Controlled Substances and Alcohol Use and Testing: J.B. Hunt Transport, Inc., Schneider National Carriers, Inc., Werner Enterprises, Inc., Knight Transportation, Inc., Dupre Logistics, Inc. and Maveric Transportation, LLC Application for Exemption

Larry W. Minor
Federal Motor Carrier Safety Administration
19 January 2017

[Federal Register Volume 82, Number 12 (Thursday, January 19, 2017)]
[Notices]
[Pages 6688-6689]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-01278]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2017-0002]


Controlled Substances and Alcohol Use and Testing: J.B. Hunt 
Transport, Inc., Schneider National Carriers, Inc., Werner Enterprises, 
Inc., Knight Transportation, Inc., Dupre Logistics, Inc. and Maveric 
Transportation, LLC Application for Exemption

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of application for exemption; request for comments.

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SUMMARY: FMCSA announces that it has received an application from J.B. 
Hunt Transport, Inc. (J.B. Hunt), Schneider National Carriers, Inc. 
(Schneider), Werner Enterprises, Inc. (Werner), Knight Transportation, 
Inc. (Knight), Dupre Logistics, Inc. (Dupree), and Maveric 
Transportation, LLC (Maverick) (the Applicants) to allow hair analysis 
in lieu of urine testing for pre-employment controlled substances 
testing of commercial driver's license (CDL) holders. The Applicants 
currently conduct pre-employment urine testing that satisfies the 
Department of Transportation's (the Department) requirements under 49 
CFR part 40 and hair analysis, separate from the Department's 
controlled substances and alcohol testing program. The Applicants' 
believe their data ``. . . demonstrates that hair analysis is a more 
reliable and comprehensive basis for ensuring detection of controlled 
substance use'' and the exemption would enable these fleets to 
discontinue pre-employment urine testing. FMCSA requests public comment 
on the exemption application.

DATES: Comments must be received on or before February 21, 2017.

ADDRESSES: You may submit comments identified by Federal Docket 
Management System Number FMCSA-2017-0002 by any of the following 
methods:
     Federal eRulemaking Portal: www.regulations.gov. See the 
Public Participation and Request for Comments section below for further 
information.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., West Building, Ground 
Floor, Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor, 
Room W12-140, 1200 New Jersey Avenue SE., between 9 a.m. and 5 p.m. 
E.T., Monday through Friday, except Federal holidays.
     Fax: 1-202-493-2251.
    Each submission must include the Agency name and the docket number 
for this notice. Note that DOT posts all comments received, without 
change, to www.regulations.gov, including any personal information 
included in a comment. Please see the Privacy Act heading below.
    Docket: For access to the docket to read background documents or 
comments, go to www.regulations.gov at any time or visit Room W12-140 
on the ground level of the West Building, 1200 New Jersey Avenue SE., 
Washington, DC, between 9 a.m. and 5 p.m., ET, Monday through Friday, 
except Federal holidays. The on-line FDMS is available 24 hours each 
day, 365 days each year.
    Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits 
comments from the public to better inform its rulemaking process. DOT 
posts these comments, without edit, including any personal information 
the commenter provides, to www.regulations.gov, as described in the 
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.

FOR FURTHER INFORMATION CONTACT: For information concerning this 
notice, contact Mr. Thomas Yager, Chief, FMCSA Driver and Carrier 
Operations Division; Office of Carrier, Driver and Vehicle Safety 
Standards; Telephone: (614) 942-6477. Email: MCPSD@dot.gov. If you have 
questions on viewing or submitting material to the docket, contact 
Docket Services, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION: 

I. Public Participation and Request for Comments

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

Submitting Comments

    If you submit a comment, please include the docket number for this 
notice (FMCSA-2017-0002), indicate the specific section of this 
document to which the comment applies, and provide a reason for 
suggestions or recommendations. 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 email address, or a phone number in the body of 
your document so the Agency can contact you if it has questions 
regarding your submission.
    To submit your comment online, go to www.regulations.gov and put 
the docket number, ``FMCSA-2017-0002'' in the ``Keyword'' box, and 
click ``Search.'' When the new screen appears, click on ``Comment 
Now!'' button and type your comment into the text box in the following 
screen. Choose whether you are submitting your comment as an individual 
or on behalf of a third party, and then submit. 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 grant or not grant this application 
based on your comments.

