Harmonizing Schedule I Drug Requirements, 40306-40320 [2011-17192]

Download as PDF 40306 Federal Register / Vol. 76, No. 131 / Friday, July 8, 2011 / Proposed Rules This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely proposes to approve or disapprove State rules implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule. F. Executive Order 13175, Coordination With Indian Tribal Governments Executive Order 13175, entitled ‘‘Consultation and Coordination with Indian Tribal Governments’’ (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure ‘‘meaningful and timely input by Tribal officials in the development of regulatory policies that have Tribal implications.’’ This proposed rule does not have Tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on Tribal governments, on the relationship between the Federal government and Indian Tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes. Thus, Executive Order 13175 does not apply to this rule. EPA specifically solicits additional comment on this proposed rule from Tribal officials. G. Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks jlentini on DSK4TPTVN1PROD with PROPOSALS EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5–501 of the Executive Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045, because it approves state rules implementing a Federal standard. H. Executive Order 13211, Actions That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use ‘‘voluntary consensus standards’’ (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical. The EPA believes that VCS are inapplicable to this action. Today’s action does not require the public to perform activities conducive to the use of VCS. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Population Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA lacks the discretionary authority to address environmental justice in this rulemaking. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements. Authority: 42 U.S.C. 7401 et seq. Dated: June 21, 2011. Jared Blumenfeld, Regional Administrator, Region IX. [FR Doc. 2011–17262 Filed 7–7–11; 8:45 am] BILLING CODE 6560–50–P This rule is not subject to Executive Order 13211, ‘‘Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use’’ (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. VerDate Mar<15>2010 17:31 Jul 07, 2011 Jkt 223001 PO 00000 DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Parts 382 and 391 [Docket No. FMCSA–2011–0073] RIN 2126–AB35 Harmonizing Schedule I Drug Requirements Federal Motor Carrier Safety Administration, DOT. ACTION: Notice of proposed rulemaking. AGENCY: The Federal Motor Carrier Safety Administration (FMCSA) proposes to amend the physical qualifications for drivers and the instructions for the medical examination report to clarify that drivers may not use Schedule I drugs and be qualified to drive commercial motor vehicles under any circumstances. The proposal also harmonizes FMCSA’s provisions regarding pre-employment and returnto-duty test refusals with corresponding Department of Transportation (DOT)wide provisions. Finally, the proposal corrects inaccurate uses of the term ‘‘actual knowledge.’’ DATES: Comments and related material must be submitted on or before September 6, 2011. ADDRESSES: You may submit comments identified by docket number FMCSA– 2011–0073 using any one of the following methods: • Federal eRulemaking Portal: https:// www.regulations.gov. • Fax: 202–493–2251. • Mail: Docket Management Facility (M–30), U.S. Department of Transportation, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue, SE., Washington, DC 20590– 0001. • Hand delivery: Same as mail address above, between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays. The telephone number is 202–366–9329. To avoid duplication, please use only one of these four methods. See the ‘‘Public Participation and Request for Comments’’ portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments. SUMMARY: If you have questions on this proposed rule, call or e-mail Angela Ward, Nurse Consultant, Medical Programs Office, Federal Motor Carrier Safety Administration, telephone: 202–366– FOR FURTHER INFORMATION CONTACT: Frm 00025 Fmt 4702 Sfmt 4702 E:\FR\FM\08JYP1.SGM 08JYP1 Federal Register / Vol. 76, No. 131 / Friday, July 8, 2011 / Proposed Rules 3109; e-mail: angela.ward@dot.gov. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202–366– 9826. SUPPLEMENTARY INFORMATION: Table of Contents for Preamble I. Public Participation and Request for Comments A. Submitting Comments B. Viewing Comments and Documents C. Privacy Act II. Abbreviations III. Background A. History B. Legal Authority C. Discussion of Proposed Rule IV. Section-by-Section Analysis V. Regulatory Analyses I. Public Participation and Request for Comments FMCSA encourages you to participate in this rulemaking by submitting comments and related materials. jlentini on DSK4TPTVN1PROD with PROPOSALS A. Submitting Comments If you submit a comment, please include the docket number for this rulemaking (FMCSA–2011–0073), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that the Agency can contact you if it has questions regarding your submission. To submit your comment online, go to https://www.regulations.gov, click on the ‘‘Submit a Comment’’ box, which will then become highlighted in blue. In the ‘‘Document Type’’ drop down menu, select ‘‘Rules,’’ insert ‘‘FMCSA–2011– 0073’’ in the ‘‘Keyword’’ box, and click ‘‘Search.’’ When the new screen appears, click on ‘‘Submit a Comment’’ in the ‘‘Actions’’ column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81⁄2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope. FMCSA will consider all comments and material received during the comment period and may change this proposed rule based on your comments. VerDate Mar<15>2010 17:31 Jul 07, 2011 Jkt 223001 B. Viewing Comments and Documents To view comments, as well as documents mentioned in this preamble as being available in the docket, go to https://www.regulations.gov and click on the ‘‘Read Comments’’ box in the upper right hand side of the screen. Then, in the ‘‘Keyword’’ box, insert ‘‘FMCSA– 2011–0073’’ and click ‘‘Search.’’ Next, click ‘‘Open Docket Folder’’ in the ‘‘Actions’’ column. Finally, in the ‘‘Title’’ column, click on the document you would like 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. C. Privacy Act All comments received will be posted without change to https:// www.regulations.gov and will include any personal information you have provided. Anyone is able to search the electronic form for all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT’s complete Privacy Act Statement in the Federal Register published on January 17, 2008 (73 FR 3316), or you may visit https://edocket. access.gpo.gov/2008/pdf/E8-785.pdf. II. Abbreviations CAA CFR CMV DEA ......... ......... ......... ......... FMCSA .... FR ............ NEPA ....... OTETA ..... U.S.C ....... Clean Air Act. Code of Federal Regulations. Commercial Motor Vehicle. Drug Enforcement Administration. Federal Motor Carrier Safety Administration. Federal Register. National Environmental Policy Act. Omnibus Transportation Employee Testing Act of 1991. United States Code. III. Background A. History The Omnibus Transportation Employee Testing Act of 1991 (OTETA), 49 U.S.C. 31306, mandated that DOT establish a controlled substances (drug) and alcohol testing program applicable to regulated entities and individuals performing safety sensitive functions. Entitled ‘‘Procedures for Transportation Workplace Drug and Alcohol Testing Programs,’’ 49 CFR part 40 contains the DOT regulations that detail how testing PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 40307 must be administered and prescribes procedures to protect the integrity of the process. The FMCSA’s related drug and alcohol testing regulations are in 49 CFR part 382, ‘‘Controlled Substances and Alcohol Use and Testing.’’ DEA implemented the Comprehensive Drug Abuse Prevention and Control Act of 1970, often referred to as the Controlled Substances Act and the Controlled Substances Import and Export Act (21 U.S.C. 801–971), as amended. DEA published regulations implementing these statutes in 21 CFR Parts 1300 to 1399. These regulations are designed to ensure an adequate supply of controlled substances for legitimate medical, scientific, research, and industrial purposes, and to deter the diversion of controlled substances to illegal purposes. Controlled substances are drugs and other substances that have a potential for abuse and psychological and physical dependence. DEA lists controlled substances in 21 CFR part 1308. The substances are divided into five schedules. The substances listed in the schedule that are relevant to this rulemaking, Schedule I, have a high potential for abuse and have no currently accepted medical use in the United States (DEA Interim Final Rule on Electronic Prescriptions for Controlled Substances, 75 FR 16237, March 31, 2010). These substances may only be used for research, chemical analysis, or manufacture of other drugs. Section 382.213 prohibits commercial motor vehicle (CMV) drivers from using any controlled substances when on duty or reporting for duty except when prescribed by a licensed medical practitioner who has advised the driver that the prescribed substance will not adversely affect the driver’s ability to operate a CMV. Section 382.213 has remained largely unchanged since its adoption in 1994, outside of a technical amendment changing the term ‘‘physician’’ to ‘‘licensed medical practitioner’’ for the purpose of the prescription exception (61 FR 9556, March 8, 1996). In addition to those in part 382, FMCSA has several other regulations governing drivers’ use of drugs. Section 391.41(b)(12) was first promulgated in 1970, and stated that persons who ‘‘use an amphetamine, narcotic, or any habitforming drug, are not medically qualified to operate a commercial motor vehicle’’ (35 FR 6463, April 22, 1970). Section 391.43(f) incorporates the substance of § 391.41(b)(12) in the instructions to the medical