Tag: Department of transportation

DOT Proposes New Guidance For Medical Examiners To Address CBD Use By Commercial Motor Vehicle Drivers

The U.S. Department of Transportation, Federal Motor Carrier Safety Administration (FMCSA) published a proposed draft Medical Examiner’s Handbook (MEH), including updates to the Medical Advisory Criteria, in the Federal Register on August 16, 2022.  The FMCSA’s regulations provide the basic driver physical qualification standards for commercial motor vehicle (CMV) drivers, in 49 CFR 391.41 through 391.49. DOT Medical Examiners currently make physical qualification determinations on a case-by-case basis and may consider guidance to assist with making those determinations.

FMCSA stated that the goal of the updated MEH and related Medical Advisory Criteria is to provide information about regulatory requirements and guidance for Medical Examiners to consider when making physical qualification determinations in conjunction with established best medical practices. The revised Medical Advisory Criteria, in addition to being included in the MEH, would also be published in Appendix A to 49 CFR part 391. The final version of the criteria would be identical in both publications. FMCSA is proposing to update both the MEH and Medical Advisory Criteria and seeks public comment on these documents until September 30, 2022.  The draft MEH may be viewed here.

Use of CBD with 0.3% THC or Less Is Not Automatically Disqualifying

Under FMCSA regulation 49 CFR 391.41(b)(12)(i), CMV drivers are not permitted to be physically qualified when using Schedule I drugs under any circumstances. The federal Controlled Substances Act lists marijuana, including marijuana extracts containing greater than 0.3% delta-9-tetrahydrocannabinol (THC), as Schedule I drugs and substances. A driver who uses marijuana cannot be physically qualified even if marijuana is legal in the State where the driver resides for recreational or medical use.

However, under current federal law cannabidiol (CBD) products containing less than 0.3% THC are not considered Schedule I substances; therefore, their use by a CMV driver is not grounds to automatically preclude physical qualification of the driver under §391.41(b)(12)(i).

FMCSA emphasized that the U.S. Food and Drug Administration (FDA) does not currently determine or certify the levels of THC in products that contain CBD, so there is no federal oversight to ensure that the labels on CBD products that claim to contain less than 0.3% of THC are accurate. Therefore, drivers who use these products are doing so at their own risk.

FMCSA now proposes that each driver should be evaluated on a case-by-case basis and encourages Medical Examiners to take a comprehensive approach to medical certification and to consider any additional relevant health information or evaluations that may objectively support the medical certification decision. Medical Examiners may request that drivers obtain and provide the results of a non-DOT drug test during the medical certification process, if it is deemed to be helpful in determining whether a driver is using a prohibited substance, such as a CBD product that contains more than 0.3% THC.

This guidance does not impact FMCSA’s drug and alcohol testing regulations.  Use of a CBD product does not excuse a positive marijuana drug test result.

Use of Suboxone and Similar Drugs Is Not Automatically Disqualifying

FMCSA received a large number of inquiries related to Suboxone (a Schedule III drug under federal law, meaning that it has a lower potential for abuse than Schedule I and II drugs).  Treatment with Suboxone and other drugs that contain buprenorphine and naloxone, as well as methadone, are not identified in the FMCSA regulations as precluding medical certification for operating a CMV. FMCSA relies on the Medical Examiner to evaluate and determine whether a driver treated with Suboxone singularly or in combination with other medications should be issued a medical certificate. The Medical Examiner should obtain the opinion of the prescribing licensed medical practitioner who is familiar with the driver’s health history as to whether treatment with Suboxone will or will not adversely affect the driver’s ability to safely operate a CMV. The final medical certification determination, however, rests with the Medical Examiner who is familiar with the duties, responsibilities, and physical and mental demands of CMV driving and non-driving tasks.

Article By Kathryn J. Russo of Jackson Lewis P.C.

For more biotech, food, and drug legal news, click here to visit the National Law Review.

Jackson Lewis P.C. © 2022

The Promise and Peril of Autonomous Vehicles

The possibility of self-driving cars on our roads is prompting both excitement and anxiety. Advocates point to the possibility of increased safety, lower pollution, even less congestion. Critics aren’t sold on many of the supposed advantages.

So, what happens when driverless vehicles start hitting our roads? As with so many innovations, there are likely to be pluses and minuses.

Let’s consider safety. The United States Department of Transportation estimates that roughly 95% of road accidents are caused by human mistakes; driving too fast for conditions, not paying attention to the road, or illegal maneuvers such as driving through red lights. Given human tendencies to get distracted, one would expect that autonomous vehicles will be safer.

