59574 Federal Register / Vol. 76, No. 187 / Tuesday, September 27, 2011 / Rules and Regulations 

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* * * * * 

■ 11. Amend § 101.603 by revising 

paragraph (a)(7) to read as follows: 

§ 101.603 Permissible communications. 

(a) * * * 

(7) Licensees may transmit program 

material from one location to another; 

* * * * * 

[FR Doc. 2011–23001 Filed 9–26–11; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

49 CFR Part 40 

[Docket DOT–OST–2010–0161] 

RIN 2105–AE13 

Procedures for Transportation 

Workplace Drug and Alcohol Testing 

Programs: Federal Drug Testing 

Custody and Control Form; Technical 

Amendment 

AGENCY: Office of the Secretary, DOT. 

ACTION: Final Rule; Technical 

Amendment. 

SUMMARY: On September 27, 2010, the 

U.S. Department of Transportation 

(DOT) published an interim final rule 

(IFR) authorizing the use of a new 

Federal Drug Testing Custody and 

Control Form (CCF) in its drug testing 

program. Use of the form is authorized 

beginning October 1, 2010. This final 

rule responds to comments to the IFR 

and will finalize the authorization and 

procedures for using the new CCF for 

DOT-required drug tests. The intended 

effect of this final rule is to finalize the 

authority for use of the new CCF and to 

make a technical amendment to its drug 

testing procedures by amending a 

provision of the rule which was 

inadvertently omitted from a final rule 

in August 2010. The September 27, 2010 

final rule was published under RIN 

2105–AE03, however, it was 

inadvertently shown as a completed 

action on the Fall 2010 Agenda; this 

action replaces RIN 2105–AE03. 

DATES: The rule is effective September 

27, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Bohdan Baczara, U.S. Department of 

Transportation, Office of Drug and 

Alcohol Policy and Compliance, 1200 

New Jersey Avenue, SE., Washington, 

DC 20590; 202–366–3784 (voice), 202– 

366–3897 (fax), or 

bohdan.baczara@dot.gov (e-mail). 

SUPPLEMENTARY INFORMATION: 

Background and Purpose 

All urine specimens collected under 

the DOT drug testing regulation, 49 CFR 

Part 40, must be collected using chainof-custody procedures that incorporate 

the use of the CCF promulgated by the 

Department of Health and Human 

Services (HHS). On November 17, 2009, 

HHS published a proposal to revise the 

CCF [74 FR 59196]. In their proposal, 

HHS stated that the CCF is used for the 

Federal workplace drug testing program, 

but also pointed out that DOT 

‘‘* * *requires its regulated industries 

to use the Federal CCF’’ [74 FR 59196]. 

Because many of the commentors to the 

HHS proposal were transportation 

industry employers, Consortia/Thirdparty Administrators (C/TPAs), and 

associations, the Department was 

confident the commentors understood 

the new CCF would be used in the DOTregulated program. All the comments 

submitted were thoroughly reviewed by 

HHS and taken into consideration in 

fashioning the new CCF. The 

Department worked closely with HHS 

on the new CCF. HHS announced the 

new CCF in the Federal Register [75 FR 

41488]. The CCF became effective date 

of October 1, 2010. 

However, because of the short time 

frame between the HHS publication of 

the new CCF and its October 1, 2010 

effective date, the Department did not 

have an opportunity to propose a 

rulemaking and therefore issued an 

Interim Final Rule (IFR) on September 

27, 2010 [75 FR 59105] authorizing 

DOT-regulated employers to also begin 

using the new CCF on October 1, 2010. 

The Department sought comments only 

on the actual implementation of the new 

CCF, and not on the form itself because 

HHS already sought and received 

comments on the form and its use 

because many of the commentors to the 

HHS proposal were transportation 

industry employers, C/TPAs, and 

associations. In the IFR, the Department 

made minor procedural amendments to 

the regulation to merely reflect the 

changes HHS made to the revised CCF, 

and clarified how collectors, 

laboratories, and medical review officers 

(MROs) must use the new form in the 

DOT regulated context. There were 15 

comments from four commentors. 

The Department is also making a 

technical amendment to address an 

omission in the rule text of a final rule 

published on August 16, 2010 [75 FR 


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Federal Register / Vol. 76, No. 187 / Tuesday, September 27, 2011 / Rules and Regulations 59575 

1For purposes of following the requirements of 

49 CFR Part 40, ‘‘DOT, The Department, DOT 

Agency’’ is defined, at 40.3, to include the United 

States Coast Guard. 

