Harmonizing Schedule I Drug Requirements, 4479-4491 [2012-1905]

Download as PDF Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Rules and Regulations § 39.122 Inspections, audits, and reports. (a) A State or Tribal Organization will allow VA inspectors and auditors to conduct inspections as necessary to ensure compliance with the provisions of this part. The State or Tribal Organization will provide to VA evidence that it has met its responsibility under the Single Audit Act of 1984 (see Part 41 of this chapter). (b) A State or Tribal Organization will make an annual report on VA Form 40– 0241 (State Cemetery Data) signed by the authorized representative of the State or Tribal Organization. These forms document current burial activity at the cemetery, use of gravesites, remaining gravesites, and additional operational information intended to answer questions about the status of the grant program. (c) A State or Tribal Organization will complete and submit to VA a VA Form 40–0895–13 (Certification Regarding Documents and Information Required for State or Tribal Government Cemetery Construction Grants-Post Grant Requirements) to ensure that the grantee is aware of and complies with all grant responsibilities and to properly and timely close out the grant. (Authority: 38 U.S.C. 501, 2408) (The Office of Management and Budget has approved the information collection requirements in this section under control number 2900–0559) of Transportation (DOT)-wide provisions. Finally, the rule corrects inaccurate uses of the term ‘‘actual knowledge.’’ This final rule is effective February 29, 2012. DATES: All background documents, comments, and materials related to this rule may be viewed in docket number FMCSA–2011–0073 using either of the following methods: • Federal eRulemaking Portal: http:// www.regulations.gov. • 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. FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, call or e- mail Angela Ward, Nurse Consultant, Medical Programs Office, Federal Motor Carrier Safety Administration, telephone: (202) 366–3109; email: angela.ward@dot.gov. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone (202) 366–9826. SUPPLEMENTARY INFORMATION: ADDRESSES: Table of Contents for Preamble Federal Motor Carrier Safety Administration I. Public Participation A. Viewing Comments and Documents B. Privacy Act II. Abbreviations III. Background A. History B. Legal Authority IV. Comments on the Proposed Rule V. Section-by-Section Analysis VI. Changes to the Proposed Rule in This Final Rule VII. Regulatory Analyses 49 CFR Parts 382 and 391 I. Public Participation [Docket No. FMCSA–2011–0073] A. Viewing Comments and Documents RIN 2126–AB35 To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://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. [FR Doc. 2012–1874 Filed 1–27–12; 8:45 am] BILLING CODE 8320–01–P DEPARTMENT OF TRANSPORTATION Harmonizing Schedule I Drug Requirements Federal Motor Carrier Safety Administration, DOT. ACTION: Final rule. AGENCY: The Federal Motor Carrier Safety Administration (FMCSA) amends 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 (CMVs) under any circumstances. The rule harmonizes FMCSA’s provisions regarding preemployment and return-to-duty test refusals with corresponding Department emcdonald on DSK29S0YB1PROD with RULES SUMMARY: VerDate Mar<15>2010 13:14 Jan 27, 2012 Jkt 226001 PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 4479 B. Privacy Act All comments received are posted without change to http:// www.regulations.gov. 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 http:// edocket.access.gpo.gov/2008/pdf/E8785.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 Federal laws governing drugs of abuse are set forth in 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. Controlled substances are drugs and other substances that have a potential for abuse and psychological and physical dependence. The Drug Enforcement Administration (DEA) is the primary agency responsible for enforcing the Federal controlled substance laws. The DEA regulations, which implement these laws, are found in 21 CFR parts 1300 to 1321. As part of these regulations, DEA publishes an updated list of controlled substances in 21 CFR 1308.11 through 1308.15. The controlled substances are divided into five schedules. The controlled substances listed in the schedule that are relevant to this rulemaking, Schedule I controlled substances, 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 16236, March 31, 2010). The Omnibus Transportation Employee Testing Act of 1991 (OTETA) mandated that DOT establish a E:\FR\FM\30JAR1.SGM 30JAR1 emcdonald on DSK29S0YB1PROD with RULES 4480 Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Rules and Regulations 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. FMCSA’s related drug and alcohol testing regulations are in 49 CFR part 382, ‘‘Controlled Substances and Alcohol Use and Testing.’’ Section 382.213 prohibits 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, the Federal Motor Carrier Safety Regulations (FMCSRs) include 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). The regulation was revised several times, most notably in 1984, when the DEA’s Schedule I drugs were added to the list of drugs prohibited by § 391.41(b)(12) (49 FR 44215, November 5, 1984). Section 391.43(f) incorporates the substance of § 391.41(b)(12) in the instructions to the medical examiner. 