Commercial Driver's License Program and Controlled Substances and Alcohol Use and Testing; Conforming and Technical Amendments

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Parts 355, 382, 383, 384, 389, 391, and 392

RIN 2125-AE16

Commercial Driver's License Program and Controlled Substances and

Alcohol Use and Testing; Conforming and Technical Amendments

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule; technical amendments.

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SUMMARY: The FHWA is making technical amendments to its regulations

regarding physical qualifications and examinations for interstate

drivers, and controlled substance and alcohol use and testing for

drivers under the commercial driver's license program. The amendments

are necessary to correct minor errors and to remove obsolete

regulations. This final rule will clarify the agency's statutory

authorities and will provide current applicable controlled substances

and alcohol testing regulations.

EFFECTIVE DATE: This rule is effective August 11, 1997.

FOR FURTHER INFORMATION CONTACT: For information regarding program

issues: Mr. Mark Snider, Office of Motor Carrier Safety and Technology,

(202) 366-6121, For information regarding legal issues: Ms. Grace

Reidy, Office of the Chief Counsel--Motor Carrier Law Division, (202)

366-0834, Federal Highway Administration, Department of Transportation,

400 Seventh Street, SW., Washington, DC 20590. Office hours are from

7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal

holidays.

SUPPLEMENTARY INFORMATION: A final rule containing technical

amendments was published in the Federal Register on March 8, 1996

(61 FR 9546) and made conforming amendments to 49 CFR parts 382,

383, 390, 391, and 392. The amendments were necessary to correct

minor errors in the February 15, 1994, final rule (59 FR 7484),

codify final dispositions of waivers of the commercial driver's

license program, and make conforming metrication amendments.

The February 15, 1994, final rule established the dates when

domestic motor carrier employers were to begin testing. Large domestic

employers (each employer with fifty or more drivers on March 17, 1994)

were required to implement the requirements of part 382 on January 1,

1995, and small domestic employers (each employer with less than fifty

drivers on March 17, 1994) were required to implement the requirements

of part 382 on January 1, 1996. Currently, all domestic employers are

required to test for controlled substances and alcohol use as set forth

in part 382. Technical amendments in this rulemaking proceeding will

remove all requirements and references to part 391, subpart H,

Controlled Substance Testing, from parts 355 through 391. The

implementation of part 382 makes part 391, subpart H, obsolete.

The FHWA is also making conforming amendments to replace authority

citations in various regulations in parts 355, 383, 384, 389, 391, and

392. The FHWA's authority has not changed. The authority citations,

however, have been recodified. In certain instances, the regulations

refer to various common names of a congressional act. The FHWA believes

it is better to cite to the United States Code (U.S.C.) rather than the

common name of the act or the public law number.

Rulemaking Analyses and Notices

Because this final rule simply makes minor edits to the FHWA's

regulations to conform them to various U.S.C. citations and to remove

obsolete regulations, the FHWA believes that prior notice and

opportunity for comment are unnecessary under 5 U.S.C. 553(b)(3)(B). In

addition, due to the technical nature of this final rule, the FHWA has

determined that prior notice and opportunity for comment are not

required under the Department of Transportation's regulatory policies

and procedures, as it is not anticipated that such action would result

in the receipt of useful information. In this final rule, the FHWA is

not exercising discretion in a way that could be meaningfully affected

by public comment.

Because this final rule makes conforming amendments and removes

obsolete regulations, the FHWA also believes that good cause exists to

publish this rule less than 30 days before it is effective, as is

ordinarily required under 5 U.S.C. 553(d). Accordingly, the FHWA is

proceeding directly to a final rule which is effective on its date of

publication.

Executive Order 12866 (Regulatory Planning and Review) and DOT

Regulatory Policies and Procedures

The FHWA has determined that this action is neither a significant

regulatory action under Executive Order 12866 or significant under the

Department of Transportation's regulatory policies and procedures. It

is anticipated that the economic impact of this action will not be

substantial because this rule simply makes minor, technical and

conforming changes to the Federal Motor Carrier Safety Regulations

(FMCSRs) to properly cite the FHWA's statutory authority. A full

regulatory evaluation, therefore, is not warranted.

Regulatory Flexibility Act

In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-

612), the FHWA has evaluated the effects of this rule on small

entities. This final rule will make technical and conforming amendments

to various authority citations and remove an obsolete regulation.

Accordingly, the FHWA certifies that this action will not have a

significant economic impact on a substantial number of small entities.

