Notice2022-27849
Controlled Substances and Alcohol Use and Testing: Application for Exemption; The Trucking Alliance
Primary source
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Published
December 23, 2022
Issuing agencies
Transportation DepartmentFederal Motor Carrier Safety Administration
Abstract
FMCSA announces its decision to deny the application from The Alliance for Driver Safety & Security, also known as the Trucking Alliance (as referred to herein), 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." The Trucking Alliance, is comprised of the following motor carriers: Cargo Transporters; Dupre[acute] 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 applicant believes that hair testing enhances public safety by providing a longer detection window for controlled substance use and by minimizing the opportunity for fraud in the specimen collection process. The applicant asserts that because hair testing is more reliable and accurate than urine testing, it is the "appropriate drug testing method for preemployment and random testing protocols." The applicant asserts that there will be no reduction in safety benefits if the exemption is granted. FMCSA analyzed the application and public comments and determined that the Agency lacks the statutory authority to grant the exemption request to amend the definition of actual knowledge to include the employer's knowledge of a driver's positive hair test.
Full Text
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<title>Federal Register, Volume 87 Issue 246 (Friday, December 23, 2022)</title>
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[Federal Register Volume 87, Number 246 (Friday, December 23, 2022)]
[Notices]
[Pages 79061-79064]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-27849]
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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.
ACTION: Notice of final disposition; denial of application for
exemption.
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[[Page 79062]]
SUMMARY: FMCSA announces its decision to deny the application from The
Alliance for Driver Safety & Security, also known as the Trucking
Alliance (as referred to herein), 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.'' The Trucking Alliance, is comprised of the
following motor carriers: Cargo Transporters; Dupre[acute] 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 applicant believes that hair testing enhances public safety by
providing a longer detection window for controlled substance use and by
minimizing the opportunity for fraud in the specimen collection
process. The applicant asserts that because hair testing is more
reliable and accurate than urine testing, it is the ``appropriate drug
testing method for preemployment and random testing protocols.'' The
applicant asserts that there will be no reduction in safety benefits if
the exemption is granted. FMCSA analyzed the application and public
comments and determined that the Agency lacks the statutory authority
to grant the exemption request to amend the definition of actual
knowledge to include the employer's knowledge of a driver's positive
hair test.
FOR FURTHER INFORMATION CONTACT: Mr. Richard Clemente, FMCSA Driver and
Carrier Operations Division; Office of Carrier, Driver and Vehicle
Safety Standards; Telephone: 202-366-2722. Email:
<a href="/cdn-cgi/l/email-protection#6c1e050f040d1e08420f000901090218092c080318420b031a"><span class="__cf_email__" data-cfemail="ee9c878d868f9c8ac08d828b838b809a8bae8a819ac0898198">[email protected]</span></a>. If you have questions on viewing or
submitting material to the docket, contact Docket Services, telephone
(202) 366-9826.
SUPPLEMENTARY INFORMATION:
I. Public Participation
Viewing Comments and Documents
To view comments, go to <a href="http://www.regulations.gov">www.regulations.gov</a>, insert the docket
number ``FMCSA-2022-0127'' in the keyword box, and click ``Search.''
Next, sort the results by ``Posted (Newer-Older),'' choose the first
notice listed, and click ``View Related Comments.''
To view documents mentioned in this notice as being available in
the docket, go to <a href="http://www.regulations.gov">www.regulations.gov</a>, insert the docket number
``FMCSA-2022-0127'' in the keyword box, click ``Search,'' and chose the
document to review.
If you do not have access to the internet, you may view the docket
by visiting Dockets Operations 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., 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.
II. Legal Basis
FMCSA has authority under 49 U.S.C. 31136(e) and 31315(b) to grant
exemptions from certain Federal Motor Carrier Safety Regulations
(FMCSRs). In accordance with 49 U.S.C. 31315(b)(6)(A) and 49 CFR
381.315(a), FMCSA must publish a notice of each exemption request in
the Federal Register (). and 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 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 (up to 5
years) and explain the terms and conditions of the exemption. The
exemption may be renewed (49 CFR 381.300(b)).