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). On July 8, 2011 (76 FR 40306), FMCSA proposed a rule to resolve a perceived inconsistency among: §§ 382.213, 391.41(b)(12), 391.43(f), and 392.4 of the FMCSRs; DOT-wide drug regulations in part 40; and DEA regulations. The Notice of Proposed Rulemaking (NPRM) proposed to VerDate Mar<15>2010 13:14 Jan 27, 2012 Jkt 226001 eliminate these perceived inconsistencies by making three changes to FMCSA’s regulations. The first was to amend the minimum physical qualifications for CMV drivers to clarify that the use of Schedule I drugs is prohibited under all circumstances. The second was to require that drivers who refuse to submit to pre-employment and return-to-duty tests be subject to the same referral, evaluation, and treatment steps that are required after refusing other types of tests. The third was to replace the term ‘‘actual knowledge’’ with the word ‘‘knowledge’’ in the context of regulations addressing employers’ knowledge of positive test results. The comment period ended on September 6, 2011, and the Agency received two comments. 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) gives the Secretary of Transportation (Secretary) 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 by 49 U.S.C. chapter 311, subchapters I and III, relating to CMV programs and safety regulation. This rule implements, in part, the Administrator’s delegated authority under Section 206(a)(3) of the 1984 Act to ensure that the physical condition of CMV operators is adequate to enable them to operate vehicles safely by clarifying that drivers may not use Schedule I drugs and be qualified to drive CMVs under any circumstances. The rule also exercises the broad recordkeeping and implementation PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 authority under Section 211. The other subsections of Section 206(a) do not apply because this final rule only addresses the physical condition of CMV drivers. In addition, and as stated above, OTETA (Pub. L. 102–143, Title V, 105 Stat. 917, at 952, October 28, 1991, partially codified at 49 U.S.C. 31306), mandated the alcohol and controlled substances (drug) testing program for DOT. OTETA required the Secretary 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.’’ IV. Comments on the Proposed Rule FMCSA received two comments in response to the NPRM (76 FR 40306, July 8, 2011). The commenters included a member of the public and the American Trucking Associations (ATA). Both commenters expressed support for the rulemaking. The individual commenter stated the final rule ‘‘can help with the safety on the road and the public.’’ Specifically, ATA ‘‘commended FMCSA for its continued efforts to clarify and improve the drug and alcohol testing regulations.’’ Pre-employment Tests ATA commented that it believed that the proposed changes to § 382.211 (preemployment tests) would likely be ineffective because any driver that fails a pre-employment test would probably seek a position elsewhere and not report the failed test to future employers. ATA stated that this is a loophole that cannot be closed until FMCSA implements a national clearinghouse for drug/alcohol test results. FMCSA Response. Implementation of a national clearinghouse is outside the scope of the rule FMCSA proposed. FMCSA is considering, however, addressing this issue as a part of a future rulemaking. E:\FR\FM\30JAR1.SGM 30JAR1 Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Rules and Regulations V. Section-by-Section Analysis Sections 382.201 and 382.215 This rule amends §§ 382.201 and 382.215 to correct improper use of the term ‘‘actual knowledge.’’ 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. FMCSA replaces the term ‘‘actual knowledge’’ with ‘‘knowledge’’ in these sections, clarifying that these prohibitions refer to the knowledge of test results, not employer observation of prohibited conduct. emcdonald on DSK29S0YB1PROD with RULES Section 382.211 Prior to this final rule, § 382.211 only prohibited drivers from refusing to submit to a post-accident, random, reasonable suspicion, or follow-up drug or alcohol test. This rule amends this section to include refusals for preemployment testing and return-to-duty testing as additional prohibitions. This amendment makes the regulation consistent with DOT-wide drug and alcohol testing rules at 49 CFR 40.191(a)(3). Section 382.213 Prior to this final rule, the text of § 382.213 prohibited 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. In this final rule, the Agency amends 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 changes make it clear that Schedule I drugs may not be used by a CMV driver under any circumstances. FMCSA’s regulations continue to permit the use of nonSchedule I drugs under limited circumstances, when prescribed by a licensed medical practitioner. Sections 391.41 and 391.43 Prior to this final rule, § 391.41(b)(12)(i) stated that a driver VerDate Mar<15>2010 13:14 Jan 27, 2012 Jkt 226001 may not use: Controlled substances on the DEA Schedule I, amphetamines, narcotics, or other habit-forming drugs. Section 391.41(b)(12)(ii) contained 