
[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: http://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 http://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 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.

C. Privacy Act

    All comments received will be posted without change to http://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 http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.

II. Abbreviations

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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.
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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).

[[Page 40310]]

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) * * *
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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