Autonomous vehicles are outfitted with sensors and cameras, which enable them to “see” their surroundings and react to traffic and pedestrians. Companies working on these vehicles have been testing these vehicles in simulated settings as well as on real roads. There is much to tout about their safety aspects: they’re not distracted like humans, they obey speed limits and traffic signs, they don’t drive fatigued.

But driving in traffic has turned out to be more challenging than expected, and a few well-publicized accidents – one involving a Tesla and one an Uber vehicle that killed a pedestrian – have prompted concerns the self-driving technology is not ready for prime time. In particular, that sensors and cameras may not be able to react in real-time to cope with humans who behave like, well, humans.

More choices or less?

“We’re moving to a future where people don’t own cars,” says Dr. Daniel Sperling, director of the Institute of Transportation Studies at the University of California, Davis. “You’ll have a subscription service, maybe, that emphasizes smaller vehicles, or you might want a cheaper service where it’s a van,” he adds.

Dr. Alain Kornhauser, director of the program in transportation at Princeton University, agrees to a point, saying privately owned cars are not likely to vanish completely — especially in rural areas, where getting a driverless taxi may be more challenging. Still, he says, the number of people who own cars — and the number of cars owned per family — will drop sharply.

In many cities with ridesharing services like Lyft or Uber, owning a vehicle has become less urgent. Autonomous vehicles could multiply ridesharing options.

But what if you’re in a rural area without these services? Should rural communities consider investing in self-driving vehicles as a form of public transport? What if you’re in a major city but can’t afford to either own an autonomous vehicle or even subscribe to the service?

There’s also the question of what happens to public transport as self-driving vehicles increase. Will we continue to support and improve the infrastructure for public transportation?

Public transport systems in the U.S. are not as robust as in some European nations. One of the main concerns for Seleta Reynolds, General Manager of Department of Transportation for Los Angeles, is managing access for people in different parts of Los Angeles because she understands how much that can impact one’s financial well-being.

“You can get to about 12 times as many jobs in an hour in a car as you can by transit in L.A.,” she said.

If autonomous vehicles end up reducing access, the financial and social impact could ripple across communities.

Then there is the question of what autonomous vehicles will do to people who drive for a living. According to the U.S. Bureau of Labor Statistics, more than 2.5 million people earn their living from driving – employed as tractor-trailer truck drivers, taxi and delivery drivers, and as bus drivers. If those jobs disappear, that could represent a potential loss of employment equal to what we saw during the Great Recession of 2008.

Many of the people driving vehicles for a living are classified as low-skilled workers. It will be difficult for such unemployed workers to quickly find new work, and the cost of re-training them could be high.

Autonomous vehicles have the potential to spur a massive and exciting paradigm shift. But there are darker clouds on the horizon too. The question is: will we be able to manage the changes wrought by self-driving vehicles in a positive way?

Copyright © 2020 Godfrey & Kahn S.C.

For more on autonomous vehicle developments, see the National Law Review Utilities & Transport Law section.

Obama Administration DOT to Continue Issuing Regulations; Potential DOT Secretaries in Trump Administration

Obama Administration DOTObama Administration DOT to Continue Issuing Regulations

The Obama Administration’s Department of Transportation (DOT) is expected to continue issuing regulations until President-Elect Donald Trump takes office in January. Over the final two months of the Administration, DOT is expected to issue regulations banning cellphone calls on flights and requiring freight trains to use two crew members. Additionally, DOT is expected to issue guidance on vehicle-to-infrastructure technologies, a proposed rule on vehicle-to-vehicle communications, and a proposed rule on operating unmanned aircraft systems (drones) over crowds.

While President-Elect Trump has indicated he will immediately begin undoing regulations and reversing President Obama’s executive actions, it is unclear whether the incoming Trump Administration will prioritize looking at DOT regulations and transportation-related executive actions.

Potential DOT Secretaries in a Trump Administration

The President-Elect Donald Trump’s transition team is currently evaluating potential picks for DOT Secretary. Individuals that have been discussed as candidates include: Representative John Mica (R-FL), a current member of the House Transportation and Infrastructure Committee who lost his reelection campaign this year; James Simpson, a former commissioner of New Jersey’s Department of Transportation and a former head of the Federal Transit Administration; and Mark Rosenker, a former National Transportation Safety Board Chairman; Greg Hughes, the speaker for Utah’s house of representatives; and former Representative Harold Ford Jr. (D-TN), a potential democratic cabinet pick.