49850]. Specifically, we had removed 

the requirement in § 40.121(d) for the 

MRO to complete continuing education 

units to satisfy the requalification 

training requirement but we failed to 

amend the definition of ‘‘Continuing 

education’’ in § 40.3 to reflect this 

change. We do so in this Final Rule. 

Section-by-Section Discussion 

The following part of the preamble 

discusses comments to each of the 

amended rule text sections. 

Section 40.14 What collection 

information must employers provide to 

collectors? 

The Department added a new § 40.14 

to put into one section the information 

employers or their C/TPAs have been 

routinely providing collectors or should 

have been providing collectors; 

information such as, the reason for the 

test, whether the test is to be conducted 

under direct observation, the MRO 

name and address, and employee 

information (e.g., name and SSN or ID 

number), etc. All of this information 

would need to be provided in Step 1 of 

the CCF. Since a new Step 1–D was 

added to the CCF to specify which DOT 

Agency regulates the employee’s safetysensitive function, we included this 

among the information the employer or 

its C/TPA must provide to the collector. 

One commentor, a large laboratory 

with many collection sites, concurred 

with the requirement for employers or 

C/TPAs to ensure the collector has the 

necessary information to complete Step 

1. The commentor went on to say that 

it relied on the employer or C/TPA to 

pre-mark the demographic information 

(e.g., test reason, testing authority) in 

Step 1 since its collection sites don’t 

keep employer-specific CCFs at their 

sites and the employee may not know 

this information. When the employer 

pre-marks this information, this helps 

ensure the information is completed 

correctly. The Department agrees. In the 

event Step 1 is not pre-marked, the 

employer would need to ensure the 

information is provided to the collector. 

Two commentors, apparently from the 

same collection site, were concerned 

that requiring the employer to provide 

the DOT Agency information would be 

confusing for the employers and that not 

knowing this information would delay 

the testing process. They stated ‘‘* * * 

there are many instances when the 

employer has no idea if their donor is 

DOT or non-DOT’’ and ‘‘When inquiring 

of employers’ DER to supply this 

information the majority of the 

responses are ’I don’t know!’ The 

Department also received several 

telephonic requests for clarification 

since October 1 in which collectors 

questioned how they would know this 

information if the employer didn’t know 

it themselves. 

The Department believes the collector 

should never be put in a situation to 

determine the DOT Agency that 

regulates an employee’s safety-sensitive 

functions. This is the employer’s 

responsibility. Furthermore, the 

Department was surprised to hear that 

any employer currently regulated by 

DOT would not know which DOT 

Agency regulates it. We can only 

surmise this is a rare occurrence and 

there is no reason to believe it is a 

systemic problem. Perhaps it was 

because the employer forgot the specific 

abbreviation of its respective regulator: 

Federal Motor Carrier Safety 

Administration (FMCSA); Federal 

Aviation Administration (FAA); Federal 

Railroad Administration (FRA); Federal 

Transit Administration (FTA); Pipeline 

and Hazardous Materials Safety 

Administration (PHMSA); and the 

United States Coast Guard (USCG).1

Nevertheless, not knowing this 

fundamental concept raised serious 

concerns and compliance questions. For 

example: Is the employer subject to the 

DOT’s drug and alcohol testing 

regulations? If the employer is covered 

by the DOT regulations, then other 

questions arise. Is the employer testing 

its employees at the proper random 

testing rates? Is the employer 

conducting post-accident tests when 

required? Is the employer providing the 

correct educational material to its 

employees as required by the DOT 

regulations? Is the employer 

appropriately filling-out and submitting 

Management Information System (MIS) 

reports? 

In response to the comment that 

employers do not know which DOT 

Agency regulates them or their 

employees’ safety-sensitive functions, 

we encourage employers and their C/ 

TPAs to review the guidance documents 

available to them on our site http:// 

www.dot.gov/odapc and affirm their 

regulating DOT Agency. The 

Department is also providing the 

following to assist employers and C/ 

TPAs with understanding these critical 

elements: 

Federal Motor Carrier Safety 

Administration (FMCSA) 

Covered employee: A person who 

operates (i.e., drives) a Commercial 

Motor Vehicle (CMV) with a gross 

vehicle weight rating (gvwr) of 26,001 or 

more pounds; or is designed to transport 

16 or more occupants (to include the 

driver); or is of any size and is used in 

the transport of hazardous materials that 

require the vehicle to be placarded. 