examiner. Section 391.41(b)(12) was revised several times, most notably in 1984, when the DEA’s Schedule I drugs were added to the list of drugs prohibited by E:\FR\FM\08JYP1.SGM 08JYP1 40308 Federal Register / Vol. 76, No. 131 / Friday, July 8, 2011 / Proposed Rules jlentini on DSK4TPTVN1PROD with PROPOSALS § 391.41(b)(12) (49 FR 44215, November 5, 1984). Sections 382.213 and 391.41(b)(12) were designed to complement § 392.4, which prohibits the use of drugs by CMV drivers. Section 392.4 contains an exception for use of non-Schedule I drugs ‘‘administered to a driver by or under the instructions of a licensed medical practitioner, as defined in § 382.107 of this subchapter, who has advised the driver that the substance will not affect the driver’s ability to safely operate a motor vehicle’’ (49 CFR 392.4). B. Legal Authority FMCSA has general authority to promulgate safety standards, including those governing drivers’ use of drugs while operating a CMV. The Motor Carrier Safety Act of 1984 (Pub. L. 98– 554, Title II, 98 Stat. 2832, October 30, 1984) (the 1984 Act) provides authority to regulate drivers, motor carriers, and vehicle equipment. It requires the Secretary to ensure that—(1) CMVs are maintained, equipped, loaded, and operated safely; (2) the responsibilities imposed on operators of CMVs do not impair their ability to operate the vehicles safely; (3) the physical condition of CMV operators is adequate to enable them to operate the vehicles safely; and (4) the operation of CMVs does not have a deleterious effect on the physical condition of the operators (49 U.S.C. 31136(a)). Section 211 of the 1984 Act also grants the Secretary broad power in carrying out motor carrier safety statutes and regulations to ‘‘prescribe recordkeeping and reporting requirements’’ and to ‘‘perform other acts the Secretary considers appropriate’’ (49 U.S.C. 31133(a)(8) and (10)). The FMCSA Administrator has been delegated authority under 49 CFR 1.73(g) to carry out the functions vested in the Secretary of Transportation by 49 U.S.C. chapter 311, subchapters I and III, relating to CMV programs and safety regulation. As stated above, OTETA (Pub. L. 102– 143, Title V, 105 Stat. 917, at 952, Oct. 28, 1991, codified at 49 U.S.C. 31306), mandated the alcohol and controlled substances (drug) testing program for DOT. OTETA required the Secretary of Transportation to promulgate regulations for alcohol and controlled substances testing for persons in safetysensitive positions in four modes of transportation—motor carrier, airline, railroad, and mass transit. Those regulations, including subsequent amendments, are codified at 49 CFR part 40, ‘‘Procedures for Transportation Workplace Drug and Alcohol Testing Programs.’’ Part 40 prescribes drug and VerDate Mar<15>2010 17:31 Jul 07, 2011 Jkt 223001 alcohol testing requirements for all DOT-regulated parties, including employers of drivers with commercial driver’s licenses subject to FMCSA testing requirements. FMCSA’s related drug and alcohol testing regulations are in 49 CFR part 382, ‘‘Controlled Substances and Alcohol Use and Testing.’’ C. Discussion of the Proposed Rule This rulemaking is necessary to reconcile and resolve a perceived inconsistency among: §§ 382.213, 391.41(b)(12), 391.43(f), and 392.4 of the Federal Motor Carrier Safety Regulations (FMCSRs); DOT-wide drug regulations in part 40; and DEA regulations. Although § 392.4 clearly prohibits drivers from using Schedule I drugs, it has come to FMCSA’s attention that some people might interpret §§ 382.213, 391.41(b)(12) and 391.43(f) to permit their use if recommended by a licensed medical practitioner. The FMCSA has always considered §§ 382.213, 391.41(b)(12), 391.43(f), and 392.4 to prohibit any and all use of Schedule I drugs by CMV drivers. In fact, Federal law prohibits Schedule I drugs from being prescribed in the United States (75 FR 16237, March 31, 2010). Schedule I drugs have a high potential for abuse and no medically accepted therapeutic use (id.). Currently, Federal law only allows for their use in research, chemical analysis, or manufacture of other drugs (id.). In certain circumstances, a medical review officer can verify a drug test negative when he or she has information that a driver is using a drug under a physician’s prescription. However, under DOT-wide rules, no medical review officer may verify a drug test negative for a Schedule I drug, even if he or she has information that a driver is using the Schedule I drug in accordance with a physician’s recommendation (49 CFR 40.151(e)). Interpreting FMCSA’s regulations to permit drivers to use Schedule I drugs would put the FMCSRs in direct conflict with DOT’s comprehensive drug testing program under 49 CFR part 40, which does not permit drivers to use Schedule I drugs. The FMCSA does not believe this is a reasonable interpretation of the regulations. Regardless, to avoid any confusion, this rulemaking would harmonize §§ 382.213, 391.41(b)(12), 391.43(f), and 392.4 with DOT-wide regulations and DEA regulations, and make it clear that drivers may not use Schedule I drugs under any circumstances. In addition, 49 CFR 382.211 prohibits drivers from refusing to submit to certain types of drug or alcohol tests and PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 establishes such refusals as violations of FMCSA’s drug and alcohol regulations. Currently, under DOT-wide regulations, drivers who refuse to submit to preemployment and return-to-duty tests must complete the return-to-duty process prescribed in part 40, subpart O. However, § 382.211 is inconsistent with the DOT-wide drug and alcohol rules in that it does not include refusals to submit to pre-employment and returnto-duty tests as violations. The FMCSA proposes to correct this inconsistency by adding these two types of refusals to the prohibitions at § 382.211. Finally, FMCSA proposes changes to 49 CFR 382.201 and 382.215 to clarify the Agency’s rules prohibiting an employer from using a driver about whom the employer has actual knowledge of drug or alcohol use, as defined at § 382.107. Sections 382.201 and 382.215 currently state that an employer may not allow an employee to perform safety-sensitive functions if the employer has actual knowledge that the employee has tested positive for drugs or has an alcohol concentration of .04 or greater. However, the term ‘‘actual knowledge’’ is defined in § 382.107 to mean the observation of alcohol or controlled substances use, and is not intended to refer to testing results. As a result, the use of the term ‘‘actual knowledge’’ in these sections is not appropriate. FMCSA proposes to replace the term ‘‘actual knowledge’’ with ‘‘knowledge’’ in these sections. This should clarify that these prohibitions refer to the knowledge of test results, not employer observation of prohibited conduct. IV. Section-by-Section Analysis Sections 382.201 and 382.215 An employer has ‘‘actual knowledge’’ that an employee has used drugs or alcohol in violation of FMCSA rules when he or she directly observes or otherwise learns that a driver is using controlled substances or consuming alcohol while on duty (49 CFR 382.107). Actual knowledge, as defined at § 382.107, is distinct from an employer knowing that his or her employee-driver tested positive or refused a DOT drug or alcohol test. Because §§ 382.201 and 382.215 set forth prohibitions related to an employer’s knowledge related to testing, not observation, the use of the term ‘‘actual knowledge’’ is not appropriate. The FMCSA proposes to replace the term ‘‘actual knowledge’’ with ‘‘knowledge’’ in these sections. This would clarify that these prohibitions refer to the knowledge of test results, not employer observation of prohibited conduct. E:\FR\FM\08JYP1.SGM 08JYP1 Federal Register / Vol. 76, No. 131 / Friday, July 8, 2011 / Proposed Rules Current § 382.211 prohibits drivers from refusing to submit to a postaccident, random, or reasonable suspicion drug or alcohol test. The Agency proposes to amend § 382.211 to also prohibit refusals for preemployment testing and return-to-duty testing. This would make this regulation consistent with 49 CFR 40.191(a)(3). practitioner who is familiar with the driver’s medical history and has advised the driver that the prescribed substance or drug will not adversely affect the driver’s ability to safely operate a CMV. The Agency proposes to amend these sections to clarify that this exception only applies to non-Schedule I prescribed substances, amphetamines, narcotics, or other habit-forming drugs. Section 382.213 V. Regulatory Analyses Section 382.213 currently prohibits CMV drivers from using any drugs when on duty or reporting for duty except when prescribed by a licensed medical practitioner who has advised the driver that the prescribed substance will not adversely affect the driver’s ability to operate a CMV. The Agency proposes to amend the language regarding the drugs that CMV drivers are prohibited from using in order to differentiate between Schedule I drugs and non-Schedule I drugs. The proposed changes would make it clear that Schedule I drugs may not be used by a CMV driver under any circumstances. The FMCSA’s regulations would continue to permit the use of non-Schedule I drugs under limited circumstances, when prescribed by a licensed medical practitioner. Regulatory Planning and Review Section 382.211 jlentini on DSK4TPTVN1PROD with PROPOSALS Sections 391.41 and 391.43 Section 391.41(b)(12)(i) currently states that a driver may not use: Controlled substances on the DEA Schedule I, amphetamines, narcotics, or other habit-forming drugs. Section 391.41(b)(12)(ii) contains an exception for a substance or drug prescribed by a licensed medical practitioner who is familiar with the driver’s history and work duties and has advised the driver that the prescribed substance or drug will not adversely affect his or her ability to safely operate a CMV. The FMCSA has never considered this exception to permit use of Schedule I drugs by CMV drivers under any circumstance because Federal law prohibits Schedule I drugs from being