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. Previously, § 391.41(b)(12) did not differentiate between Schedule I and non-Schedule I drugs for the purpose of the prescription exception. However, 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. The Agency amends § 391.41 to remove any ambiguity and to clarify that the exception that allows a CMV driver to use a substance or drug if it 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, only applies to non-Schedule I prescribed substances, amphetamines, narcotics, or other habit-forming drugs. Section 391.43(f) incorporates the substance of § 391.41(b)(12) into pages 4 and 8 of the Instructions to the Medical Examiner. FMCSA makes no other changes to this document. VI. Changes to the Proposed Rule in this Final Rule This final rule makes the following minor changes to the NPRM to improve the clarity and intent of the rule. The final rule removes the term ‘‘controlled substance’’ from §§ 382.213 and 391.41(b)(12) and replaces it with ‘‘drug or substance.’’ This new language conforms to terminology the DEA uses in its regulations at 21 CFR part 1308. The final rule also changes the language in §§ 382.213(b) and 391.41(b)(12)(ii) that references non-Schedule I drugs or substances and replaces it with the phrase ‘‘that is identified in the other Schedules in 21 CFR part 1308.’’ The Agency did not intend to expand the scope of these sections to nonscheduled drugs. This change makes the Agency’s intent clear by specifically stating that they only apply to the use of drugs or substances that appear on one of the DEA’s controlled substances schedules. The final rule changes the following highlighted language proposed in § 391.41(b)(12)(ii): ‘‘Does not use any non-Schedule I controlled substance PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 4481 except when the use is pursuant to the instructions of a licensed medical practitioner * * * ’’ After further consideration, the Agency concluded that this change of language is inconsistent with language used elsewhere in the Agency’s regulations and would be confusing to public. As a result, the final rule does not adopt this change. The final rule removes the language ‘‘pursuant to the instructions of’’ and replaces it with the original language in this section, ‘‘prescribed by.’’ The final rule also changes § 391.43(f) to reflect these changes on pages 4 and 8 of the Instructions to the Medical Examiner. Finally, the final rule removes the following language from page 8 of the Instructions to the Medical Examiner: ‘‘If a driver uses a Schedule I drug or other substance, an amphetamine, a narcotic, or any other habit-forming drug, it may be cause for the driver to be found medically unqualified,’’ and replaces it with: ‘‘If a driver uses an amphetamine, a narcotic or any other habit-forming drug, it may be cause for the driver to be found medically unqualified. If a driver uses a Schedule I drug or substance, it will be cause for the driver to be found medically unqualified.’’ This change harmonizes the Instructions with the other changes made in this final rule. Specifically, it makes clear that a driver using a Schedule I drug or substance is not medically qualified to drive under any circumstances. VII. 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 rule do not exceed the $100 million annual threshold nor does the Agency expect the rule to have substantial Congressional or public interest. Therefore, this rule has not been formally reviewed by the Office of Management and Budget. No expenditures are required of the affected population because the rule only clarifies existing rules, amends inconsistencies in FMCSA’s current regulations, and harmonizes them with DOT-wide regulations and DEA regulations. E:\FR\FM\30JAR1.SGM 30JAR1 4482 Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Rules and 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 (Pub. L. 104–121, Title II, 110 Stat. 857), the rule is not expected to have a significant economic impact on a substantial number of small entities because the rule only clarifies existing rules, amends inconsistencies in FMCSA’s current regulations, and harmonizes them with the DOT-wide regulations and DEA regulations. Accordingly, I certify that a regulatory flexibility analysis is not necessary. emcdonald on DSK29S0YB1PROD with RULES Assistance for Small Entities In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121, 110 Stat. 858), FMCSA wants to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking initiative. If the rule affects 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 rule. FMCSA does not intend to take action against small entities that have questions about this 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 VerDate Mar<15>2010 13:14 Jan 27, 2012 Jkt 226001 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 $143.1 million (which is the value of $100 million in 2010 after adjusting for inflation) or more in any 1 year. This rule will not result in such expenditure; FMCSA expects the effects of this rule to be minimal because it only clarifies existing rules, amends inconsistencies in FMCSA’s current regulations, and harmonizes them with the DOT-wide regulations and DEA regulations. Paperwork Reduction Act This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501– 