Federal Railroad Administration (FRA) 

Covered employee: A person who 

performs hours of service functions at a 

rate sufficient to be placed into the 

railroad’s random testing program. 

Categories of personnel who normally 

perform these functions are locomotive 

engineers, trainmen, conductors, 

switchmen, locomotive hostlers/helpers, 

utility employees, signalmen, operators, 

and train dispatchers. 

Federal Aviation Administration (FAA) 

Covered employee: A person who 

performs flight crewmember duties, 

flight attendant duties, flight instruction 

duties, aircraft dispatch duties, aircraft 

maintenance or preventive maintenance 

duties; ground security coordinator 

duties; aviation screening duties; and 

air traffic control duties. Note: Anyone 

who performs the above duties directly 

or by contract for a part 119 certificate 

holder authorized to operate under parts 

121 and/or 135, air tour operators 

defined in 14 CFR part 91.147, and air 

traffic control facilities not operated by 

the Government are considered covered 

employees. 

Federal Transit Administration (FTA) 

Covered employee: A person who 

performs a revenue vehicle operation; 

revenue vehicle and equipment 

maintenance; revenue vehicle control or 

dispatch (optional); Commercial Drivers 

License non-revenue vehicle operation; 

or armed security duties. 

Pipeline and Hazardous Materials 

Safety Administration (PHMSA) 

Covered employee: A person who 

performs on a pipeline or liquefied 

natural gas (LNG) facility an operation, 

maintenance, or emergency-response 

function. 

United States Coast Guard (USCG) 

Covered employee: A person who is 

on board a vessel acting under the 

authority of a license, certificate of 

registry, or merchant mariner’s 

document. Also, a person engaged or 

employed on board a U.S. owned vessel 

and such vessel is required to engage, 

employ or be operated by a person 

holding a license, certificate of registry, 

or merchant mariner’s document. 

Employers and their C/TPAs that may 

have DOT Agency-specific questions 

can find the DOT Agency drug and 

alcohol program manager contact 


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information at http://www.dot.gov/ 

odapc/oamanagers.html. 

Section 40.23 What actions do 

employers take after receiving verified 

test results? 

In paragraph (f)(4) of this section, we 

added the DOT Agency to the items an 

employer must instruct the collector to 

note on the CCF. There were no 

comments to this section. 

Section 40.45 What form is used to 

document a DOT urine collection? 

In paragraph (b) of this section, we 

changed the date after which an expired 

CCF is not to be used and in paragraph 

(c)(3) of this section, we permitted 

employers to preprint the box of the 

DOT Agency under whose authority the 

test will occur. There were two 

comments to this section. One 

commentor thanked the Department for 

authorizing the use of the old CCF until 

September 30, 2011, stating the yearlong transition to the new CCF would 

provide employers and their service 

agents ample time to deplete their stock 

of old CCFs. The other commentor 

pointed out that the old CCF expires 

November 30, 2011, and suggested that 

the inadvertent use of the old CCF be 

permitted until this date. The 

Department agrees with the commentor 

about extending the use of the old CCF 

until November 30, 2011 so that it 

coincides with the form’s actual 

expiration date. We have amended the 

rule text to reflect this change, so that 

the use of an old CCF would be a flaw 

that would require correction after 

November 30, 2011. 

Section 40.63 What steps does the 

collector take in the collection process 

before the employee provides a urine 

specimen? 

In paragraph (e) of this section we 

revised the rule text to provide the 

collector with specific instructions on 

completing Step 2 of the CCF. One 

commentor concurred with this change. 

The same commentor asked for 

clarification that a collector’s failure to 

note the DOT Agency in Step 1–D was 

not a flaw that would require the 

collector to contact the DER to obtain 

the missing information. See our 

response to § 40.209. 

Section 40.83 How do laboratories 

process incoming specimens? 

In paragraph (a) of this section we 

made a nomenclature change from 

‘‘laboratory copy’’ to ‘‘Copy 1’’. One 

commentor agreed with this change. 

The commentor wondered if DOT 

wanted laboratories to document the 

DOT Agency information from the CCF 

into their systems. We neither proposed 

that, nor will we require that. 