prescribed in the United States (75 FR 16237, March 31, 2010). Section 391.43(f) incorporates the substance of § 391.41(b)(12) into pages 4 and 8 of the Instructions to the Medical Examiner. The FMCSA makes no others changes to this document. Section 391.41(b)(12) and the Instructions for Medical Examiners at § 391.43(f) currently do not differentiate between Schedule I and non-Schedule I drugs for the purpose of the prescription exception. The prescription exception currently states that a CMV driver may use a substance or drug that is prescribed by a licensed medical VerDate Mar<15>2010 17:31 Jul 07, 2011 Jkt 223001 This action does not meet the criteria for a ‘‘significant regulatory action,’’ either as specified in Executive Order 12866 as supplemented by Executive Order 13563 (76 FR 3821, January 18, 2011) or within the meaning of the DOT regulatory policies and procedures (44 FR 1103, February 26, 1979). The estimated economic costs of the proposed rule do not exceed the $100 million annual threshold nor does the Agency expect the proposed rule to have substantial Congressional or public interest. Therefore, this proposed rule has not been formally reviewed by the Office of Management and Budget. No expenditures would be required of the affected population because the proposed rule would only clarify existing rules, amend inconsistencies in FMCSA’s current regulations, and harmonize them with the DOT-wide regulations and DEA regulations. Regulatory Flexibility Act The Regulatory Flexibility Act of 1980 (5 U.S.C. 601–612) requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. The term ‘‘small entities’’ comprises small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields, as well as governmental jurisdictions with populations of less than 50,000. Accordingly, DOT policy requires an analysis of the impact of all regulations on small entities and mandates that agencies strive to lessen any adverse effects on these businesses. Under the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, the proposed rule is not expected to have a significant economic impact on a substantial number of small entities because the proposed rule would only clarify existing rules, amend inconsistencies in FMCSA’s current regulations, and harmonize them with the DOT-wide regulations and DEA regulations. Accordingly, I certify that a PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 40309 regulatory flexibility analysis is not necessary. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), FMCSA wants to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking initiative. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult the FMCSA point of contact, Angela Ward, listed in the FOR FURTHER INFORMATION CONTACT section of this proposed rule. FMCSA will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Agency. Small businesses may send comments on the actions of Federal employees who enforce or otherwise determine compliance with Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency’s responsiveness to small business. If you wish to comment on actions by employees of FMCSA, call 1–888–REG– FAIR (1–888–734–3247). Unfunded Mandates Reform Act of 1995 The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $140.8 million (which is the value of $100 million in 2010 after adjusting for inflation) or more in any 1 year. This proposed rule would not result in such expenditure; FMCSA expects the effects of this proposed rule to be minimal because the proposed rule would only clarify existing rules, amend inconsistencies in FMCSA’s current regulations, and harmonize them with the DOT-wide regulations and DEA regulations. Paperwork Reduction Act This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). E:\FR\FM\08JYP1.SGM 08JYP1 40310 Federal Register / Vol. 76, No. 131 / Friday, July 8, 2011 / Proposed Rules Privacy Impact Assessment FMCSA conducted a Privacy Threshold Analysis for the Notice of Proposed Rulemaking (NPRM) and determined that this proposed rule is not a privacy-sensitive rulemaking because if promulgated as a final rule it would not require any collection, maintenance, or dissemination of Personally Identifiable Information from or about members of the public. Executive Order 13132 (Federalism) A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on States or localities. FMCSA has analyzed this proposed rule under that Order and has determined that it does not have implications for federalism. Executive Order 12630 (Taking of Private Property) This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Executive Order 12988 (Civil Justice Reform) This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. jlentini on DSK4TPTVN1PROD with PROPOSALS Executive Order 13045 (Protection of Children) FMCSA has analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This proposed rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Executive Order 13211 (Energy Effects) FMCSA has analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Agency has determined that it is not a ‘‘significant energy action’’ under that order because it is not a ‘‘significant regulatory action’’ under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. VerDate Mar<15>2010 17:31 Jul 07, 2011 Jkt 223001 Technical Standards List of Subjects The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This proposed rule does not use technical standards. Therefore, FMCSA did not consider the use of voluntary consensus standards. 49 CFR Part 382 Administrative practice and procedure, Alcohol abuse, Drug abuse, Drug testing, Highway safety, Motor carriers, Penalties, Safety, Transportation. National Environmental Policy Act FMCSA analyzed this NPRM for the purpose of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and determined under our environmental procedures Order 5610.1, published February 24, 2004 (69 FR 9680), that this proposed action does not have any effect on the quality of the environment. Therefore, this NPRM is categorically excluded from further analysis and documentation in an environmental assessment or environmental impact statement under FMCSA Order 5610.1, paragraph 6(r) of Appendix 2. The Categorical Exclusion under paragraph 6(y)(6) relates to ‘‘regulations implementing employer controlled substances and alcohol use and testing procedures * * *,’’ which is the focus of this rulemaking. A Categorical Exclusion determination is available for inspection or copying in the regulations.gov Web site listed under ADDRESSES. In addition to the NEPA requirements to examine impacts on air quality, the Clean Air Act (CAA) as amended (42 U.S.C. 7401 et seq.) also requires FMCSA to analyze the potential impact of its actions on air quality and to ensure that FMCSA actions conform to State and local air quality implementation plans. The additional contributions to air emissions are expected to fall within the CAA de minimis standards and are not expected to be subject to the Environmental Protection Agency’s General Conformity Rule (40 CFR parts 51 and 93). FMCSA seeks comment on these determinations. PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 49 CFR Part 391 Alcohol abuse, Drug abuse, Drug testing, Highway safety, Motor carriers, Reporting and recordkeeping requirements, Safety, Transportation. For the reasons stated in the preamble, FMCSA proposes to amend 49 CFR, parts 382 and 391 as follows: PART 382—CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING 1. The authority citation for part 382 continues to read as follows: Authority: 49 U.S.C. 31133, 31136, 31301 et seq., 31502; and 49 CFR 1.73. § 382.201 [Amended] 2. Amend § 382.201 by removing the word ‘‘actual’’ between the words ‘‘having’’ and ‘‘knowledge.’’ 3. Revise § 382.211 to read as follows: § 382.211 Refusal to submit to a required alcohol or controlled substances test. No driver shall refuse to submit to a pre-employment controlled substance test required under § 382.301, a postaccident alcohol or controlled substance test required under § 382.303, a random alcohol or controlled substances test required under § 382.305, a reasonable suspicion alcohol or controlled substance test required under § 382.307, a return-to-duty alcohol or controlled substances test required under § 382.309, or a follow-up alcohol or controlled substance test required under § 382.311. No employer shall permit a driver who refuses to submit to such tests to perform or continue to perform safety-sensitive functions. 4. Revise § 382.213 to read as follows: § 382.213 Controlled substance use. (a) No driver shall report for duty or remain on duty requiring the performance of safety sensitive functions when the driver uses any controlled substance identified in 21 CFR 1308.11. (b) No driver shall report for duty or remain on duty requiring the performance of safety-sensitive functions when the driver uses any nonSchedule I drug except when the use is pursuant to the instructions of a licensed medical practitioner, as defined in § 382.107, who is familiar with the driver’s medical history and E:\FR\FM\08JYP1.SGM 08JYP1 40311 Federal Register / Vol. 76, No. 131 / Friday, July 8, 2011 / Proposed Rules has advised the driver that the substance will not adversely affect the driver’s ability to safely operate a commercial motor vehicle. (c) No employer having actual knowledge that a driver has used a controlled substance shall permit the driver to perform or continue to perform a safety-sensitive function. (d) An employer may require a driver to inform the employer of any therapeutic drug use. § 382.215 [Amended] 5. Amend § 382.215 by removing the word ‘‘actual’’ between the words ‘‘having’’ and ‘‘knowledge.’’ PART 391—QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS jlentini on DSK4TPTVN1PROD with PROPOSALS 6. The authority citation for part 391 continues to read as follows: VerDate Mar<15>2010 17:31 Jul 07, 2011 Jkt 223001 Authority: 49 U.S.C. 322, 504, 508, 31133, 31136, and 31502; sec. 4007(b) of Pub. L. 102–240, 105 Stat. 2152; sec. 114 of Pub. L. 103–311, 108 Stat. 1673, 1677; sec. 215 of Pub. L. 106–159, 113 Stat. 1767; and 49 CFR 1.73. 