Executive Order 12612 (Federalism Assessment)

This final rule has been analyzed in accordance with the principles

and criteria contained in Executive Order 12612 and it has been

determined this action does not have sufficient federalism implications

to warrant the preparation of a federalism assessment. The amendments

made by this rule do not have a substantial direct effect on the

States, nor on the relationship or distribution of power between the

national government and the States because these changes do little to

limit the policymaking discretion of the States. The only direct impact

to the various States will be the requirement for the Governors of

States to modify their certification statements for compliance with 49

CFR 384.305. This statement incorrectly cites the proper authority

necessary for a Governor to certify substantial compliance with the

FMCSRs.

To the extent these amendments require States to make minor

modifications to their laws or regulations, a State must make these

amendments to obtain Motor Carrier Safety Assistance Program benefits.

The rule, therefore, is not intended to preempt any State law or State

regulation. Moreover, the changes made by this rule would impose no

additional cost or burden upon any State. Nor will the rule have a

significant effect upon the ability of the States to discharge

traditional State governmental functions. The FHWA, therefore, is not

required to prepare a separate Federalism Assessment for this rule.

Executive Order 12372 (Intergovernmental Review)

Catalog of Federal Domestic Assistance Program Number 20.217,

[[Page 37151]]

Motor Carrier Safety. The regulations implementing Executive Order

12372 regarding intergovernmental consultation on Federal programs and

activities do not apply to this program.

Paperwork Reduction Act

This final rule does not contain new information collection

requirements for purposes of the Paperwork Reduction Act of 1995, 44

U.S.C. 3501-3520.

National Environmental Policy Act

The agency has analyzed this action for the purpose of the National

Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and has

determined that this action will not have any effect on the quality of

the environment.

Regulation Identification Number

A regulation identification number (RIN) is assigned to each

regulatory action listed in the Unified Agenda of Federal Regulations.

The Regulatory Information Service Center publishes the Unified Agenda

in April and October of each year. The RIN contained in the heading of

this document can be used to cross reference this action with the

Unified Agenda.

List of Subjects in 49 CFR 355, 382, 383, 384, 389, 391, and 392

Alcohol testing, Controlled substances testing, Drivers, Highways

and roads, Highway safety, Motor carriers, Motor vehicle safety,

Reporting and recordkeeping requirements, Safety, Transportation.

Issued on: June 27, 1997.

Jane F. Garvey,

Acting Administrator for the Federal Highway Administration.

In consideration of the foregoing, the FHWA is amending title 49,

CFR, chapter III, parts 355, 382, 383, 384, 389, 391, and 392 as set

forth below:

PART 355--[AMENDED]

1. The authority citation for 49 CFR part 355 is revised to read as

follows:

Authority: 49 U.S.C. 504 and 31101 et seq.; 49 CFR 1.48.

2. In appendix A, under the headings ``Definitions'' and ``Driver

Qualifications'' revise the paragraphs to read as follows:

Appendix A to Part 355--Guidelines for the Regulatory Review

* * * * *

Definitions

Definitions of terms must be consistent with those in the FMCSR.

For example, a commercial motor vehicle is a vehicle operating in

interstate commerce on a public highway, that:

(1) Has a gross vehicle weight rating (GVWR) of 4,537 or more

kilograms;

(2) Is designed to transport more that 15 passengers (including

the driver); or

(3) Is used to transport hazardous materials in a quantity

requiring placarding under regulations issued by the Secretary under

the Hazardous Materials Transportation Act, as amended (49 U.S.C.

5101 et seq.).

Driver Qualifications

Require a driver to be properly licensed to drive a commercial

motor vehicle; require a driver to be in good physical health, at

least 21 years of age, able to operate a vehicle safely, and

maintain a good driving record; prohibit drug and alcohol abuse;

require a motor carrier to maintain a driver qualification file for

each driver; and require a motor carrier to ensure that a driver is

medically qualified.

Note: The requirements for testing apply only to drivers of

commercial motor vehicles as defined in 49 CFR part 383.

* * * * *

PART 382--[AMENDED]

3. 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 1.48.

4. Section 382.115 is revised to read as follows:

Sec. 382.115 Starting date for testing programs.

(a) All domestic employers. Each domestic-domiciled employer that

begins commercial motor vehicle operations will implement the

requirements of this part on the date the employer begins such

operations.

(b) Large foreign employers. Each foreign-domiciled employer with

fifty or more drivers assigned to operate commercial motor vehicles in

North America on December 17, 1995, must implement the requirements of

this part beginning on July 1, 1996.

(c) Small foreign employers. Each foreign-domiciled employer with

less than fifty drivers assigned to operate commercial motor vehicles

in North America on December 17, 1995, must implement the requirements

of this part beginning on July 1, 1997.