3520). Privacy Impact Assessment FMCSA conducted a Privacy Threshold Analysis for the rulemaking and determined that this rule is not a privacy-sensitive rulemaking because it will 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 either preempts State law or imposes a substantial direct cost of compliance on States or localities. Although States and localities are prohibited by 49 U.S.C. 31306(g) from adopting or enforcing a law or regulation inconsistent with OTETA or its implementing regulations, parts 382 and 391 and this rule do not impose substantial direct costs of compliance on States or localities. FMCSA has therefore determined that this rule does not have implications for federalism. Executive Order 12630 (Taking of Private Property) This rule does 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. PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 Executive Order 12988 (Civil Justice Reform) This 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 analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that might disproportionately affect children. Executive Order 13211 (Energy Effects) FMCSA analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Agency 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 rule does not use technical standards. Therefore, FMCSA did not consider the use of voluntary consensus standards. National Environmental Policy Act and Clean Air Act FMCSA analyzed this rule 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 action does not have any effect on the quality of the environment. Therefore, this rule is categorically excluded from further analysis and documentation in an environmental E:\FR\FM\30JAR1.SGM 30JAR1 Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Rules and Regulations 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). 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 amends 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: ■ emcdonald on DSK29S0YB1PROD with RULES Authority: 49 U.S.C. 31133, 31136, 31301 et seq., 31502; and 49 CFR 1.73. VerDate Mar<15>2010 13:14 Jan 27, 2012 Jkt 226001 § 382.201 [Amended] § 382.215 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 drug or substance identified in 21 CFR 1308.11 Schedule I. (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 or substance that is identified in the other Schedules in 21 CFR part 1308 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 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. PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 4483 [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 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. Revise § 391.41 paragraph (b)(12) to read as follows: ■ § 391.41 drivers. * Physical qualifications for * * * * (b) * * * (12)(i) Does not use any drug or 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 drug or substance that is identified in the other Schedules in 21 part 1308 except when the use is prescribed by a licensed medical practitioner, as defined in § 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 § 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\30JAR1.SGM 30JAR1 * VerDate Mar<15>2010 Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Rules and Regulations 13:14 Jan 27, 2012 Jkt 226001 PO 00000 Frm 00028 Fmt 4700 Sfmt 4725 E:\FR\FM\30JAR1.SGM 30JAR1 ER30JA12.002</GPH> emcdonald on DSK29S0YB1PROD with RULES 4484 VerDate Mar<15>2010 13:14 Jan 27, 2012 Jkt 226001 PO 00000 Frm 00029 Fmt 4700 Sfmt 4725 E:\FR\FM\30JAR1.SGM 30JAR1 4485 ER30JA12.003</GPH> emcdonald on DSK29S0YB1PROD with RULES Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Rules and Regulations VerDate Mar<15>2010 Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Rules and Regulations 13:14 Jan 27, 2012 Jkt 226001 PO 00000 Frm 00030 Fmt 4700 Sfmt 4725 E:\FR\FM\30JAR1.SGM 30JAR1 ER30JA12.004</GPH> emcdonald on DSK29S0YB1PROD with RULES 4486 VerDate Mar<15>2010 13:14 Jan 27, 2012 Jkt 226001 PO 00000 Frm 00031 Fmt 4700 Sfmt 4725 E:\FR\FM\30JAR1.SGM 30JAR1 4487 ER30JA12.005</GPH> emcdonald on DSK29S0YB1PROD with RULES Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Rules and Regulations VerDate Mar<15>2010 Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Rules and Regulations 13:14 Jan 27, 2012 Jkt 226001 PO 00000 Frm 00032 Fmt 4700 Sfmt 4725 E:\FR\FM\30JAR1.SGM 30JAR1 ER30JA12.006</GPH> emcdonald on DSK29S0YB1PROD with RULES 4488 VerDate Mar<15>2010 13:14 Jan 27, 2012 Jkt 226001 PO 00000 Frm 00033 Fmt 4700 Sfmt 4725 E:\FR\FM\30JAR1.SGM 30JAR1 4489 ER30JA12.007</GPH> emcdonald on DSK29S0YB1PROD with RULES Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Rules and Regulations VerDate Mar<15>2010 Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Rules and Regulations 13:14 Jan 27, 2012 Jkt 226001 PO 00000 Frm 00034 Fmt 4700 Sfmt 4725 E:\FR\FM\30JAR1.SGM 30JAR1 ER30JA12.008</GPH> emcdonald on DSK29S0YB1PROD with RULES 4490 Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Rules and Regulations * * * * 4491 Issued on: January 18, 2012. Anne S. Ferro, Administrator. * [FR Doc. 2012–1905 Filed 1–27–12; 8:45 am] VerDate Mar<15>2010 16:29 Jan 27, 2012 Jkt 226001 PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 E:\FR\FM\30JAR1.SGM 30JAR1 ER30JA12.009</GPH> emcdonald on DSK29S0YB1PROD with RULES BILLING CODE 4910–EX–C