7. Amend § 391.41 by revising paragraphs (b)(12)(i) and (ii) to read as follows: § 391.41 drivers. Physical qualifications for * * * * * (b) * * * (12)(i) Does not use any controlled substance identified in 21 CFR 1308.11 Schedule I, an amphetamine, a narcotic, or other habit-forming drug. (ii) Does not use any non-Schedule I controlled substance except when the use is pursuant to the instructions of a licensed medical practitioner, as defined in § 382.107, who is familiar with the driver’s medical history and PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 has advised the driver that the substance will not adversely affect the driver’s ability to safely operate a commercial motor vehicle. * * * * * 8. Amend § 391.43(f) by removing the Medical Examination Report for Commercial Driver Fitness Determination, form 649–F (6045), and adding in its place the following form, to read as follows: § 391.43 Medical examination; certificate of physical examination. * * * (f) * * * * BILLING CODE 4910–EX–P E:\FR\FM\08JYP1.SGM 08JYP1 * VerDate Mar<15>2010 Federal Register / Vol. 76, No. 131 / Friday, July 8, 2011 / Proposed Rules 17:31 Jul 07, 2011 Jkt 223001 PO 00000 Frm 00031 Fmt 4702 Sfmt 4725 E:\FR\FM\08JYP1.SGM 08JYP1 EP08JY11.004</GPH> jlentini on DSK4TPTVN1PROD with PROPOSALS 40312 VerDate Mar<15>2010 17:31 Jul 07, 2011 Jkt 223001 PO 00000 Frm 00032 Fmt 4702 Sfmt 4725 E:\FR\FM\08JYP1.SGM 08JYP1 40313 EP08JY11.005</GPH> jlentini on DSK4TPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 131 / Friday, July 8, 2011 / Proposed Rules VerDate Mar<15>2010 Federal Register / Vol. 76, No. 131 / Friday, July 8, 2011 / Proposed Rules 17:31 Jul 07, 2011 Jkt 223001 PO 00000 Frm 00033 Fmt 4702 Sfmt 4725 E:\FR\FM\08JYP1.SGM 08JYP1 EP08JY11.006</GPH> jlentini on DSK4TPTVN1PROD with PROPOSALS 40314 VerDate Mar<15>2010 17:31 Jul 07, 2011 Jkt 223001 PO 00000 Frm 00034 Fmt 4702 Sfmt 4725 E:\FR\FM\08JYP1.SGM 08JYP1 40315 EP08JY11.007</GPH> jlentini on DSK4TPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 131 / Friday, July 8, 2011 / Proposed Rules VerDate Mar<15>2010 Federal Register / Vol. 76, No. 131 / Friday, July 8, 2011 / Proposed Rules 17:31 Jul 07, 2011 Jkt 223001 PO 00000 Frm 00035 Fmt 4702 Sfmt 4725 E:\FR\FM\08JYP1.SGM 08JYP1 EP08JY11.008</GPH> jlentini on DSK4TPTVN1PROD with PROPOSALS 40316 VerDate Mar<15>2010 17:31 Jul 07, 2011 Jkt 223001 PO 00000 Frm 00036 Fmt 4702 Sfmt 4725 E:\FR\FM\08JYP1.SGM 08JYP1 40317 EP08JY11.009</GPH> jlentini on DSK4TPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 131 / Friday, July 8, 2011 / Proposed Rules VerDate Mar<15>2010 Federal Register / Vol. 76, No. 131 / Friday, July 8, 2011 / Proposed Rules 17:31 Jul 07, 2011 Jkt 223001 PO 00000 Frm 00037 Fmt 4702 Sfmt 4725 E:\FR\FM\08JYP1.SGM 08JYP1 EP08JY11.010</GPH> jlentini on DSK4TPTVN1PROD with PROPOSALS 40318 VerDate Mar<15>2010 17:31 Jul 07, 2011 Jkt 223001 PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 E:\FR\FM\08JYP1.SGM 08JYP1 40319 EP08JY11.011</GPH> jlentini on DSK4TPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 131 / Friday, July 8, 2011 / Proposed Rules 40320 Federal Register / Vol. 76, No. 131 / Friday, July 8, 2011 / Proposed Rules BILLING CODE 4910–EX–C * * * * * Issued on: July 5, 2011. William Bronrott, Deputy Administrator. [FR Doc. 2011–17192 Filed 7–7–11; 8:45 am] BILLING CODE 4910–EX–P DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Chapter II [Docket No. FRA–2009–0038] RIN 2130–AC11 Risk Reduction Program Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Notice of public hearings. AGENCY: FRA is announcing public hearings to provide interested persons an opportunity to discuss the development of a regulation requiring certain railroads to develop a Risk Reduction Program (RRP). The Rail Safety Improvement Act of 2008 requires the development and implementation of railroad safety risk reduction programs. Risk reduction is a comprehensive, system-oriented approach to safety that (1) determines an operation’s level of risk by identifying and analyzing applicable hazards and (2) develops plans to mitigate that risk. Each RRP is statutorily required to be supported by a risk analysis and a Risk Reduction Program Plan (RRPP), which must include a Technology Implementation Plan and a Fatigue Management Plan. DATES: To encourage participation, two public hearings will be held. A public hearing will be held on July 19, 2011, in Chicago, and a public hearing will be held on July 21, 2011, in Washington, DC. At both locations, the times of the public hearings will be from 9 a.m. to 4 p.m. ADDRESSES: Public Hearings. The public hearing in Chicago will be held at the W Chicago City Center Hotel located at 172 West Adams, in the Great Room I, Plateau. The public hearing in Washington, DC, will be held at the Doubletree Hotel located at 1515 Rhode Island Avenue, NW., in the Terrace Ballroom. Attendance: Any persons wishing to make a statement at the hearing should notify FRA’s Docket Clerk, Michelle Silva, by telephone, e-mail, or in writing, at least five business days before the date of the hearing. Ms. jlentini on DSK4TPTVN1PROD with PROPOSALS SUMMARY: VerDate Mar<15>2010 17:31 Jul 07, 2011 Jkt 223001 Silva’s contact information is as follows: FRA, Office of Chief Counsel, Mail Stop 10, 1200 New Jersey Avenue, SE., Washington, DC 20590; telephone: 202– 493–6030; e-mail: michelle.silva@dot.gov. For information on facilities or services for persons with disabilities or to request special assistance at the meetings, please contact by telephone or e-mail as soon as possible, Wendy A. Noble Burns at 202–493–6304 or wendy.noble@dot.gov. FOR FURTHER INFORMATION CONTACT: Miriam Kloeppel, Staff Director, Risk Reduction Program Division, Office of Safety Analysis, FRA, 1200 New Jersey Avenue, SE., Mail Stop 25, Washington, DC 20590; telephone: 202–493–6224; email: miriam.kloeppel@dot.gov; or Matthew L. Navarrete, Trial Attorney, Office of Chief Counsel, FRA, 1200 New Jersey Avenue, SE., Mail Stop 10, Washington, DC 20590; telephone: 202– 493–0138; e-mail: matthew.navarrete@dot.gov. SUPPLEMENTARY INFORMATION: Interested parties are invited to present oral statements and to proffer information and views at the hearings. The hearings will be informal and will be conducted by a representative designated by FRA in accordance with FRA’s Rules of Practice (49 CFR 211.25). The hearings will be non-adversarial proceedings; therefore, there will be no cross examination of persons presenting statements or proffering evidence. An FRA representative will make an opening statement outlining the scope of each hearing. After all initial statements have been completed, those persons wishing to make a brief rebuttal will be given the opportunity to do so in the same order in which the initial statements were made. Additional procedures, as necessary for the conduct of the hearings, will be announced at the hearings. The purpose of these hearings is to receive oral comments in response to an Advanced Notice of Proposed Rulemaking (ANPRM) that requested public comment on a potential risk reduction rulemaking. See 75 FR 76345–76351, Dec. 8, 2010. A transcript of the discussions will be made part of the public docket in this proceeding. Public Participation Procedures. Any person wishing to participate in one of the public hearings should notify the Docket Clerk by mail or at the address or fax number provided in the Attendance section at least five working days prior to the date of the hearing and submit three copies of the oral statement that he or she intends to make at the proceeding. The notification should identify the party the person represents, PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 the particular subject(s) the person plans to address, and the time requested. The notification should also provide the Docket Clerk with the participant’s mailing address and other contact information. FRA reserves the right to limit participation in the hearings of persons who fail to provide such notification. FRA reserves the right to limit the duration of presentations if necessary to afford all persons with the opportunity to speak. Background In § 103 of the Rail Safety Improvement Act of 2008, Public Law 110–432, 122 Stat. 4854 (Oct. 16, 2008) (codified at 49 U.S.C. 20156) (hereinafter RSIA), Congress directed the Secretary of Transportation to issue a regulation by October 16, 2012, requiring certain railroads to develop an RRP. While the statute vests certain responsibilities with the Secretary of the U.S. DOT (Secretary), the Secretary has since delegated those responsibilities to the FRA Administrator. See 49 CFR 1.49(oo); 74 FR 26981 (June 5, 2009); see also 49 U.S.C. 103(g). Each railroad subject to the regulation would have to develop and implement an RRP approved by FRA. See 49 U.S.C. 20156(a)(1). This RRP is required to be supported by an RRPP. See 49 U.S.C. 20156(d)(2). FRA would conduct an annual review to ensure that each railroad has complied with its RRP. See 49 U.S.C. 20156(a)(3). The RSIA mandates that the following three categories of railroads be required to develop and implement an FRAapproved RRP: (1) Class I railroads; (2) Railroad carriers with inadequate safety performance, as determined by the Secretary; and (3) Railroad carriers that provide intercity rail passenger or commuter rail passenger transportation (passenger railroads). See 49 U.S.C. 20156(a)(1). Railroads not required to implement RRPs under the RSIA would be permitted to voluntarily submit plans meeting the requirements of any final RRP regulation for FRA review and approval. See 49 U.S.C. 20156(a)(4). On December 8, 2010, FRA published an ANPRM soliciting public comment on how FRA can best develop a risk reduction regulation based upon the RSIA’s requirements. See 75 FR 76345– 76351. The ANPRM discussed certain major components that must be included in the final rule under the RSIA and identified various approaches that FRA could take in developing the rule. The purpose of these hearings is to E:\FR\FM\08JYP1.SGM 08JYP1