(d) All foreign employers. Each foreign-domiciled employer that

begins commercial motor vehicle operations in the United States after

December 17, 1995, but before July 1, 1997, must implement the

requirements of this part beginning on July 1, 1997. A foreign employer

that begins commercial motor vehicle operations in the United States on

or after July 1, 1997, must implement the requirements of this part on

the date the foreign employer begins such operations.

5-6. In Sec. 382.401, paragraph (c)(6) is amended by adding the

word ``and'' at the end of paragraph (c)(6)(iii); by removing ``; and''

and adding a period at the end of paragraph (c)(6)(iv); and by removing

paragraph (c)(6)(v), and paragraph (e)(1) is revised to read as

follows:

Sec. 382.401 Retention of records.

* * * * *

(e)(1) OMB control number. The information collection requirements

of this part have been reviewed by the Office of Management and Budget

pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et

seq.) and have been assigned OMB control number 2125-0543.

* * * * *

PART 383--[AMENDED]

7. The authority citation for 49 CFR part 383 continues to read as

follows:

Authority: 49 U.S.C. 31136, 31301 et seq., and 31502; and 49 CFR

1.48.

8. Section 383.5 is amended by revising the term ``controlled

substance'' to read as follows:

Sec. 383.5 Definitions.

* * * * *

Controlled substance has the meaning such term has under 21 U.S.C.

802(6) and includes all substances listed on schedules I through V of

21 CFR 1308 (Secs. 1308.11 through 1308.15), as they may be amended by

the United States Department of Justice.

* * * * *

9. Section 383.51 is amended by revising paragraphs (b)(2)(ii) and

(b)(2)(v); and by removing the reference ``(49 U.S.C. App. 1801-1813)''

and replacing it with ``(49 U.S.C. 5101 et seq.)'' in paragraphs

(b)(3)(i), (b)(3)(ii), and (d)(2)(iv) in all places it appears. As

revised, paragraphs (b)(2)(ii) and (b)(2)(v) read as follows:

Sec. 383.51 Disqualification of drivers.

* * * * *

(b) * * *

(2) * * *

(ii) Driving a commercial motor vehicle while under the influence

of a controlled substance as defined by Sec. 383.5 of this part.

* * * * *

(v) The use of a commercial motor vehicle in the commission of a

felony involving manufacturing, distributing, or dispensing a

controlled substance as defined by Sec. 383.5 of this part.

* * * * *

10. In Sec. 383.111, paragraph (a) is amended by adding ``382,''

between the words ``49 CFR parts'' and ``391''.

[[Page 37152]]

PART 384--[AMENDED]

11. The authority citation for 49 CFR part 384 continues to read as

follows:

Authority: 49 U.S.C. 31136, 31301 et seq., and 31502; and 49 CFR

1.48.

12. Section 384.101 is revised to read as follows:

Sec. 384.101 Purpose and scope.

(a) Purpose. The purpose of this part is to ensure that the States

comply with the provisions of section 12009(a) of the Commercial Motor

Vehicle Safety Act of 1986 (49 U.S.C. 31311(a)).

(b) Scope. This part:

(1) Includes the minimum standards for the actions States must take

to be in substantial compliance with each of the 22 requirements of 49

U.S.C. 31311(a);

(2) Establishes procedures for determinations to be made of such

compliance by States; and

(3) Specifies the consequences of State noncompliance.

13. Section 384.301 is revised to read as follows:

Sec. 384.301 Substantial compliance--general requirement.

To be in substantial compliance with 49 U.S.C. 31311(a), a State

must meet each and every standard of subpart B of this part by means of

the demonstrable combined effect of its statutes, regulations,

administrative procedures and practices, organizational structures,

internal control mechanisms, resource assignments (facilities,

equipment, and personnel), and enforcement practices.

14. Section 384.305(b) is revised to read as follows:

Sec. 384.305 State certifications for Federal fiscal years after FY

1994.

* * * * *

(b) Certification content. The certification shall consist of a

statement signed by the Governor of the State, or by an official

designated by the Governor, and reading as follows: ``I (name of

certifying official), (position title), of the State (Commonwealth) of

______, do hereby certify that the State (Commonwealth) has

continuously been in substantial compliance with all requirements of 49

U.S.C. 31311(a), as defined in 49 CFR 384.301, since [the first day of

the current Federal fiscal year], and contemplates no changes in

statutes, regulations, or administrative procedures, or in the

enforcement thereof, which would affect such substantial compliance

through [the last date of the current Federal fiscal year].''

(Approved by the Office of Management and Budget under control

number 2125--0542)

15. Section 384.309 is revised to read as follows:

Sec. 384.309 Results of compliance determination.