Agencies

[Federal Register Volume 77, Number 19 (Monday, January 30, 2012)]
[Rules and Regulations]
[Pages 4479-4491]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-1905]


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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: Final rule.

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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) amends 
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 (CMVs) 
under any circumstances. The rule harmonizes FMCSA's provisions 
regarding pre-employment and return-to-duty test refusals with 
corresponding Department of Transportation (DOT)-wide provisions. 
Finally, the rule corrects inaccurate uses of the term ``actual 
knowledge.''

DATES: This final rule is effective February 29, 2012.

ADDRESSES: All background documents, comments, and materials related to 
this rule may be viewed in docket number FMCSA-2011-0073 using either 
of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
     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.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or e- mail Angela Ward, Nurse Consultant, Medical Programs Office, 
Federal Motor Carrier Safety Administration, telephone: (202) 366-3109; 
email: angela.ward@dot.gov. If you have questions on viewing the 
docket, call Renee V. Wright, Program Manager, Docket Operations, 
telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION: 

Table of Contents for Preamble

I. Public Participation
    A. Viewing Comments and Documents
    B. Privacy Act
II. Abbreviations
III. Background
    A. History
    B. Legal Authority
IV. Comments on the Proposed Rule
V. Section-by-Section Analysis
VI. Changes to the Proposed Rule in This Final Rule
VII. Regulatory Analyses

I. Public Participation

A. Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://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.