III. Background
Federal Regulatory Requirements
For purposes of 49 CFR part 382, subpart B, actual knowledge, as
defined in 49 CFR 382.107, means an employer's actual knowledge that
the driver has engaged in the prohibited use of alcohol or controlled
substances. Employers have actual knowledge of prohibited use based any
of the following events: they directly observe a driver using alcohol
or controlled substances, they receive information provided by the
driver's previous employer(s), they are aware that a driver was issued
a traffic citation for driving a commercial motor vehicle (CMV) while
under the influence of alcohol or controlled substances, or the
employee admits alcohol or controlled substance use, except as provided
in 49 CFR 382.121. An employer's direct observation of prohibited use
does not include observation of employee behavior or physical
characteristics sufficient to warrant reasonable suspicion testing
under 49 CFR 382.207. As used in the definition of actual knowledge,
the term traffic citation means a ticket, complaint, or other document
charging driving a CMV while under the influence of alcohol or
controlled substances.
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 for technical and
scientific issues related to testing for controlled substances. The
Agency acknowledged in its Notice of exemption request (87 FR 52105
(Aug. 24, 2022)) (``the August 24, 2022 Notice'') that FMCSA currently
lacks the statutory authority to grant the Trucking Alliance's request
for exemption because HHS has not yet issued final Mandatory Guidelines
for hair testing. In addition, in section 5402(b)of the Fixing
America's Surface Transportation Act (FAST Act) (Pub. L. 114 94, 49
U.S.C. 31306 note) (Dec. 4, 2015)), Congress required 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 controlled substance for purposes of section 31306 of title 49,
United State 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)) and that such regulations include an exemption for hair
testing for CMV operators with established religious beliefs that
prohibit the cutting or removal of hair.
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
[[Page 79063]]
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.
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.''
IV. Method To Ensure an Equivalent or Greater Level of Safety
The applicant believes that public safety is improved using hair
testing because drug use is more accurately detected with hair testing
than with urine testing. According to the application, the Trucking
Alliance motor carrier members that conduct non-DOT hair testing have
found it is more effective in eliminating lifestyle drug users from the
CMV driver pool, noting it provides ``a better opportunity to learn of
such drug usage through hair analysis because of the longer 90-day
window for detection.'' The applicant also notes that the collection of
hair samples is less invasive than urine collection and minimizes the
possibility the sample will be substituted or adulterated since hair
collections are directly observed. The applicant, citing studies
confirming the efficacy and accuracy of hair testing, asserts that
previous concerns that hair testing results in false positive test
results for African Americans, have been addressed by improvements in
the testing methodology. The applicant also cited court cases upholding
the use of hair testing to detect illicit drug use in the workplace and
in connection with custody and parole compliance. The application sets
forth detailed protocols for the collection and testing of hair
samples, including laboratory standards and cut-off levels, which the
Trucking Alliance members ``propose'' to follow if the exemption
request is granted. The application states that Trucking Alliance
members ``are not seeking to be exempt from complying with the Federal
controlled substance and alcohol use and testing regulations but merely
to allow the compliance to take place in an enhanced form--hair testing
combined with urinalysis.''.
V. Public Comments
On August 24, 2022, FMCSA published The Trucking Alliance's
application and requested public comment [87 FR 52106]. The Agency
received 113 total comments; 31 filed in support, 70 filed in
opposition, and 12 other filers had no position either for or against
the exemption request.
A common point forwarded by comments in opposition, notably from
the Owner-Operator Independent Driver's Association (OOIDA), the
International Brotherhood of Teamsters (IBT) and the National
Association of Small Trucking Companies (NASTC) is that the FMCSA lacks
the current statutory authority to grant the exemption request 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 DACH and to inquiring carriers. OOIDA specifically
commented: ``as stated in the notice of application for exemption, the
Department of Health and Human Services (HHS) has not finalized the
September 2020 proposed hair testing guidelines nor have they been
adopted by the Department of Transportation. The Clearinghouse must
employ proven testing protocols, equipment, and methodology that is
scientifically controlled so that all testing follows specific
procedures using labs that have been approved by the Substance Abuse
and Mental Health Services Administration (SAMHSA). The Clearinghouse
should not accept the results of any hair follicle testing considering
the inconsistencies and inaccuracies involved.''
