[Federal Register Volume 87, Number 246 (Friday, December 23, 2022)]
[Notices]
[Pages 79061-79064]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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: 
[email protected]. 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 www.regulations.gov, 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 www.regulations.gov, 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