Agencies

[Federal Register Volume 76, Number 131 (Friday, July 8, 2011)]
[Proposed Rules]
[Pages 40306-40320]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-17192]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 382 and 391

[Docket No. FMCSA-2011-0073]
RIN 2126-AB35

Harmonizing Schedule I Drug Requirements

AGENCY: Federal Motor Carrier Safety Administration, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA)
proposes to amend the physical qualifications for drivers and the
instructions for the medical examination report to clarify that drivers
may not use Schedule I drugs and be qualified to drive commercial motor
vehicles under any circumstances. The proposal also harmonizes FMCSA's
provisions regarding pre-employment and return-to-duty test refusals
with corresponding Department of Transportation (DOT)-wide provisions.
Finally, the proposal corrects inaccurate uses of the term ``actual
knowledge.''

DATES: Comments and related material must be submitted on or before
September 6, 2011.

ADDRESSES: You may submit comments identified by docket number FMCSA-
2011-0073 using any one of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Fax: 202-493-2251.
Mail: Docket Management Facility (M-30), U.S. Department
of Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590-0001.
Hand delivery: Same as mail address above, between 9 a.m.
and 5 p.m., e.t., Monday through Friday, except Federal holidays. The
telephone number is 202-366-9329.
To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section below for instructions on
submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed
rule, call or e-mail Angela Ward, Nurse Consultant, Medical Programs
Office, Federal Motor Carrier Safety Administration, telephone: 202-
366-

[[Page 40307]]

3109; e-mail: angela.ward@dot.gov. If you have questions on viewing or
submitting material to the docket, call Renee V. Wright, Program
Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Public Participation and Request for Comments
A. Submitting Comments
B. Viewing Comments and Documents
C. Privacy Act
II. Abbreviations
III. Background
A. History
B. Legal Authority
C. Discussion of Proposed Rule
IV. Section-by-Section Analysis
V. Regulatory Analyses

I. Public Participation and Request for Comments

FMCSA encourages you to participate in this rulemaking by
submitting comments and related materials.