Section 40.97 What do laboratories 

report and how do they report it? 

We revised paragraphs (a)(2)(i) and 

(ii), and (e)(1) of this section to require 

the laboratory to include the numerical 

values for the drug(s) or drug 

metabolite(s) in their report to the MRO. 

One commentor agreed with this 

change. The commentor wondered if 

DOT wanted laboratories to report the 

DOT Agency information from the CCF 

to the MRO. We neither proposed that, 

nor will we require that. 

Section 40.129 What are the MRO’s 

functions in reviewing laboratory 

confirmed non-negative drug test 

results? 

In paragraph (c) of this section we 

revised the rule text with specific 

instructions to the MRO on completing 

Step 6 of Copy 2 of the CCF. There were 

no comments to this section. 

Section 40.163 How does the MRO 

report drug test results? 

In paragraph (c)(10) of this section we 

required the MRO to indicate the DOT 

Agency on their written report to the 

employer if the DOT Agency is noted on 

the CCF. There were two comments to 

this change. One commentor asked for 

clarification on what action a MRO is to 

take if the DOT Agency is not noted on 

the CCF. The other commentor 

disagreed with the MRO including the 

DOT Agency on the result report to the 

employer for the following reasons: (1) 

The absence of the DOT Agency being 

marked on the CCF is not a flaw 

requiring corrective action, (2) some 

service agents may view the absence of 

the DOT Agency information as an item 

that requires corrective action by the 

collector, (3) there is no current 

requirement for the service provider’s 

information system to capture this data 

element, (4) some service agents may 

view this change as a requirement for 

the laboratory to include the DOT 

Agency information on their electronic 

reports to the MRO, and (5) the DOT 

Agency information would be on the 

employer’s copy of the CCF. 

Regarding the comment asking for 

clarification on what action a MRO is to 

take if the DOT Agency is not noted on 

the CCF, the MRO is not to delay the 

medical review process and report the 

verified result to the employer. As we 

said in the IFR, ‘‘* * *the laboratory 

and MRO should note that the testing 

authority box was not checked and 

continue with processing, testing, 

verifying, and reporting the specimen 

result, as appropriate’’. [75 FR 59106] 

Regarding the comment to not including 

the DOT Agency on the result report to 

the employer, we agree that the 

designation adds nothing to the 

employer’s knowledge of the test 

outcome. We have removed the 

requirement from the rule text. 

Section 40.187 What does the MRO do 

with split specimen laboratory results? 

In paragraph (f) of this section, we 

revised the rule text on how a MRO is 

to document split specimen test results. 

There were no comments to this section. 

Section 40.191 What is a refusal to 

take a DOT drug test, and what are the 

consequences? 

In paragraph (d)(2) of this section we 

revised the rule text on how a MRO is 

to document a ‘‘Refusal to Test’’. There 

were no comments this section. 

Section 40.193 What happens when 

an employee does not provide a 

sufficient amount of urine for a drug 

test? 

In paragraph (d)(2)(i) of this section 

we revised the rule text on how a MRO 

is to complete Step 6 on Copy 2 of the 

CCF when recording a ‘‘Refusal to Test’’. 

There were no comments to this section. 

Section 40.203 What problems cause a 

drug test to be cancelled unless they are 

corrected? 

In paragraph (d)(2) of this section we 

made a nomenclature change from 

‘‘laboratory copy’’ to ‘‘Copy 1’’. In 

paragraph (d)(3) we revised the time 

period during which the use of an 

expired form would not cause the test 

to be canceled. One commentor did 

‘‘* * *not believe that use of an expired 

CCF should result in a cancelled test— 

especially in a post-accident testing 

situation.’’ The commentor suggests, as 

they did in an earlier comment, that use 

of the old CCF be permitted until its 

expiration date of November 30, 2011 

and that use after that date be 

considered a ‘‘correctable flaw’’. See our 

response to § 40.45. 

Section 40.209 What procedural 

problems do not result in the 

cancellation of a test and do not require 

corrective action? 

We revised paragraph (b)(1) of this 

section to say that omitting the DOT 

Agency in Step 1–D of the CCF would 

be an administrative mistake that would 

not result in the cancellation of a test 

and would not require corrective action. 

One commentor, a large laboratory, 

agreed that omitting the DOT Agency in 

Step 1–D of the CCF should be a mistake 

that would not require corrective action. 