B. Privacy Act

    All comments received are posted without change to http://www.regulations.gov. 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 http://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 Federal laws governing drugs of abuse are set forth in 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. 
Controlled substances are drugs and other substances that have a 
potential for abuse and psychological and physical dependence. The Drug 
Enforcement Administration (DEA) is the primary agency responsible for 
enforcing the Federal controlled substance laws. The DEA regulations, 
which implement these laws, are found in 21 CFR parts 1300 to 1321. As 
part of these regulations, DEA publishes an updated list of controlled 
substances in 21 CFR 1308.11 through 1308.15. The controlled substances 
are divided into five schedules. The controlled substances listed in 
the schedule that are relevant to this rulemaking, Schedule I 
controlled substances, 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 
16236, March 31, 2010).
    The Omnibus Transportation Employee Testing Act of 1991 (OTETA) 
mandated that DOT establish a

[[Page 4480]]

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. FMCSA's related drug and 
alcohol testing regulations are in 49 CFR part 382, ``Controlled 
Substances and Alcohol Use and Testing.''
    Section 382.213 prohibits 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, the Federal Motor Carrier Safety 
Regulations (FMCSRs) include 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). The regulation 
was revised several times, most notably in 1984, when the DEA's 
Schedule I drugs were added to the list of drugs prohibited by Sec.  
391.41(b)(12) (49 FR 44215, November 5, 1984). Section 391.43(f) 
incorporates the substance of Sec.  391.41(b)(12) in the instructions 
to the medical examiner.
    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).
    On July 8, 2011 (76 FR 40306), FMCSA proposed a rule to resolve a 
perceived inconsistency among: Sec. Sec.  382.213, 391.41(b)(12), 
391.43(f), and 392.4 of the FMCSRs; DOT-wide drug regulations in part 
40; and DEA regulations. The Notice of Proposed Rulemaking (NPRM) 
proposed to eliminate these perceived inconsistencies by making three 
changes to FMCSA's regulations. The first was to amend the minimum 
physical qualifications for CMV drivers to clarify that the use of 
Schedule I drugs is prohibited under all circumstances. The second was 
to require that drivers who refuse to submit to pre-employment and 
return-to-duty tests be subject to the same referral, evaluation, and 
treatment steps that are required after refusing other types of tests. 
The third was to replace the term ``actual knowledge'' with the word 
``knowledge'' in the context of regulations addressing employers' 
knowledge of positive test results. The comment period ended on 
September 6, 2011, and the Agency received two comments.

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) gives the Secretary of 
Transportation (Secretary) 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 by 49 U.S.C. 
chapter 311, subchapters I and III, relating to CMV programs and safety 
regulation. This rule implements, in part, the Administrator's 
delegated authority under Section 206(a)(3) of the 1984 Act to ensure 
that the physical condition of CMV operators is adequate to enable them 
to operate vehicles safely by clarifying that drivers may not use 
Schedule I drugs and be qualified to drive CMVs under any 
circumstances. The rule also exercises the broad recordkeeping and 
implementation authority under Section 211. The other subsections of 
Section 206(a) do not apply because this final rule only addresses the 
physical condition of CMV drivers.
    In addition, and as stated above, OTETA (Pub. L. 102-143, Title V, 
105 Stat. 917, at 952, October 28, 1991, partially codified at 49 
U.S.C. 31306), mandated the alcohol and controlled substances (drug) 
testing program for DOT. OTETA required the Secretary 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.''

IV. Comments on the Proposed Rule

    FMCSA received two comments in response to the NPRM (76 FR 40306, 
July 8, 2011). The commenters included a member of the public and the 
American Trucking Associations (ATA). Both commenters expressed support 
for the rulemaking. The individual commenter stated the final rule 
``can help with the safety on the road and the public.'' Specifically, 
ATA ``commended FMCSA for its continued efforts to clarify and improve 
the drug and alcohol testing regulations.''