A. Submitting Comments

If you submit a comment, please include the docket number for this
rulemaking (FMCSA-2011-0073), indicate the specific section of this
document to which each comment applies, and provide a reason for each
suggestion or recommendation. You may submit your comments and material
online or by fax, mail, or hand delivery, but please use only one of
these means. FMCSA recommends that you include your name and a mailing
address, an e-mail address, or a phone number in the body of your
document so that the Agency can contact you if it has questions
regarding your submission.
To submit your comment online, go to https://www.regulations.gov,
click on the ``Submit a Comment'' box, which will then become
highlighted in blue. In the ``Document Type'' drop down menu, select
``Rules,'' insert ``FMCSA-2011-0073'' in the ``Keyword'' box, and click
``Search.'' When the new screen appears, click on ``Submit a Comment''
in the ``Actions'' column. If you submit your comments by mail or hand
delivery, submit them in an unbound format, no larger than 8\1/2\ by 11
inches, suitable for copying and electronic filing. If you submit
comments by mail and would like to know that they reached the facility,
please enclose a stamped, self-addressed postcard or envelope.
FMCSA will consider all comments and material received during the
comment period and may change this proposed rule based on your
comments.

B. Viewing Comments and Documents

To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to https://www.regulations.gov and
click on the ``Read Comments'' box in the upper right hand side of the
screen. Then, in the ``Keyword'' box, insert ``FMCSA-2011-0073'' and
click ``Search.'' Next, click ``Open Docket Folder'' in the ``Actions''
column. Finally, in the ``Title'' column, click on the document you
would like 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.

C. Privacy Act

All comments received will be posted without change to https://www.regulations.gov and will include any personal information you have
provided. Anyone is able to search the electronic form for all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
January 17, 2008 (73 FR 3316), or you may visit https://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.

II. Abbreviations

------------------------------------------------------------------------

------------------------------------------------------------------------
CAA........................... Clean Air Act.
CFR........................... Code of Federal Regulations.
CMV........................... Commercial Motor Vehicle.
DEA........................... Drug Enforcement Administration.
FMCSA......................... Federal Motor Carrier Safety
Administration.
FR............................ Federal Register.
NEPA.......................... National Environmental Policy Act.
OTETA......................... Omnibus Transportation Employee Testing
Act of 1991.
U.S.C......................... United States Code.
------------------------------------------------------------------------

III. Background

A. History

The Omnibus Transportation Employee Testing Act of 1991 (OTETA), 49
U.S.C. 31306, mandated that DOT establish a controlled substances
(drug) and alcohol testing program applicable to regulated entities and
individuals performing safety sensitive functions. Entitled
``Procedures for Transportation Workplace Drug and Alcohol Testing
Programs,'' 49 CFR part 40 contains the DOT regulations that detail how
testing must be administered and prescribes procedures to protect the
integrity of the process. The FMCSA's related drug and alcohol testing
regulations are in 49 CFR part 382, ``Controlled Substances and Alcohol
Use and Testing.''
DEA implemented the Comprehensive Drug Abuse Prevention and Control
Act of 1970, often referred to as the Controlled Substances Act and the
Controlled Substances Import and Export Act (21 U.S.C. 801-971), as
amended. DEA published regulations implementing these statutes in 21
CFR Parts 1300 to 1399. These regulations are designed to ensure an
adequate supply of controlled substances for legitimate medical,
scientific, research, and industrial purposes, and to deter the
diversion of controlled substances to illegal purposes. Controlled
substances are drugs and other substances that have a potential for
abuse and psychological and physical dependence. DEA lists controlled
substances in 21 CFR part 1308. The substances are divided into five
schedules. The substances listed in the schedule that are relevant to
this rulemaking, Schedule I, have a high potential for abuse and have
no currently accepted medical use in the United States (DEA Interim
Final Rule on Electronic Prescriptions for Controlled Substances, 75 FR
16237, March 31, 2010). These substances may only be used for research,
chemical analysis, or manufacture of other drugs.
Section 382.213 prohibits commercial motor vehicle (CMV) drivers
from using any controlled substances when on duty or reporting for duty
except when prescribed by a licensed medical practitioner who has
advised the driver that the prescribed substance will not adversely
affect the driver's ability to operate a CMV. Section 382.213 has
remained largely unchanged since its adoption in 1994, outside of a
technical amendment changing the term ``physician'' to ``licensed
medical practitioner'' for the purpose of the prescription exception
(61 FR 9556, March 8, 1996).
In addition to those in part 382, FMCSA has several other
regulations governing drivers' use of drugs. Section 391.41(b)(12) was
first promulgated in 1970, and stated that persons who ``use an
amphetamine, narcotic, or any habit-forming drug, are not medically
qualified to operate a commercial motor vehicle'' (35 FR 6463, April
22, 1970). Section 391.43(f) incorporates the substance of Sec.
391.41(b)(12) in the instructions to the medical examiner. Section
391.41(b)(12) was revised several times, most notably in 1984, when the
DEA's Schedule I drugs were added to the list of drugs prohibited by

[[Page 40308]]

Sec. 391.41(b)(12) (49 FR 44215, November 5, 1984). Sections 382.213
and 391.41(b)(12) were designed to complement Sec. 392.4, which
prohibits the use of drugs by CMV drivers. Section 392.4 contains an
exception for use of non-Schedule I drugs ``administered to a driver by
or under the instructions of a licensed medical practitioner, as
defined in Sec. 382.107 of this subchapter, who has advised the driver
that the substance will not affect the driver's ability to safely
operate a motor vehicle'' (49 CFR 392.4).

B. Legal Authority

FMCSA has general authority to promulgate safety standards,
including those governing drivers' use of drugs while operating a CMV.
The Motor Carrier Safety Act of 1984 (Pub. L. 98-554, Title II, 98
Stat. 2832, October 30, 1984) (the 1984 Act) provides authority to
regulate drivers, motor carriers, and vehicle equipment. It requires
the Secretary to ensure that--(1) CMVs are maintained, equipped,
loaded, and operated safely; (2) the responsibilities imposed on
operators of CMVs do not impair their ability to operate the vehicles
safely; (3) the physical condition of CMV operators is adequate to
enable them to operate the vehicles safely; and (4) the operation of
CMVs does not have a deleterious effect on the physical condition of
the operators (49 U.S.C. 31136(a)). Section 211 of the 1984 Act also
grants the Secretary broad power in carrying out motor carrier safety
statutes and regulations to ``prescribe recordkeeping and reporting
requirements'' and to ``perform other acts the Secretary considers
appropriate'' (49 U.S.C. 31133(a)(8) and (10)).
The FMCSA Administrator has been delegated authority under 49 CFR
1.73(g) to carry out the functions vested in the Secretary of
Transportation by 49 U.S.C. chapter 311, subchapters I and III,
relating to CMV programs and safety regulation.
As stated above, OTETA (Pub. L. 102-143, Title V, 105 Stat. 917, at
952, Oct. 28, 1991, codified at 49 U.S.C. 31306), mandated the alcohol
and controlled substances (drug) testing program for DOT. OTETA
required the Secretary of Transportation to promulgate regulations for
alcohol and controlled substances testing for persons in safety-
sensitive positions in four modes of transportation--motor carrier,
airline, railroad, and mass transit. Those regulations, including
subsequent amendments, are codified at 49 CFR part 40, ``Procedures for
Transportation Workplace Drug and Alcohol Testing Programs.'' Part 40
prescribes drug and alcohol testing requirements for all DOT-regulated
parties, including employers of drivers with commercial driver's
licenses subject to FMCSA testing requirements. FMCSA's related drug
and alcohol testing regulations are in 49 CFR part 382, ``Controlled
Substances and Alcohol Use and Testing.''