(a) A State shall be determined not substantially in compliance

with 49 U.S.C. 31311(a) for any fiscal year in which it:

(1) Fails to submit the certification as prescribed in this

subpart; or

(2) Does not meet one or more of the standards of subpart B of this

part, as established in a final determination by the FHWA under

Sec. 384.307(c).

(b) A State shall be in substantial compliance with 49 U.S.C.

31311(a) for any fiscal year in which neither of the eventualities in

paragraph (a) of this section occurs.

PART 389--[AMENDED]

16. The authority citation for part 389 is revised to read as

follows:

Authority: 49 U.S.C. 104, 501 et seq., 31101 et seq., 31138,

31139, 31301 et seq., and 31502; 42 U.S.C. 4917; and 49 CFR 1.48.

17. Section 389.1 is revised to read as follows:

Sec. 389.1 Applicability.

This part prescribes rulemaking procedures that apply to the

issuance, amendment and revocation of rules under an Act.

18. Section 389.3 is revised to read as follows:

Sec. 389.3 Definitions.

Act means statutes granting the Secretary authority to regulate

motor carrier safety.

Administrator means the Federal Highway Administrator.

19. Section 389.11 is revised to read as follows:

Sec. 389.11 General.

Unless the Administrator, for good cause, finds a notice is

impractical, unnecessary, or contrary to the public interest, and

incorporates such a finding and a brief statement of the reasons for it

in the rule, a notice of proposed rulemaking must be issued, and

interested persons are invited to participate in the rulemaking

proceedings involving rules under an Act.

PART 391--[AMENDED]

20. The authority citation for part 391 continues to read as

follows:

Authority: 49 U.S.C. 504, 31133, 31136, and 31502; and 49 CFR

1.48.

21. Section 391.15 is amended by revising paragraphs (c)(2) (ii)

and (iii) to read as follows:

Sec. 391.15 Disqualification of drivers.

* * * * *

(c) * * *

(2) * * *

(ii) Driving a commercial motor vehicle under the influence of a 21

CFR 1308.11 Schedule I identified controlled substance, an amphetamine,

a narcotic drug, a formulation of an amphetamine, or a derivative of a

narcotic drug;

(iii) Transportation, possession, or unlawful use of a 21 CFR

1308.11 Schedule I identified controlled substance, amphetamines,

narcotic drugs, formulations of an amphetamine, or derivatives of

narcotic drugs while the driver is on duty, as the term on-duty time is

defined in Sec. 395.2 of this subchapter;

* * * * *

22-23. Section 391.41 is amended by revising paragraph (b)(12) and

by removing paragraph (c) to read as follows:

Sec. 391.41 Physical qualifications for drivers.

* * * * *

(b) * * *

(12)(i) Does not use a controlled substance identified in 21 CFR

1308.11 Schedule I, an amphetamine, a narcotic, or any other habit-

forming drug.

(ii) Exception. A driver may use such a substance or drug, if the

substance or drug is prescribed by a licensed medical practitioner who:

(A) Is familiar with the driver's medical history and assigned

duties; and

(B) Has advised the driver that the prescribed substance or drug

will not adversely affect the driver's ability to safely operate a

commercial motor vehicle; and

* * * * *

Sec. 391.43 [Amended]

24. Section 391.43 is amended as follows:

A. In paragraph (a), remove paragraph (a)(2) and redesignate

``(a)(1)'' as ``(a)'';

B. Under the heading ``Instructions for Performing and Recording

Physical Examinations'' remove the entry for ``Controlled Substances

Testing'', but leave unchanged the undesignated paragraph reading ``The

medical examiner must date and sign his/her findings upon completion of

the examination.''; and

C. Under the undesignated center heading ``Physical Examination''

remove the following entry on controlled substances testing:

``Controlled Substances Testing

Controlled substances test performed--

In accordance with subpart H.

Not in accordance with subpart H.

Controlled substances test NOT performed.''

[[Page 37153]]

Subpart H--[Removed]

25. Subpart H of part 391, consisting of Secs. 391.81 through

391.125, is removed.

PART 392--[AMENDED]

26. The authority citation for part 392 continues to read as

follows:

Authority: 49 U.S.C. 31136 and 31502; and 49 CFR 1.48.

27. Section 392.4 is amended by revising paragraph (a)(1) to read

as follows:

Sec. 392.4 Drugs and other substances.

* * * * *

(1) Any 21 CFR 1308.11 Schedule I substance;

* * * * *

Appendices D and E--[Removed and Reserved]

28. Appendices D and E to subchapter B of chapter III are removed

and reserved.

[FR Doc. 97-18260 Filed 7-10-97; 8:45 am]

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