II. Legal Basis

    FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant 
exemptions from certain Federal Motor Carrier Safety Regulations 
(FMCSRs). FMCSA must publish a notice of each exemption request in the 
Federal Register (49 CFR 381.315(a)). The Agency must provide the 
public an opportunity to inspect the information relevant to the 
application, including any safety analyses that have been conducted. 
The Agency must also

[[Page 6689]]

provide an opportunity for public comment on the request.
    The Agency reviews safety analyses and public comments submitted, 
and determines whether granting the exemption would likely achieve a 
level of safety equivalent to, or greater than, the level that would be 
achieved by the current regulation (49 CFR 381.305). The decision of 
the Agency must be published in the Federal Register (49 CFR 
381.315(b)) with the reasons for denying or granting the application 
and, if granted, the name of the person or class of persons receiving 
the exemption, and the regulatory provision from which the exemption is 
granted. The notice must also specify the effective period and explain 
the terms and conditions of the exemption. The exemption may be renewed 
(49 CFR 381.300(b)).

III. Request for Exemption

Background--Regulatory Requirements

    Currently, 49 CFR 382.105, concerning FMCSA's controlled substances 
and alcohol testing regulations, requires that each employer ensure all 
alcohol or controlled substances testing conducted on CDL holders 
complies with the procedures under 49 CFR part 40. All parties who 
conduct controlled substances and alcohol tests required by the 
Department must follow the Part 40 requirements on how to conduct the 
test and what procedures to use. Currently, Part 40 only allows urine 
testing for controlled substances. Congress, through the Omnibus 
Transportation Employee Testing Act (OTETA) of 1991 (Pub. L. 102-143, 
Title V, 105 Stat. 952). OTETA requires the Department to follow the 
HHS Mandatory Guidelines for scientific testing issues. While DOT has 
discretion concerning many aspects of the regulations governing testing 
in the transportation industries' regulated programs, we must follow 
the HHS Mandatory Guidelines for the laboratory standards and 
procedures the Department will use for regulated testing.
    Section 382.301 provides requirements concerning pre-employment 
testing of commercial driver's license (CDL) holders for controlled 
substances, while 49 CFR part 383 prescribes requirements for 
individuals who must obtain a CDL. With limited exceptions, an employer 
must conduct pre-employment testing for controlled substances prior to 
the first time a driver performs ``safety-sensitive functions,'' as 
defined in 49 CFR 382.107. Employers must not allow a driver whom the 
employer intends to hire or use to perform safety-sensitive functions 
unless the employer has received a controlled substances test result 
from the medical review officer (MRO) or consortium/third-party 
administrator (C/TPA), as those terms are defined in 49 CFR 40.3, 
indicating a verified negative test result for that driver.

Application for Exemption

    The Applicants have requested an exemption from 49 CFR 382.105 and 
382.301 with specific authorization for release of and obtaining hair 
test results to comply with 49 CFR 391.23, Investigations and 
inquiries. Under the exemption, the carriers would conduct pre-
employment tests using hair analysis only, rather than hair analysis in 
addition to urine testing, and individuals with negative test results 
would be permitted to perform safety-sensitive functions for the 
employer. Individuals testing positive would not be allowed to perform 
safety-sensitive functions until the driver completes the return-to-
duty process under Subpart O of 49 CFR part 40. In addition, the 
Applicants would share the positive hair testing results with 
prospective employers in response to safety-performance inquiries 
required by 49 CFR 391.23.
    The carriers that would be covered by the exemption already use 
hair analysis as a method for pre-employment controlled substances 
testing of drivers on a voluntary basis. However, they also conduct 
urine testing for drugs because it is the only screening method 
accepted under the Department's regulations. The Applicant's view their 
use of multiple screening methods as an unnecessary and redundant 
financial burden. Also, the Applicants consider urine testing to be 
less effective in pre-employment screening for drugs than hair 
analysis.
    A copy of the exemption application and all supporting documents 
submitted by the Applicant is available for review in the docket 
referenced at the beginning of this notice.
Request for Comments
    In accordance with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA 
requests public comment on the application for an exemption from 49 CFR 
382.105 and 382.301.
    The Agency will consider all comments received by close of business 
on February 21, 2017. Comments will be available for examination in the 
docket at the location listed under the ADDRESSES section of this 
notice. The Agency will consider to the extent practicable comments 
received in the public docket after the closing date of the comment 
period.

    Issued on: January 13, 2017.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2017-01278 Filed 1-18-17; 8:45 am]
 BILLING CODE 4910-EX-P