C. Discussion of the Proposed Rule

This rulemaking is necessary to reconcile and resolve a perceived
inconsistency among: Sec. Sec. 382.213, 391.41(b)(12), 391.43(f), and
392.4 of the Federal Motor Carrier Safety Regulations (FMCSRs); DOT-
wide drug regulations in part 40; and DEA regulations. Although Sec.
392.4 clearly prohibits drivers from using Schedule I drugs, it has
come to FMCSA's attention that some people might interpret Sec. Sec.
382.213, 391.41(b)(12) and 391.43(f) to permit their use if recommended
by a licensed medical practitioner. The FMCSA has always considered
Sec. Sec. 382.213, 391.41(b)(12), 391.43(f), and 392.4 to prohibit any
and all use of Schedule I drugs by CMV drivers. In fact, Federal law
prohibits Schedule I drugs from being prescribed in the United States
(75 FR 16237, March 31, 2010). Schedule I drugs have a high potential
for abuse and no medically accepted therapeutic use (id.). Currently,
Federal law only allows for their use in research, chemical analysis,
or manufacture of other drugs (id.).
In certain circumstances, a medical review officer can verify a
drug test negative when he or she has information that a driver is
using a drug under a physician's prescription. However, under DOT-wide
rules, no medical review officer may verify a drug test negative for a
Schedule I drug, even if he or she has information that a driver is
using the Schedule I drug in accordance with a physician's
recommendation (49 CFR 40.151(e)). Interpreting FMCSA's regulations to
permit drivers to use Schedule I drugs would put the FMCSRs in direct
conflict with DOT's comprehensive drug testing program under 49 CFR
part 40, which does not permit drivers to use Schedule I drugs. The
FMCSA does not believe this is a reasonable interpretation of the
regulations. Regardless, to avoid any confusion, this rulemaking would
harmonize Sec. Sec. 382.213, 391.41(b)(12), 391.43(f), and 392.4 with
DOT-wide regulations and DEA regulations, and make it clear that
drivers may not use Schedule I drugs under any circumstances.
In addition, 49 CFR 382.211 prohibits drivers from refusing to
submit to certain types of drug or alcohol tests and establishes such
refusals as violations of FMCSA's drug and alcohol regulations.
Currently, under DOT-wide regulations, drivers who refuse to submit to
pre-employment and return-to-duty tests must complete the return-to-
duty process prescribed in part 40, subpart O. However, Sec. 382.211
is inconsistent with the DOT-wide drug and alcohol rules in that it
does not include refusals to submit to pre-employment and return-to-
duty tests as violations. The FMCSA proposes to correct this
inconsistency by adding these two types of refusals to the prohibitions
at Sec. 382.211.
Finally, FMCSA proposes changes to 49 CFR 382.201 and 382.215 to
clarify the Agency's rules prohibiting an employer from using a driver
about whom the employer has actual knowledge of drug or alcohol use, as
defined at Sec. 382.107. Sections 382.201 and 382.215 currently state
that an employer may not allow an employee to perform safety-sensitive
functions if the employer has actual knowledge that the employee has
tested positive for drugs or has an alcohol concentration of .04 or
greater. However, the term ``actual knowledge'' is defined in Sec.
382.107 to mean the observation of alcohol or controlled substances
use, and is not intended to refer to testing results. As a result, the
use of the term ``actual knowledge'' in these sections is not
appropriate. FMCSA proposes to replace the term ``actual knowledge''
with ``knowledge'' in these sections. This should clarify that these
prohibitions refer to the knowledge of test results, not employer
observation of prohibited conduct.

IV. Section-by-Section Analysis

Sections 382.201 and 382.215

An employer has ``actual knowledge'' that an employee has used
drugs or alcohol in violation of FMCSA rules when he or she directly
observes or otherwise learns that a driver is using controlled
substances or consuming alcohol while on duty (49 CFR 382.107). Actual
knowledge, as defined at Sec. 382.107, is distinct from an employer
knowing that his or her employee-driver tested positive or refused a
DOT drug or alcohol test. Because Sec. Sec. 382.201 and 382.215 set
forth prohibitions related to an employer's knowledge related to
testing, not observation, the use of the term ``actual knowledge'' is
not appropriate. The FMCSA proposes to replace the term ``actual
knowledge'' with ``knowledge'' in these sections. This would clarify
that these prohibitions refer to the knowledge of test results, not
employer observation of prohibited conduct.

[[Page 40309]]

Section 382.211

Current Sec. 382.211 prohibits drivers from refusing to submit to
a post-accident, random, or reasonable suspicion drug or alcohol test.
The Agency proposes to amend Sec. 382.211 to also prohibit refusals
for pre-employment testing and return-to-duty testing. This would make
this regulation consistent with 49 CFR 40.191(a)(3).

Section 382.213

Section 382.213 currently prohibits CMV drivers from using any
drugs when on duty or reporting for duty except when prescribed by a
licensed medical practitioner who has advised the driver that the
prescribed substance will not adversely affect the driver's ability to
operate a CMV. The Agency proposes to amend the language regarding the
drugs that CMV drivers are prohibited from using in order to
differentiate between Schedule I drugs and non-Schedule I drugs. The
proposed changes would make it clear that Schedule I drugs may not be
used by a CMV driver under any circumstances. The FMCSA's regulations
would continue to permit the use of non-Schedule I drugs under limited
circumstances, when prescribed by a licensed medical practitioner.

Sections 391.41 and 391.43

Section 391.41(b)(12)(i) currently states that a driver may not
use: Controlled substances on the DEA Schedule I, amphetamines,
narcotics, or other habit-forming drugs. Section 391.41(b)(12)(ii)
contains an exception for a substance or drug prescribed by a licensed
medical practitioner who is familiar with the driver's history and work
duties and has advised the driver that the prescribed substance or drug
will not adversely affect his or her ability to safely operate a CMV.
The FMCSA has never considered this exception to permit use of Schedule
I drugs by CMV drivers under any circumstance because Federal law
prohibits Schedule I drugs from being prescribed in the United States
(75 FR 16237, March 31, 2010). Section 391.43(f) incorporates the
substance of Sec. 391.41(b)(12) into pages 4 and 8 of the Instructions
to the Medical Examiner. The FMCSA makes no others changes to this
document.
Section 391.41(b)(12) and the Instructions for Medical Examiners at
Sec. 391.43(f) currently do not differentiate between Schedule I and
non-Schedule I drugs for the purpose of the prescription exception. The
prescription exception currently states that a CMV driver may use a
substance or drug that is prescribed by a licensed medical practitioner
who is familiar with the driver's medical history and has advised the
driver that the prescribed substance or drug will not adversely affect
the driver's ability to safely operate a CMV. The Agency proposes to
amend these sections to clarify that this exception only applies to
non-Schedule I prescribed substances, amphetamines, narcotics, or other
habit-forming drugs.

V. Regulatory Analyses

Regulatory Planning and Review

This action does not meet the criteria for a ``significant
regulatory action,'' either as specified in Executive Order 12866 as
supplemented by Executive Order 13563 (76 FR 3821, January 18, 2011) or
within the meaning of the DOT regulatory policies and procedures (44 FR
1103, February 26, 1979). The estimated economic costs of the proposed
rule do not exceed the $100 million annual threshold nor does the
Agency expect the proposed rule to have substantial Congressional or
public interest. Therefore, this proposed rule has not been formally
reviewed by the Office of Management and Budget. No expenditures would
be required of the affected population because the proposed rule would
only clarify existing rules, amend inconsistencies in FMCSA's current
regulations, and harmonize them with the DOT-wide regulations and DEA
regulations.

Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612) requires
Federal agencies to consider the effects of the regulatory action on
small business and other small entities and to minimize any significant
economic impact. The term ``small entities'' comprises small businesses
and not-for-profit organizations that are independently owned and
operated and are not dominant in their fields, as well as governmental
jurisdictions with populations of less than 50,000. Accordingly, DOT
policy requires an analysis of the impact of all regulations on small
entities and mandates that agencies strive to lessen any adverse
effects on these businesses.
Under the Regulatory Flexibility Act, as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996, the proposed rule
is not expected to have a significant economic impact on a substantial
number of small entities because the proposed rule would only clarify
existing rules, amend inconsistencies in FMCSA's current regulations,
and harmonize them with the DOT-wide regulations and DEA regulations.
Accordingly, I certify that a regulatory flexibility analysis is not
necessary.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), FMCSA wants to assist small
entities in understanding this proposed rule so that they can better
evaluate its effects on them and participate in the rulemaking
initiative. If the proposed rule would affect your small business,
organization, or governmental jurisdiction and you have questions
concerning its provisions or options for compliance, please consult the
FMCSA point of contact, Angela Ward, listed in the FOR FURTHER
INFORMATION CONTACT section of this proposed rule. FMCSA will not
retaliate against small entities that question or complain about this
proposed rule or any policy or action of the Agency.
Small businesses may send comments on the actions of Federal
employees who enforce or otherwise determine compliance with Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-
734-3247).

Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or Tribal government, in
the aggregate, or by the private sector of $140.8 million (which is the
value of $100 million in 2010 after adjusting for inflation) or more in
any 1 year. This proposed rule would not result in such expenditure;
FMCSA expects the effects of this proposed rule to be minimal because
the proposed rule would only clarify existing rules, amend
inconsistencies in FMCSA's current regulations, and harmonize them with
the DOT-wide regulations and DEA regulations.

Paperwork Reduction Act

This proposed rule would call for no new collection of information
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

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Privacy Impact Assessment

FMCSA conducted a Privacy Threshold Analysis for the Notice of
Proposed Rulemaking (NPRM) and determined that this proposed rule is
not a privacy-sensitive rulemaking because if promulgated as a final
rule it would not require any collection, maintenance, or dissemination
of Personally Identifiable Information from or about members of the
public.

Executive Order 13132 (Federalism)

A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on States or localities. FMCSA has analyzed
this proposed rule under that Order and has determined that it does not
have implications for federalism.

Executive Order 12630 (Taking of Private Property)

This proposed rule would not effect a taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.

Executive Order 12988 (Civil Justice Reform)

This proposed rule meets applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize
litigation, eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

FMCSA has analyzed this proposed rule under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. This proposed rule is not an economically significant rule and
would not create an environmental risk to health or risk to safety that
might disproportionately affect children.

Executive Order 13211 (Energy Effects)

FMCSA has analyzed this proposed rule under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The Agency has determined that it is not a
``significant energy action'' under that order because it is not a
``significant regulatory action'' under Executive Order 12866 and is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy.

Technical Standards

The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) that are developed or adopted by voluntary consensus
standards bodies. This proposed rule does not use technical standards.
Therefore, FMCSA did not consider the use of voluntary consensus
standards.

National Environmental Policy Act

FMCSA analyzed this NPRM for the purpose of the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and
determined under our environmental procedures Order 5610.1, published
February 24, 2004 (69 FR 9680), that this proposed action does not have
any effect on the quality of the environment. Therefore, this NPRM is
categorically excluded from further analysis and documentation in an
environmental assessment or environmental impact statement under FMCSA
Order 5610.1, paragraph 6(r) of Appendix 2. The Categorical Exclusion
under paragraph 6(y)(6) relates to ``regulations implementing employer
controlled substances and alcohol use and testing procedures * * *,''
which is the focus of this rulemaking. A Categorical Exclusion
determination is available for inspection or copying in the
regulations.gov Web site listed under ADDRESSES.
In addition to the NEPA requirements to examine impacts on air
quality, the Clean Air Act (CAA) as amended (42 U.S.C. 7401 et seq.)
also requires FMCSA to analyze the potential impact of its actions on
air quality and to ensure that FMCSA actions conform to State and local
air quality implementation plans. The additional contributions to air
emissions are expected to fall within the CAA de minimis standards and
are not expected to be subject to the Environmental Protection Agency's
General Conformity Rule (40 CFR parts 51 and 93).
FMCSA seeks comment on these determinations.

List of Subjects

49 CFR Part 382

Administrative practice and procedure, Alcohol abuse, Drug abuse,
Drug testing, Highway safety, Motor carriers, Penalties, Safety,
Transportation.

49 CFR Part 391

Alcohol abuse, Drug abuse, Drug testing, Highway safety, Motor
carriers, Reporting and recordkeeping requirements, Safety,
Transportation.
For the reasons stated in the preamble, FMCSA proposes to amend 49
CFR, parts 382 and 391 as follows:

PART 382--CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING

1. The authority citation for part 382 continues to read as
follows:

Authority: 49 U.S.C. 31133, 31136, 31301 et seq., 31502; and 49
CFR 1.73.

Sec. 382.201 [Amended]

2. Amend Sec. 382.201 by removing the word ``actual'' between the
words ``having'' and ``knowledge.''
3. Revise Sec. 382.211 to read as follows:

Sec. 382.211 Refusal to submit to a required alcohol or controlled
substances test.

No driver shall refuse to submit to a pre-employment controlled
substance test required under Sec. 382.301, a post-accident alcohol or
controlled substance test required under Sec. 382.303, a random
alcohol or controlled substances test required under Sec. 382.305, a
reasonable suspicion alcohol or controlled substance test required
under Sec. 382.307, a return-to-duty alcohol or controlled substances
test required under Sec. 382.309, or a follow-up alcohol or controlled
substance test required under Sec. 382.311. No employer shall permit a
driver who refuses to submit to such tests to perform or continue to
perform safety-sensitive functions.
4. Revise Sec. 382.213 to read as follows:

Sec. 382.213 Controlled substance use.

(a) No driver shall report for duty or remain on duty requiring the
performance of safety sensitive functions when the driver uses any
controlled substance identified in 21 CFR 1308.11.
(b) No driver shall report for duty or remain on duty requiring the
performance of safety-sensitive functions when the driver uses any non-
Schedule I drug except when the use is pursuant to the instructions of
a licensed medical practitioner, as defined in Sec. 382.107, who is
familiar with the driver's medical history and

[[Page 40311]]

has advised the driver that the substance will not adversely affect the
driver's ability to safely operate a commercial motor vehicle.
(c) No employer having actual knowledge that a driver has used a
controlled substance shall permit the driver to perform or continue to
perform a safety-sensitive function.
(d) An employer may require a driver to inform the employer of any
therapeutic drug use.

Sec. 382.215 [Amended]

5. Amend Sec. 382.215 by removing the word ``actual'' between the
words ``having'' and ``knowledge.''

PART 391--QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE
(LCV) DRIVER INSTRUCTORS

6. The authority citation for part 391 continues to read as
follows:

Authority: 49 U.S.C. 322, 504, 508, 31133, 31136, and 31502;
sec. 4007(b) of Pub. L. 102-240, 105 Stat. 2152; sec. 114 of Pub. L.
103-311, 108 Stat. 1673, 1677; sec. 215 of Pub. L. 106-159, 113
Stat. 1767; and 49 CFR 1.73.

7. Amend Sec. 391.41 by revising paragraphs (b)(12)(i) and (ii) to
read as follows:

Sec. 391.41 Physical qualifications for drivers.

* * * * *
(b) * * *
(12)(i) Does not use any controlled substance identified in 21 CFR
1308.11 Schedule I, an amphetamine, a narcotic, or other habit-forming
drug.
(ii) Does not use any non-Schedule I controlled substance except
when the use is pursuant to the instructions of a licensed medical
practitioner, as defined in Sec. 382.107, who is familiar with the
driver's medical history and has advised the driver that the substance
will not adversely affect the driver's ability to safely operate a
commercial motor vehicle.
* * * * *
8. Amend Sec. 391.43(f) by removing the Medical Examination Report
for Commercial Driver Fitness Determination, form 649-F (6045), and
adding in its place the following form, to read as follows:

Sec. 391.43 Medical examination; certificate of physical examination.

* * * * *
(f) * * *
BILLING CODE 4910-EX-P

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BILLING CODE 4910-EX-C
* * * * *

Issued on: July 5, 2011.
William Bronrott,
Deputy Administrator.
[FR Doc. 2011-17192 Filed 7-7-11; 8:45 am]
BILLING CODE 4910-EX-P

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