Controlled Substances and Alcohol Use and Testing: Motion Picture Compliance Solutions Application for Exemption From the Drug and Alcohol Clearinghouse Pre-Employment Full-Query

James A. Mullen
Federal Motor Carrier Safety Administration
1 June 2020

[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: MCPSD@dot.gov. 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]
BILLING CODE 4910-EX-P