Another commentor, a national 


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Federal Register / Vol. 76, No. 187 / Tuesday, September 27, 2011 / Rules and Regulations 59577 

association, asked for clarification on 

what documentation a collector, 

laboratory, MRO or other person 

administering the drug testing process 

must maintain when the DOT Agency 

was not identified on the CCF. 

Another commentor, a large third 

party administrator, wanted to bring a 

discrepancy to our attention. 

Specifically, the commentor noticed a 

discrepancy between the title of this 

section in the IFR ‘‘What procedural 

problems do not result in the 

cancellation of a test and do not require 

corrective action?’’ and the title of this 

section in the 2001 final rule [66 FR 

41954] ‘‘What procedural problems do 

not result in the cancellation of a test 

and do not require correction?’’ 

Regarding the comment asking for 

clarification on documenting the 

omission of the DOT Agency in Step 1– 

D, we believe the plain language of the 

rule text is self explanatory. 

Nevertheless, we will point out that 

laboratories and MROs should 

document this omission as they have 

been documenting similar omissions 

(the transposition of an employee’s 

social security number or employer ID 

number) in the past. As we stated in the 

IFR, ‘‘* * *the laboratory and MRO 

should note that the testing authority 

box was not checked and continue with 

processing, testing, verifying, and 

reporting the specimen result, as 

appropriate’’. Furthermore, there is no 

requirement for the collector to provide 

a ‘memorandum for record’ to anyone 

after the fact to indicate the DOT 

Agency. The regulation requires the 

employer to provide this information to 

the collector and the information is to 

be recorded on the CCF. As a reminder 

to MROs and employers, it is important 

for you to know the regulating DOT 

Agency since there may be DOT Agency 

specific requirements you must fulfill 

(e.g., reporting medical qualifications or 

non-negative results to a DOT Agency). 

Not complying with a DOT Agency’s 

regulatory requirement because the DOT 

Agency want not indicated on the CCF 

does not mitigate your regulatory 

responsibilities. 

The Department would also like to 

remind employers, C/TPAs and 

collectors that although omitting the 

DOT Agency on the CCF would not 

cancel the test or require corrective 

action, this type of error may subject 

them to enforcement action under DOT 

Agency regulations or action under the 

Public Interest Exclusion if it becomes 

a recurring issue. 

Regarding the comment about the 

typographical discrepancy, the 

commentor is correct. However, we will 

leave the title of this section as printed 

in the IFR, because we believe it reads 

better and reflects the intent expressed 

in the 2001 preamble. [66 FR 41948] 

Section 40.355 What limitations apply 

to the activities of service agents? 

In paragraph (l) of this section we 

made a nomenclature change from 

‘‘laboratory copy’’ to ‘‘Copy 1’’. One 

commentor asked for guidance on 

whether transmitting only Copy 1 to the 

laboratory is still applicable since 

collectors are being instructed by the 

laboratory to fax the MRO copy to a fax 

server at the lab. 

In this section, the Department only 

changed the nomenclature from 

‘‘laboratory copy’’ to ‘‘Copy 1’’. The 

requirement for collectors to send Copy 

1 to the laboratory did not change. 

Regulatory Analyses and Notices 

The statutory authority for this rule 

derives from the Omnibus 

Transportation Employee Testing Act of 

1991 (49 U.S.C. 102, 301, 322, 5331, 

20140, 31306, and 54101 et seq.) and the 

Department of Transportation Act (49 

U.S.C. 322). 

This final rule is not significant for 

purposes of Executive Order 12866 or 

the DOT’s regulatory policies and 

procedures. The rule finalizes the 

authorization and procedures for using 

the new CCF for DOT-required drug 

tests and makes a technical amendment 

to correct an inadvertent oversight in a 

previous rulemaking. This rule does not 

increase costs on regulated parties 

because it authorizes regulated 

employers to continue using the old 

CCF for an additional fourteen months, 

until November 30, 2011. After this 

date, the revised CCF must be used. 

This allows employers to use their 

current supply of old CCFs rather than 

discarding them. The rule does not 

impose new burdens on any parties. 

While small entities are among those 

who may use the revised CCF, the 

Department certifies, under the 

Regulatory Flexibility Act, that this rule 

does not have a significant economic 

impact on a substantial number of small 

entities. 