Pre-employment Tests

    ATA commented that it believed that the proposed changes to Sec.  
382.211 (pre-employment tests) would likely be ineffective because any 
driver that fails a pre-employment test would probably seek a position 
elsewhere and not report the failed test to future employers. ATA 
stated that this is a loophole that cannot be closed until FMCSA 
implements a national clearinghouse for drug/alcohol test results.
    FMCSA Response. Implementation of a national clearinghouse is 
outside the scope of the rule FMCSA proposed. FMCSA is considering, 
however, addressing this issue as a part of a future rulemaking.

[[Page 4481]]

V. Section-by-Section Analysis

Sections 382.201 and 382.215

    This rule amends Sec. Sec.  382.201 and 382.215 to correct improper 
use of the term ``actual knowledge.'' 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. FMCSA replaces the 
term ``actual knowledge'' with ``knowledge'' in these sections, 
clarifying that these prohibitions refer to the knowledge of test 
results, not employer observation of prohibited conduct.

Section 382.211

    Prior to this final rule, Sec.  382.211 only prohibited drivers 
from refusing to submit to a post-accident, random, reasonable 
suspicion, or follow-up drug or alcohol test. This rule amends this 
section to include refusals for pre-employment testing and return-to-
duty testing as additional prohibitions. This amendment makes the 
regulation consistent with DOT-wide drug and alcohol testing rules at 
49 CFR 40.191(a)(3).

Section 382.213

    Prior to this final rule, the text of Sec.  382.213 prohibited 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. In this final rule, the Agency 
amends 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 changes make it clear that Schedule I drugs may 
not be used by a CMV driver under any circumstances. FMCSA's 
regulations 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

    Prior to this final rule, Sec.  391.41(b)(12)(i) stated 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) contained 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. Previously, Sec.  391.41(b)(12) did 
not differentiate between Schedule I and non-Schedule I drugs for the 
purpose of the prescription exception. However, 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.
    The Agency amends Sec.  391.41 to remove any ambiguity and to 
clarify that the exception that allows a CMV driver to use a substance 
or drug if it 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, only applies to non-Schedule 
I prescribed substances, amphetamines, narcotics, or other habit-
forming drugs.
    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. FMCSA 
makes no other changes to this document.

VI. Changes to the Proposed Rule in this Final Rule

    This final rule makes the following minor changes to the NPRM to 
improve the clarity and intent of the rule.
    The final rule removes the term ``controlled substance'' from 
Sec. Sec.  382.213 and 391.41(b)(12) and replaces it with ``drug or 
substance.'' This new language conforms to terminology the DEA uses in 
its regulations at 21 CFR part 1308. The final rule also changes the 
language in Sec. Sec.  382.213(b) and 391.41(b)(12)(ii) that references 
non-Schedule I drugs or substances and replaces it with the phrase 
``that is identified in the other Schedules in 21 CFR part 1308.'' The 
Agency did not intend to expand the scope of these sections to non-
scheduled drugs. This change makes the Agency's intent clear by 
specifically stating that they only apply to the use of drugs or 
substances that appear on one of the DEA's controlled substances 
schedules.
    The final rule changes the following highlighted language proposed 
in Sec.  391.41(b)(12)(ii): ``Does not use any non-Schedule I 
controlled substance except when the use is pursuant to the 
instructions of a licensed medical practitioner * * * '' After further 
consideration, the Agency concluded that this change of language is 
inconsistent with language used elsewhere in the Agency's regulations 
and would be confusing to public. As a result, the final rule does not 
adopt this change. The final rule removes the language ``pursuant to 
the instructions of'' and replaces it with the original language in 
this section, ``prescribed by.''
    The final rule also changes Sec.  391.43(f) to reflect these 
changes on pages 4 and 8 of the Instructions to the Medical Examiner.
    Finally, the final rule removes the following language from page 8 
of the Instructions to the Medical Examiner: ``If a driver uses a 
Schedule I drug or other substance, an amphetamine, a narcotic, or any 
other habit-forming drug, it may be cause for the driver to be found 
medically unqualified,'' and replaces it with: ``If a driver uses an 
amphetamine, a narcotic or any other habit-forming drug, it may be 
cause for the driver to be found medically unqualified. If a driver 
uses a Schedule I drug or substance, it will be cause for the driver to 
be found medically unqualified.'' This change harmonizes the 
Instructions with the other changes made in this final rule. 
Specifically, it makes clear that a driver using a Schedule I drug or 
substance is not medically qualified to drive under any circumstances.