Similarly, the IBT commented: '' the applicant makes no effort to
explain the application of FMCSA's action to its request, except to
note that FMCSA's determination also involved modification of the
actual knowledge standard. FMCSA's actions to amend the standard in its
2021 rulemaking have no bearing on OTETA authorities or the respective
roles of DOT and HHS in permitting the testing of new specimens, and
this argument must be disregarded.'' The National Waste and Recycling
Association commented that if approved that hair testing not be
mandated for all regulated carriers, and The National School
Transportation Association requested that hair testing be an option,
not a required method of testing. The Sikh Coalition/North American
Punjabi Trucking Association raised the issue of false positives and
faith-based accommodations.
Sixty-five other individuals/small motor carriers also opposed the
request, many of whom raised the issue of adding to the current driver
shortage and supply chain disruption issues indicating that it is
extremely difficult to attract and retain drivers in this industry and
granting this exemption request will only make it that much harder.
Others in opposition claimed that hair testing is not a 100% accurate
testing method.
Those filing comments in support of the exemption request include
the American Trucking Associations, Inc., the Truckload Carriers
Association, the Institute for Safer Truckers/Road Safe America, and
the Independent Carrier Safety Association. Including the applicant,
the following truckload carriers--most of whom are members of the
Trucking Alliance, filed individual comments in support of the request:
J.B. Hunt; Knight-Swift Transportation; Maverick Transportation; Werner
Enterprises; Schneider; KLLM/Frozen Foods Express; Cargo Transporters;
Roehl Transport and Dupre Logistics, LLC. The Trucking Alliance and
several of its member companies commented that nothing in the Federal
statute prohibits FMCSA from implementing what Congress specifically
directed the Secretary of Transportation to do--recognize hair testing
as an acceptable alternative to urine testing. Another predominant
``theme'' from supporting comments is that hair drug testing is a
proven indicator of prior illegal drug use and, in fact, is a more
reliable indicator of illegal drug use than a urinalysis test. Others
in support commented that hair testing should be allowed, and positive
test results from hair testing should be reported in the DACH.
VI. FMCSA Safety Analysis and Decision
The applicant requests an exemption that amend the definition of
``actual knowledge'' to include the employer's knowledge of driver's
non-DOT positive hair test results, which would require such results be
reported to the Clearinghouse. FMCSA evaluated the application and
public comments. The Agency denies the exemption request because, as
explained above in Section III. and in the August 24, 2022 Notice,
FMCSA's current statutory authorities do not allow FMCSA to grant the
requested exemption. 49 U.S.C. 31306(c)(2) requires that FMCSA follow
the HHS scientific and technical guidelines for hair testing, including
mandatory guidelines establishing
[[Page 79064]]
comprehensive standards and procedures for every aspect of laboratory
testing (and ``requiring the use of the best available technology to
ensure the complete reliability and accuracy of controlled substances
tests''), the minimum list of controlled substances for which
individuals may be tested, standards for review and certification of
laboratories that conduct hair testing, and laboratory protocol and
cut-off levels for hair testing to detect controlled substances use.
The HHS issued proposed Hair Mandatory Guidelines for Federal Workplace
Drug Testing Programs (HMG) in 2020 for public comment but has not
issued a final version of the HMG.
The applicant asserts that FMCSA does have the statutory authority
to grant its exemption request, citing 49 U.S.C. 31306a(b)(B)(ii),
which requires that FMCSA adopt regulations permitting pre-employment
hair testing for controlled substances as an alternative to urine
testing for CMV operators and for random testing if the operator was
subject to pre-employment hair testing. By ignoring the requirement
that FMCSA follow the HHS mandatory guidelines for hair testing, set
forth in 49 U.S.C. 31306(c)(2), the applicant effectively argues that
this provision be read in isolation. This approach disregards an
accepted standard of statutory construction, which provides that
statutory text must be construed as a whole. The Committee Report
accompanying the enactment of 49 U.S.C. 31306a(b)(B)(ii) confirms this
is precisely what Congress intended: ``[t]he FMCSA has informed the
conferees, and the conferees agree that nothing in [31306a(b)(B)(ii)]
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). Accordingly, the
Agency currently lacks the authority to permit an employer's actual
knowledge of a driver's positive hair test results to be a basis for
determining that a driver has violated 49 CFR part 382, subpart B, by
engaging in the prohibited use of controlled substances and to permit
such results be reported to the Clearinghouse.
For the above reasons, the Trucking Alliance's exemption
application is denied.
Robin Hutcheson,
Administrator.
[FR Doc. 2022-27849 Filed 12-22-22; 8:45 am]
BILLING CODE 4910-EX-P
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