The Department finds good cause to 

make this rule final immediately upon 

publication. The basis of this 

determination is that, under the present 

interim final rule, drug tests recorded on 

the old version of the CCF would have 

to be cancelled beginning October 1, 

2011. Laboratories and other program 

participants commented that because of 

the large numbers of old forms still 

being used, this date would result in 

large numbers of cancellations of 

otherwise valid tests. By making this 

rule change effective before October 1, 

the Department will prevent this 

unfortunate result and allow program 

participants to further exhaust stocks of 

the old version of the form for another 

four months. This will make program 

administration considerably smoother. 

List of Subjects in 49 CFR Part 40 

Administrative practice and 

procedures, Alcohol abuse, Alcohol 

testing, Drug abuse, Drug testing, 

Laboratories, Reporting and 

recordkeeping requirements, Safety, 

Transportation. 

Issued September 22, 2011, at Washington 

DC. 

Ray LaHood, 

Secretary of Transportation. 

Accordingly, the Interim Final Rule 

amending 49 CFR part 40 which was 

published at 75 CFR 59105 on 

September 27, 2010, is adopted as final 

with the following changes: 

PART 40—PROCEDURES FOR 

TRANSPORTATION WORKPLACE 

DRUG AND ALCOHOL TESTING 

PROGRAMS 

■ 1. The authority citation for 49 CFR 

part 40 continues to read as follows: 

Authority: 49 U.S.C. 102, 301, 322, 5331, 

20140, 31306, and 54101 et seq. 

■ 2. In § 40.3 revise the definition of 

‘‘Continuing education’’ to read as 

follows: 

§ 40.3 What do the terms used in this part 

mean? 

* * * * * 

Continuing education. Training for 

substance abuse professionals (SAPs) 

who have completed qualification 

training and are performing SAP 

functions, designed to keep SAPs 

current on changes and developments in 

the DOT drug and alcohol testing 

program. 

* * * * * 

■ 3. In § 40.45, revise paragraph (b) to 

read as follows: 

§ 40.45 What form is used to document a 

DOT urine collection? 

* * * * * 

(b) You must not use a non-Federal 

form or an expired CCF to conduct a 

DOT urine collection. As a laboratory, 

C/TPA or other party that provides CCFs 

to employers, collection sites, or other 

customers, you must not provide copies 

of an expired CCF to these participants. 

You must also affirmatively notify these 

participants that they must not use an 

expired CCF (e.g., that after November 

30, 2011, they must not use an expired 

CCF for DOT urine collections). 

* * * * * 


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■ 4. In § 40.163: 

■ a. Paragraph (c)(8) is amended by 

removing the semi-colon at the end and 

adding ‘‘; and’’ in its place. 

■ b. Paragraph (c)(9) is amended by 

removing ‘‘; and’’ and adding a period 

in its place. 

■ c. Remove paragraph (c)(10). 

■ 5. In § 40.203, paragraph (d)(3) is 

revised, to read as follows: 

§ 40.203 What problems cause a drug test 

to be cancelled unless they are corrected? 

* * * * * 

(d) * * * 

(3) The collector uses a non-Federal 

form or an expired CCF for the test. This 

flaw may be corrected through the 

procedure set forth in § 40.205(b)(2), 

provided that the collection testing 

process has been conducted in 

accordance with the procedures of this 

part in an HHS-certified laboratory. 

During the period of October 1, 2010– 

November 30, 2011, you are not 

required to cancel a test because of the 

use of an old CCF. Beginning December 

1, 2011, if the problem is not corrected, 

you must cancel the test. 

* * * * * 

[FR Doc. 2011–24818 Filed 9–26–11; 8:45 am] 

BILLING CODE 4910–9X–P 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

49 CFR Part 593 

[Docket No. NHTSA–2011–0127] 

List of Nonconforming Vehicles 

Decided To Be Eligible for Importation 

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), DOT. 

ACTION: Final rule. 

SUMMARY: This document revises the list 

of vehicles not originally manufactured 

to conform to the Federal Motor Vehicle 

Safety Standards (FMVSS) that NHTSA 

has decided to be eligible for 

importation. This list is published in an 

appendix to the agency’s regulations 

that prescribe procedures for import 

eligibility decisions. The list has been 

revised to add all vehicles that NHTSA 

has decided to be eligible for 

importation since October 1, 2010, and 

to remove all previously listed vehicles 

that are now more than 25 years old and 

need no longer comply with all 

applicable FMVSS to be lawfully 

imported. NHTSA is required by statute 

to publish this list annually in the 

Federal Register. 