VII. 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 rule do 
not exceed the $100 million annual threshold nor does the Agency expect 
the rule to have substantial Congressional or public interest. 
Therefore, this rule has not been formally reviewed by the Office of 
Management and Budget. No expenditures are required of the affected 
population because the rule only clarifies existing rules, amends 
inconsistencies in FMCSA's current regulations, and harmonizes them 
with DOT-wide regulations and DEA regulations.

[[Page 4482]]

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 (Pub. L. 104-121, 
Title II, 110 Stat. 857), the rule is not expected to have a 
significant economic impact on a substantial number of small entities 
because the rule only clarifies existing rules, amends inconsistencies 
in FMCSA's current regulations, and harmonizes them with the DOT-wide 
regulations and DEA regulations. Accordingly, I certify that a 
regulatory flexibility analysis is not necessary.

Assistance for Small Entities

    In accordance with section 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 858), 
FMCSA wants to assist small entities in understanding this rule so that 
they can better evaluate its effects on them and participate in the 
rulemaking initiative. If the rule affects 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 rule. FMCSA does not intend to take 
action against small entities that have questions about this 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 $143.1 million (which is the 
value of $100 million in 2010 after adjusting for inflation) or more in 
any 1 year. This rule will not result in such expenditure; FMCSA 
expects the effects of this rule to be minimal because it only 
clarifies existing rules, amends inconsistencies in FMCSA's current 
regulations, and harmonizes them with the DOT-wide regulations and DEA 
regulations.

Paperwork Reduction Act

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

Privacy Impact Assessment

    FMCSA conducted a Privacy Threshold Analysis for the rulemaking and 
determined that this rule is not a privacy-sensitive rulemaking because 
it will 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 either preempts State law or imposes a substantial 
direct cost of compliance on States or localities. Although States and 
localities are prohibited by 49 U.S.C. 31306(g) from adopting or 
enforcing a law or regulation inconsistent with OTETA or its 
implementing regulations, parts 382 and 391 and this rule do not impose 
substantial direct costs of compliance on States or localities. FMCSA 
has therefore determined that this rule does not have implications for 
federalism.

Executive Order 12630 (Taking of Private Property)

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

Executive Order 13211 (Energy Effects)

    FMCSA analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. The Agency 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 rule does not use technical standards. 
Therefore, FMCSA did not consider the use of voluntary consensus 
standards.

National Environmental Policy Act and Clean Air Act

    FMCSA analyzed this rule 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 action does not have any 
effect on the quality of the environment. Therefore, this rule is 
categorically excluded from further analysis and documentation in an 
environmental

[[Page 4483]]

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).

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 amends 49 CFR parts 
382 and 391 as follows:

PART 382--CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING

0
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]

0
2. Amend Sec.  382.201 by removing the word ``actual'' between the 
words ``having'' and ``knowledge.''

0
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.

0
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 drug 
or substance identified in 21 CFR 1308.11 Schedule I.
    (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 or substance that is identified in the other Schedules 
in 21 CFR part 1308 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.
    (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]

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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

0
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.


0
7. Revise Sec.  391.41 paragraph (b)(12) to read as follows:


Sec.  391.41  Physical qualifications for drivers.

* * * * *
    (b) * * *
    (12)(i) Does not use any drug or 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 drug or substance that is 
identified in the other Schedules in 21 part 1308 except when the use 
is prescribed by 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.
* * * * *

0
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) * * *
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* * * * *

    Issued on: January 18, 2012.
Anne S. Ferro,
Administrator.
[FR Doc. 2012-1905 Filed 1-27-12; 8:45 am]
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