OPMCA Connection
Keeping You Informed!


OPMCA Connection keeps you informed and current on regulations from all state and national agencies as well as laws pertaining to the petroleum marketing/c-store industry.
OPMCA STAFF

Candace McGinnis
Executive Director  
Candace@opmca4you.com 

Hannah Fite
Director of Member Services  
Hannah@opmca4you.com

OPMCA  
6420 N. Santa Fe, Suite B
Oklahoma City, OK 73116
Phone: (405) 842-6625 
(800) 256-5013 
Fax: (405) 842-9562
2019-2020 Board of Directors

Jerry Davidson, Chairman  
 Pete's Corporation

Tommy Shreffler
OnCue Marketing, LLC

Teresa Hollenbeck
Red Rock Distributing Company

Kurtis Hutchinson
Hutchinson Oil Company

Jason Flinn
Flowers Oil Company

Rob Toth
Coffeyville Resource
Tuesday, Jan. 7, 2020
  • Update on Interchange Fee Settlement

  • FMCSA DRUG AND ALCOHOL CLEARINGHOUSE WEBSITE DOWN

  • Mandatory Use of FMCSA Online Database for Managing CDL Driver Drug and Alcohol Test Records Began January 6, 2020

  • 2020 Federal Motor Fuel Excise Tax Rates

  • T21 Effective Immediately

  • FDA Releases Final Guidance on Flavored E-Cigarettes, Flavored Cigars and Hookah Tobacco

  • Federated Insurance Sponsored Webinar
Update on Interchange Fee Settlement
Recently, the United States District Court for the Eastern District of New York gave final approval to the multi-billion dollar settlement of the Visa/Mastercard antitrust litigation.  A copy of the Court’s approval order is attached here . All class members who did not opt out of the class by the July 23, 2019 deadline comprise a settlement class of all merchants that accepted Visa and Mastercard transaction cards during the relevant period. By remaining in the class, all such class members have released Visa and Mastercard for all antitrust liability for the period, and their only recourse now is to file for reimbursement from the settlement fund. 
 
At the November 7, 2019 hearing at which the Court considered the objections to the settlement filed by class members, the Court indicated an intent to appoint a special master to determine whether franchisors (major branded suppliers) or franchisees (like branded wholesalers and retailers) or both, will be the recipients of settlement funds based on branded transactions at wholesaler and retailer locations. Many objectors urged the Court to make this decision before (and not after) final approval.  It is likely that the Court’s final approval will be appealed to the Second Circuit Court of Appeals on, among other things, the ground that the above referenced decision should have been made before final approval, before class members had to decide whether to stay in or opt out of the class, and before those who stayed in the class were required to release their claims against Visa and Mastercard.
 
It is anticipated that there will be various appeals from the final approval, on a number of different grounds, and that no distribution will take place until the appeals are resolved. PMAA will keep its members apprised of the progress of these appeals. In the meantime (as stated above) a special master will hear claims from branded refiners, and from branded wholesalers and retailers, and decide whether wholesalers and retailers will be eligible to receive settlement money.    

FMCSA DRUG AND ALCOHOL CLEARINGHOUSE WEBSITE DOWN
PMAA has learned that the Federal Motor Carrier Safety Administration’s (FMCSA) CDL driver drug and alcohol clearinghouse website ( https://clearinghouse.fmcsa.dot.gov ) has crashed due to overuse. As a result, petroleum marketers attempting to register have been unable to do so.

The FMCSA told PMAA that software specialists are working diligently to get the site up and running so registration can continue. Please note that petroleum marketers are only required to register once they generate their first CDL driver drug and alcohol record beginning January 6, 2020. Those records include, notice of driver drug or alcohol violation, annual drug and alcohol tests for current employees and preemployment drug and alcohol record search for new employee applicants.

If your company is not generating any of these records now, or does not expect to generate them over the next two weeks, the FMCSA recommends that you delay registering for the time being. January 6, 2020 is not a registration deadline, but only the date after which generation of drug and alcohol records requires registration.

If your company has, or expects to generate CDL driver drug and alcohol records today or in the next few days, the FMCSA recommends that you check back daily to see if the site is up and running.
PMAA will report on further developments as they occur.

