particularly from passenger carriers. In response to the COVID-19 public health emergency, many employers have imposed layoffs, furloughs, or otherwise temporarily removed employees from performing safetysensitive functions. FMCSA finds that the circumstances surrounding this waiver are unique due to the urgent need to remove regulatory barriers to allow the efficient resumption of motor carrier operations. For the reasons noted, FMCSA grants a three-month waiver as provided above, subject to the terms, conditions, and restrictions below.

Terms, Conditions, and Restrictions of the Waiver

This waiver covers employers of drivers subject to the requirements of 49 CFR part 382 for the period beginning at 12:01 a.m. (ET) on June 5, 2020, and continuing through 11:59 p.m. on September 30, 2020.

(1) Employers must verify that the driver participated in the controlled substances testing specified in § 382.301(b)(2)(i) and (ii) and had no recorded violations of another DOT agency’s controlled substances use regulations within the previous 6 months;

(2) Employers must comply with the Clearinghouse pre-employment query requirement set forth in 49 CFR 382.701(a);

(3) Employers must not allow a driver to perform any safety-sensitive function if the results of a Clearinghouse pre-employment query demonstrate that the driver is prohibited from doing so, in accordance with 49 CFR 382.701(d);

(4) Employers must complete the investigations and inquiries required by 49 CFR §§ 40.25, 382.413, and 391.23;

(5) Accident Notification. Each employer must notify FMCSA within 5 business days of an accident (as defined in 49 CFR 390.5), involving any driver operating under the terms of this waiver. See 49 CFR 390.15(b) (requiring maintenance of accident registry). Notification shall be by email to [email protected] The notification must specify that the driver was operating under the terms of this waiver and must include the following information:

i. Date of the accident;

ii. City or town, and State in which the accident occurred, or closest to the accident scene;

iii. Driver's name and license number;

iv. Vehicle number and State license number;

v. Number of individuals suffering physical injury;

vi. Number of fatalities;

vii. The police-reported cause of the accident (if available at time of the report); and

viii. Whether the driver was cited for violation of any traffic laws, or motor carrier safety regulations; and

(6) FMCSA reserves the right to revoke this waiver due to drivers’ involvement in accidents or employers’ failure to comply with the terms of this waiver.

The American Trucking Associations, ATA Safety Management Council (SMC) and the ATA Transportation Security Council (TSC) provides the following recommendations for professional drivers and motor carriers operating in areas of protest and social unrest.

The ongoing protests across our nation has put the trucking industry and professional drivers on the frontline once again. Remaining safe and secure is the number one priority and taking proper precautions when operating in these areas can protect drivers.

While it is impossible to plan for each situation, there are key safety and security measures professional drivers can take when operating in areas with potential unrest. Below is a list of recommended practices to help professional drivers remain safe and secure:

1.      Immediately report any emergency situation to local law enforcement by calling 911.

2.      Avoid areas of unrest. Exercise caution when in the vicinity of any large gatherings, protests, or demonstrations.

3.      Plan for road closures. If your route brings you through an area that has seen protests, check the local news, with your dispatcher, or the safety department to make sure interstates and roads along the route are open and the area you are delivering to is safe.

4.      Contact the delivery location for current and timely situations and conditions. Traffic conditions are constantly changing.

5.      Remain in regular communication with your dispatcher to provide travel updates.

6.      Plan ahead, try to make deliveries in areas of unrest during the day, at night park in well-lit, safe areas.

7.      Assess every situation prior to exiting the cab of your truck. If danger or exposure to large gatherings in the form of protest exist, abort delivery operations.

8.      Conduct thorough pre-trip inspections before departing domiciled locations; eliminate maintenance breakdowns from the equation.

9.      Always keep doors locked and windows closed. Remove keys from unattended vehicles and ensure trailer locking and latching mechanisms are functioning properly.

10.  If you encounter a gathering, stop your vehicle and do not drive through. Avoid any interaction and do not provoke the group.

11.  If available, utilize your in-cab camera in an unsafe situation to document your surroundings.

Maintain continuous contact with your dispatcher and safety department for specific operating procedures and follow company policy.

While PMTA understands there is a lot of information circling the internet and social media and it seems to change almost daily, there are resources specifically set forth for reopening your workplace/business. It is important to utilize only credible sources and understand there are guidelines, mandates and executive orders which can and do change. Also be sure to consider when your county moves from red to yellow to green and post green. It may be a constant struggle to keep up to date, but it is extremely important. PMTA has created a webpage dedicated to COVID-19 information and resources and will continue to update via this site, social media (Facebook and Twitter) and topic specific member emails.

Recently, the PA Chamber of Business & Industry hosted a 5-part series providing content and additional resources for any business to incorporate into their reopening. Below are presentation slides, recordings of the presentations and handouts all which can help give additional guidance and knowledge to assist you through the COVID-19 transitions.

The Centers for Disease Control & Prevention (CDC) provides an expansive wealth of resources for Businesses & Workplaces to “Plan, Prepare, and Respond” and the PA Department of Health also has extensive information available. As always, please ensure you are constantly checking these resources for any changes.

Additionally, we are providing links to additional resources which you may find helpful.

• ReOpening Cleaning & Disinfecting Tool
• Guidance for Cleaning & Disinfecting
• Workplace Decision Tree
• Coronavirus Employee Questionnaire

Series Highlights

Part I: Overview of State Guidelines and Review of Phased Reopening
Part II: Prepare Your Workplace: Cleaning, Sanitation, and PPE 
Part III: HR Guidelines  (DOL Regulations, Exhibits, Guidelines & Follow Up Questions)
Part IV: Litigation and Liability Issues 
Part V: Recovery Process for Key Areas of Your Business

Part I:
Overview of State Guidelines and Review of Phased Reopening (Recording available)

Part II:
Prepare Your Workplace: Cleaning, Sanitation, and PPE (Part II is included in the Part I recording)

Part III:
HR Guidelines (Recording available)

Part IV:
Litigation and Liability Issues (Recording available)

Part V:
Recovery Process for Key Areas of Your Business (Recording available)

Saturday night in Pittsburgh, amid riots and protests like those going on around the nation, a driver from member company Summers Trucking found himself in a very difficult situation.

He was stuck. Trapped in the road by protesters who were jumping on his tractor and flatbed trailer. The police on scene were unable to help because rioters had just set a police vehicle on fire near the truck.

But the driver remained calm until he could safely leave and Summers Trucking routed him to a secure lot at fellow member Pitt Ohio.

“Had it not been for our association with Pitt Ohio through PMTA, we would not have found a safe haven for our driver and our equipment,” said Becky Summers. “In my opinion, the networking is one of the more valuable tools PMTA has to offer.”

A big thank you to Dean Yockey of Pitt Ohio and the rest of their staff who assisted in this desperate situation.