This Week’s Hearings:

  • On Friday, December 2, the House Oversight and Government Reform Subcommittee on Transportation and Public Assets will hold a hearing titled “A Safe Track?: Oversight of WMATA’s Safety and Maintenance.” The witnesses will be announced.

ARTICLE BY Timothy W. Drake of Squire Patton Boggs (US) LLP

© Copyright 2016 Squire Patton Boggs (US) LLP

DOT Proposes Rules for Rail Transport of Flammable Materials: New Standards for Classification, Tank Cars, Emergency Preparedness

Beveridge Diamond Law Firm

Following recent events highlighting the potential devastating effects of accidents involving rail transportation of flammable liquids, the Pipeline and Hazardous Materials Safety Administration (PHMSA) of the U.S. Department of Transportation (DOT) released a pre-publication copy of a Notice of Proposed Rulemaking (NPRM) on July 23 designed to improve the safety of transporting such materials. The proposed regulations come more than a year after the derailment and explosion of a train carrying 72 tank cars, each filled with 30,000 gallons of Bakken crude oil in Lac-Mégantic, Quebec, that killed 47 people. PHMSA will accept comments 60 days from the date of publication (not yet available) in the Federal Register. Given the extensive comments received on the Advanced Notice of Proposed Rule Making (ANPRM), the agency has indicated it does not intend to extend the comment period.

Classification and Characterization Requirements of Mined Liquids and Gases

Under the proposed regulations, all offerors and shippers would be required to implement a sampling and testing program for mined gases and liquids extracted from the earth (e.g., crude oil) to ensure their hazards are understood and accounted for in packaging and emergency preparedness. Offerors would be required to maintain documentation of the sampling and testing program, review their program annually, and make program documentation available to DOT upon request. The program would include:

  • Frequency of sampling to understand material variability;
  • Sampling of different points along the supply chain to understand changes during transportation;
  • Sampling methods that ensure samples representative of entire mixtures, as packaged;
  • Testing methods to ensure better analysis, classification, and characterization of materials;
  • Statistical justifications for sample frequencies;
  • Duplicate samples for quality assurance; and
  • Criteria for modifying sampling and testing programs.

Additional Operational Requirements for High-Hazard Flammable Trains

The proposed regulations would impose additional requirements for high-hazard flammable trains (HHFTs), defined by the NPRM as trains carrying 20 or more tank carloads of a Class 3 flammable liquid. Specifically, all HHFT units constructed after October 1, 2015 must comply with DOT-117 tank car design requirements for tank cars, such as inclusion of thermal protection systems and tank car plate thickness requirements. The rule would phase out DOT-111 tank cars, the oldest tank cars in use, on the following schedule:

HHFT Class 3 Flammable Liquid Packing Group DOT-111 Not Authorized After
I October 1, 2017
II October 1, 2018
III October 1, 2020

Along with changes to tank car design specifications, operators of HHFTs would have to implement the following requirements:

  • Use of Risk Assessment in Route Selection: The proposed rule would apply rail routing requirements currently required of trains carrying certain volumes of Toxic-by-Inhalation (TIH) Chemicals, and other highly hazardous materials to HHFTs. Carriers would be required to apply 27 safety and security factors, including population density along routes, emergency response capability along the route, among others, in selecting a route for HHFTs.
  • Notification to SERCs: The rule would make permanent a May 2014 DOT emergency order requiring HHFTs carrying more than one million gallons of Bakken crude oil to notify State Emergency Response Commissions (SERCs) and other appropriate state officials about the operation of such trains through their states. Carriers would be required to report such information within 30 days of the effective date of the rule and to maintain documentation of notifications that could be made available to the Federal Railroad Administration (FRA) upon request.
  • Speed Limits and Enhanced Braking Requirements: HHFTs would be limited to 50 mph in all areas. PHMSA seeks comments on whether HHFTs that do not meet design specifications should be subject to 40 mph speed limit options in certain areas. The proposed regulations also would require HHFTs to be equipped with alternative brake propagation systems as an added safety precaution.

Other DOT Actions

Along with the NPRM, DOT issued a companion ANPRM seeking comment on the application of oil spill response planning to the shipment of flammable liquids as well as an Operation Safe Delivery Update report containing data collected from its staff and the FRA from August 2013 to May 2014. This report concludes that Bakken crude oil is more volatile and flammable compared to other crude oils. In a press release, DOT claims that it will continue to monitor the data through the fall of 2014.

ARTICLE BY

Elizabeth M. Richardson
Fred R. Wagner
Gayatri M. Patel
Of:
Beveridge & Diamond PC