Mandatory Use of FMCSA Online Database for Managing CDL Driver Drug and Alcohol Test Records Began January 6, 2020 
Reminder! The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) new online CDL driver drug and alcohol Clearinghouse database requirements took effect on January 6, 2020. Petroleum marketers who are subject to the FMCSA drug and alcohol testing requirements must register with the Clearinghouse and use it to manage employee drug and alcohol testing records. Drivers must register with the Clearinghouse to provide electronic consent for those who must have access to his/her drug and alcohol testing records. Registration for both employers and drivers must occur before generating any new drug and alcohol testing records after January 6, 2020. Full compliance information on petroleum marketer’s responsibilities under the drug and alcohol Clearinghouse rule can be found here.

The Clearinghouse is a secure online, searchable electronic database where all CDL driver drug and alcohol violations will now be posted. The Clearinghouse will provide employers, CDL drivers, medical review officers (MRO), substance abuse professionals (SAP), state driver licensing agencies (SDLA) and enforcement authorities real-time information about CDL drivers drug and alcohol program violations. The Clearinghouse will contain records of violations of drug and alcohol prohibitions, including positive drug or alcohol test results, test refusals, completion of return-to-duty (RTD) process and follow-up testing plan. CDL drivers, employers, MROs, SAPs and SDLAs must all register to use the database. 

The Clearinghouse mandate does not change any current U.S. DOT drug and alcohol testing regulations or procedures other than to require use of the online database to comply with existing drug and alcohol record keeping requirements. Employer use of the Clearinghouse database is required for pre-employment CDL driver record investigation; annual drug and alcohol investigations for all current CDL employees; to upload driver drug and alcohol violations; and return to duty status records. Congress required the FMCSA to create and implement the Clearinghouse under the Moving Ahead for Progress in the 21st Century Act (Pub. L. 112-141, 126 Stat. 405).

2020 Federal Motor Fuel Excise Tax Rates
The federal Oil Spill Liability Tax (OSLT) that expired on December 31, 2018 has been reauthorized prospectively (not retroactively) beginning January 1, 2020. Refiners are the only parties in the petroleum distribution chain liable for the OSLT. The OSLT rate is $0.09 cents per barrel of crude oil. Refiners pass the OSLT downstream as a cost rolled into the per gallon price of finished product and adjusted downward based on the volume of any non-crude blend stock added at the terminal such as ethanol and biodiesel. Additionally, please click on the link below that list the latest federal motor fuels excises tax rates. 

Click here to read the full PMAA Compliance Bulletin.

T21 Effective Immediately
The Tobacco21 (T21) provision in the government spending/tax extenders bill that the President signed into law recently required that within 180 days of the bill’s enactment, the Department of Health and Human Services must issue a final rule that changes all references to the minimum age to purchase tobacco products in the Federal Code from 18 to 21. It also stated that the final rule must go into effect within 90 days from when it is published.

However, the U.S. Food and Drug Administration (FDA) announced last week that the T21 law is effective immediately, meaning it is now illegal for stores to sell tobacco products, including cigarettes and e-cigarettes, to anyone under the age of 21. We understand this has created a lot of confusion among retailers who have been given no formal notice or direction from the FDA or a reasonable time frame to transition stores and employees. As a result, PMAA has joined NACS and SIGMA, as well as other trade groups, in sending a letter to the FDA and HHS last Friday asking them to announce that they will not enforce T21 until the implementing regulations are written and finalized.   

Specifically, the letter states that our trade groups are “asking that FDA make clear to the regulated community that it understands this transition will take some time. FDA should announce that the new age 21 restriction on tobacco product sales will not be enforced until FDA has had a chance to write new implementing regulations and for those regulations to go into effect. That way everyone can work to ensure that this transition is handled the right way and that FDA regulations are followed.” Click here to view the letter. 

PMAA will stay on top of this issue and keep you updated as we learn more. In the meantime, it is important that all retailers comply with the law and not sell any tobacco products to anyone under the age of 21.

FDA Releases Final Guidance on Flavored E-Cigarettes, Flavored Cigars and Hookah Tobacco
The FDA issued a Final Guidance last week titled “Electronic Nicotine Delivery Systems (ENDS) and Other Deemed Products on the Market Without Premarket Authorization.” The Final Guidance document describes the enforcement policy that the FDA will take relative to certain flavored e-cigarettes, flavored cigars and flavored hookah tobacco.  
 
