Controlled Substances and Alcohol Use and Testing: Application for Exemption; The Trucking Alliance Publication: Federal Register Signing Official: Larry W. Minor Agency: Federal Motor Carrier Safety Administration Date: 24 August 2022 Topic: The Trucking Alliance

[Federal Register Volume 87, Number 163 (Wednesday, August 24, 2022)]
[Notices]
[Pages 52105-52107]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-18257]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2022-0127]


Controlled Substances and Alcohol Use and Testing: Application 
for Exemption; The Trucking Alliance

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

[[Page 52106]]


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

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SUMMARY: FMCSA announces that it has received an application for 
exemption from The Trucking Alliance, a group comprised of the 
following motor carriers: Cargo Transporters; Dupr[eacute] Logistics 
LLC; Frozen Food Express; J.B. Hunt Transport, Inc.; KLLM Transport 
Services; Knight Transportation; Maverick Transportation LLC; 
Schneider; Swift Transportation; USXpress; and May Trucking Company. 
The Trucking Alliance applied for an exemption from the Federal Motor 
Carrier Safety Regulations (FMCSRs) ``to amend the definition of actual 
knowledge to include the employer's knowledge of a driver's positive 
hair test, which would require such results be reported to the FMCSA 
Drug and Alcohol Clearinghouse (``Clearinghouse'') and to inquiring 
carriers.'' Although FMCSA lacks the statutory authority to grant the 
Trucking Alliance's request for exemption until the Department of 
Health and Human Services has taken certain action, FMCSA requests 
public comment on the exemption application, as required by statute.

DATES: Comments must be received on or before September 23, 2022.

ADDRESSES: You may submit comments identified by Federal Docket 
Management System (FDMS) Number FMCSA-2022-0127 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: Dockets Operations, 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: (202) 493-2251.
    Each submission must include the Agency name and the docket number 
(FMCSA-2022-0127) 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. To be sure someone is there to help you, 
please call (202) 366-9317 or (202) 366-9826 before visiting Dockets 
Operations.
    Privacy Act: In accordance with 49 U.S.C. 31315(b), DOT solicits 
comments from the public to better inform its exemption 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 
https://www.transportation.gov/privacy, the comments are searchable by 
the name of the submitter.

FOR FURTHER INFORMATION CONTACT: Mr. Richard Clemente, Driver and 
Carrier Operations Division; Office of Carrier, Driver and Vehicle 
Safety Standards, FMCSA, at (202) 366-2722 or by email at 
MCPSD@dot.gov. If you have questions on viewing or submitting material 
to the docket, contact Dockets Operations at (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-2022-0127), 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-2022-0127'') in the ``Keyword'' box, and 
click ``Search.'' When the new screen appears, click on the ``Comment'' 
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.

II. Legal Basis

    FMCSA has authority under 49 U.S.C. 31136(e) and 31315(b) to grant 
exemptions from 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 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 Agency must 
publish its decision 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 specify the effective period and explain the terms and 
conditions of the exemption. The exemption may be renewed (49 CFR 
381.300(b)).

III. Applicant's Request

    The Trucking Alliance applied for ``an exemption from 49 CFR 
382.107 to amend the definition of actual knowledge to include the 
employer's knowledge of a driver's positive hair test, which would 
require such results be reported to the FMCSA Drug and Alcohol 
Clearinghouse (``Clearinghouse'') and to inquiring carriers as required 
to comply with 49 CFR 391.23.''
    A copy of The Trucking Alliance's application for exemption is 
available for review in the docket for this notice.

IV. Statutory Requirements for FMCSA's Drug and Alcohol Testing Program

    FMCSA drug and alcohol use and testing regulations are authorized 
by the Omnibus Transportation Employee Testing Act of 1991 (OTETA) 
(Pub. L. 102-143, Title V, 105 Stat. 917, at 952, codified at 49 U.S.C. 
31306). Section 31306(c)(2) requires that DOT follow the Department of 
Health and Human Services' (HHS) Mandatory Guidelines

[[Page 52107]]

for technical and scientific testing issues. Thus, while DOT has 
discretion concerning many aspects of the regulations governing testing 
in the transportation industries' regulated programs, DOT and FMCSA 
must follow the HHS Mandatory Guidelines for the laboratory standards 
and procedures used for regulated testing. Therefore, allowing the use 
of a non-DOT drug test to serve as the basis for an actual knowledge 
report under 49 CFR part 382 is contrary to OTETA.
    FMCSA notes that in section 5402(b) of the Fixing America's Surface 
Transportation Act (FAST Act) (Pub. L. 114-94, 129 Stat. 1548, codified 
at 49 U.S.C. 31306 note) (Dec. 4, 2015)), Congress required that the 
U.S. Department of Health and Human Services (HHS) ``not later than one 
year after . . . this Act, . . . issue scientific and technical 
guidelines for hair testing as a method of detecting the use of a 
controlled substance for purposes of section 31306 of title 49, United 
States Code.'' The FAST Act also amended OTETA by adding a requirement 
that FMCSA's drug and alcohol testing regulations permit the use of 
hair testing as an acceptable alternative to urine testing for pre-
employment drug testing, and for random drug testing when the driver 
was subject to pre-employment hair testing (49 U.S.C. 31306(b)(1)(B)). 
The Conference Report accompanying the FAST Act noted that ``[t]he 
FMCSA has informed the conferees, and the conferees agree that nothing 
in section 5402 authorizes the use of hair testing as an alternative to 
urine tests until the U.S. Department of Health and Human Services 
establishes federal standards for hair testing'' (emphasis added).[ 
H.R. Rep. 114-357, at 506 (Dec. 1, 2015)]
    HHS issued proposed Mandatory Guidelines for Federal Workplace Drug 
Testing Using Hair (HMG) in 2020 (85 FR 56108 (September 10, 2020)). 
However, HHS has not yet issued a final version of the HMG.

V. Request for Comments

    In accordance with 49 U.S.C. 31315(b), FMCSA requests public 
comment from all interested persons on The Trucking Alliance's 
application for an exemption from 49 CFR 382.107. All comments received 
before the close of business on the comment closing date indicated at 
the beginning of this notice will be considered and will be available 
for examination in the docket at the location listed under the 
Addresses section of this notice. Comments received after the comment 
closing date will be filed in the public docket and will be considered 
to the extent practicable. In addition to late comments, FMCSA will 
also continue to file, in the public docket, relevant information that 
becomes available after the comment closing date. Interested persons 
should continue to examine the public docket for new material.

Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2022-18257 Filed 8-23-22; 8:45 am]
BILLING CODE 4910-EX-P