DATES: The revised list of import eligible 

vehicles is effective on September 27, 

2011. 

FOR FURTHER INFORMATION CONTACT: 

George Stevens, Office of Vehicle Safety 

Compliance, NHTSA, (202) 366–5308. 

SUPPLEMENTARY INFORMATION: Under 49 

U.S.C. 30141(a)(1)(A), a motor vehicle 

that was not originally manufactured to 

conform to all applicable FMVSS shall 

be refused admission into the United 

States unless NHTSA has decided that 

the motor vehicle is substantially 

similar to a motor vehicle originally 

manufactured for importation into and 

sale in the United States, certified under 

49 U.S.C. 30115, and of the same model 

year as the model of the motor vehicle 

to be compared, and is capable of being 

readily altered to conform to all 

applicable FMVSS. Where there is no 

substantially similar U.S.-certified 

motor vehicle, 49 U.S.C. 30141(a)(1)(B) 

permits a nonconforming motor vehicle 

to be admitted into the United States if 

its safety features comply with, or are 

capable of being altered to comply with, 

all applicable FMVSS based on 

destructive test data or such other 

evidence as the Secretary of 

Transportation decides to be adequate. 

Under 49 U.S.C. 30141(a)(1), import 

eligibility decisions may be made ‘‘on 

the initiative of the Secretary of 

Transportation or on petition of a 

manufacturer or importer registered 

under [49 U.S.C. 30141(c)].’’ The 

Secretary’s authority to make these 

decisions has been delegated to NHTSA. 

The agency publishes notices of 

eligibility decisions as they are made. 

Under 49 U.S.C. 30141(b)(2), a list of 

all vehicles for which import eligibility 

decisions have been made must be 

published annually in the Federal 

Register. On October 1, 1996, NHTSA 

added the list as an appendix to 49 CFR 

part 593, the regulations that establish 

procedures for import eligibility 

decisions (61 FR 51242). As described 

in the notice, NHTSA took that action 

to ensure that the list is more widely 

disseminated to government personnel 

who oversee vehicle imports and to 

interested members of the public. See 61 

FR 51242–43. In the notice, NHTSA 

expressed its intention to annually 

revise the list as published in the 

appendix to include any additional 

vehicles decided by the agency to be 

eligible for importation since the list 

was last published. See 61 FR 51243. 

The agency stated that issuance of the 

document announcing these revisions 

will fulfill the annual publication 

requirements of 49 U.S.C. 30141(b)(2). 

Ibid. 

Regulatory Analyses and Notices 

A. Executive Order 12866, Regulatory 

Planning and Review 

Executive Order 12866, ‘‘Regulatory 

Planning and Review’’ (58 FR 51735, 

October 4, 1993), provides for making 

determinations about whether a 

regulatory action is ‘‘significant’’ and 

therefore subject to Office of 

Management and Budget (OMB) review 

and to the requirements of the Executive 

Order. The Executive Order defines a 

‘‘significant regulatory action’’ as one 

that is likely to result in a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affects in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or Tribal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. This 

rule will not have any of these effects 

and was not reviewed under Executive 

Order 12866. It is not significant within 

the meaning of the DOT Regulatory 

Policies and Procedures. The effect of 

this rule is not to impose new 

requirements. Instead it provides a 

summary compilation of decisions on 

import eligibility that have already been 

made and does not involve new 

decisions. This rule will not impose any 

additional burden on any person. 

Accordingly, the agency believes that 

the preparation of a regulatory 

evaluation is not warranted for this rule. 

B. Environmental Impacts 

We have not conducted an evaluation 

of the impacts of this rule under the 

National Environmental Policy Act. 

This rule does not impose any change 

that would result in any impacts to the 

quality of the human environment. 

Accordingly, no environmental 

assessment is required. 

C. Regulatory Flexibility Act 

Pursuant to the Regulatory Flexibility 

Act, we have considered the impacts of 

this rule on small entities (5 U.S.C. Sec. 

601 et seq.). I certify that this rule will 

not have a significant economic impact 

upon a substantial number of small 

entities within the context of the 

Regulatory Flexibility Act. The 


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