The final guidance document does not appear to single out convenience stores, but rather focuses on specific kinds of electronic nicotine products (i.e., certain flavored cartridge-based electronic nicotine products). In a statement from FDA, it said that “this Final Guidance prioritizes enforcement with respect to any flavored, cartridge-based ENDS products (other than a tobacco and menthol-flavored ENDS product) without regard to the location or method of sale.” After the FDA’s Draft Guidance was released in March, PMAA and other like-minded associations opposed the FDA provision allowing sales of flavored e-cigarettes in stores that are considered adult-only, such as vape shops, while prohibiting them from being sold in convenience stores.
 
Below is a summary of the additional provisions in the Final Guidance document courtesy of the National Association of Tobacco Outlets: 
 
  • The Final Guidance would take effect thirty days after the Final Guidance document is published in the Federal Register. The Final Guidance document should be published in the Federal Register in the next day or two.  
 
  • The FDA will prioritize enforcement against those companies that manufacture, distribute or sell flavored cartridge-based electronic nicotine delivery products (except tobacco-flavored, menthol-flavored and non-flavored cartridge-based electronic nicotine delivery products) that have not received a premarket authorization order from the FDA. 
 
  • Flavored cartridge-based electronic nicotine delivery products (except tobacco-flavored, menthol flavored, and non-flavored cartridge-based products) would need to be removed from the market, including from retail stores, within 30 days after the Final Guidance document is published in the Federal Register. The FDA states in the Final Guidance document that these products are not being completely banned from the market but could come back on the market if manufacturers file premarket authorization applications by May 12, 2020 and the FDA subsequently approves the application.
 
  • The FDA also intends to prioritize enforcement against those cartridge-based products for tobacco-flavored, menthol-flavored, or non-flavored electronic nicotine products and any non-cartridge flavored electronic nicotine products if they lack a premarket authorization order from the FDA and the manufacturer has not taken or is not taking adequate measures to prevent minors’ access to these products. 
 
  • The FDA also intends to prioritize enforcement against any electronic nicotine products targeted to, or whose marketing is likely to promote use by, underage persons. Examples include electronic nicotine products with labeling or advertising that resembles kid-friendly foods and drinks (e.g., juice boxes, candy or kid-friendly cereal), or with youth-appealing cartoon or animated character advertising or marketed on popular children’s YouTube channels and television shows.
 
  • The FDA also intends to prioritize enforcement of any electronic nicotine product (either cartridge-based or non-cartridge based product) that is offered for sale after May 12, 2020, and for which the manufacturer has not submitted a premarket authorization application (or after a negative action by FDA on a timely submitted application). 
 
  • The FDA will not at this time take enforcement action against “open system” electronic nicotine products nor small manufacturers such as vape shops that mix e-liquids on-site and primarily sell non-cartridge-based electronic nicotine products, unless they market to youth, fail to take adequate measures to prevent youth access, or do not file a premarket authorization. 
 
  • The FDA has decided not to prioritize enforcement against flavored cigars and flavored hookah tobacco products before May 12, 2020 because underage use of these tobacco products is significantly lower than cartridge-based electronic nicotine products. However, the FDA reiterates in the Final Guidance document that flavored cigars and flavored hookah tobacco are required to submit premarket authorization applications to the agency for those products by May 12, 2020. The FDA acknowledges that there are a number of “grandfathered” flavored cigars that are lawfully marketed and would remain available to consumers regardless of FDA’s enforcement of premarket authorization requirements.
 
Click here to view the full FDA Final Guidance document.

Federated Insurance Sponsored Webinar
A Top 10 List You Can’t Ignore (OSHA Top 10)
Tuesday, January 21, 2020 (1 PM CT)
30 minutes | Complimentary | Advance registration required

Each year, OSHA releases a summary of their list of top 10 workplace safety violations. This webinar will take a look at the 2019 list. More importantly, however, we will focus on risk management policies, procedures, and training resources to implement and help reduce employee accidents and injuries!  

WHO SHOULD ATTEND  

  • Risk Managers 
  • Operations Managers 
  • HR Professionals 
  • Owners/Operators

WHAT YOU WILL LEARN

  • Quick overview of the OSHA Top 10 violations for 2019 
  • Training resources, programs and policies to implement in your business 
  • How to positively impact workplace productivity and culture through accident prevention