By Patrice Kelly, Senior Policy Executive Advisor, NDASA (on detail from the U.S. Department of Transportation)
When you read a regulatory provision that does not make sense to you, you should pause and ask yourself if you are reading it correctly. You also should check to see where the regulation is located because the “Part” it is in usually defines its applicability. For example, the Internal Revenue Service (IRS) defines the word “prescription” but only means for the word to be applied in flexible spending account contexts. Meanwhile, the Drug Enforcement Administration (DEA) defines “prescription” in accordance with, and for purposes of, the Controlled Substances Act – in other words, same term, different contexts and applications. An example in our professional world is when the Federal Motor Carrier Safety Administration (FMCSA) defines the term “Commercial Motor Vehicle” in Parts 350 (Motor Carrier Safety Assistance Program), 382 (drug and alcohol), 390 (General FMCSA safety provision), and 393 (minimum safety standards) – that term means something different depending on the “Part” you are reading.
After you are sure you understand the applicability of the term or regulatory paragraph you are reading, the regulation still may seem unclear because you are trying to apply it to a unique situation. At that point, you should look at the “preamble” for that regulation to see what DOT meant when it proposed the regulation and what the public commenters said that may have caused DOT to craft the final rule a certain way to be more responsive to the concerns of the commenter(s). The preamble is the story of why the regulation reads as it does today. In looking at the “why” in the story of that exact regulation, often you can find out what was considered, what the commenters liked and disliked about the proposal, and the guidance DOT wants readers to know about what the provision means and what it excludes.
Here is how to find the preamble: look up a regulation on the “eCFR” website. More easily for 49 CFR Part 40 (Part 40), use the Office of Drug and Alcohol Policy and Compliance (ODAPC) website to get there. Next, find your provision within Part 40. Let’s look at 49 CFR section 40.41, “May employers use the CCF for non-Federal collections or non-Federal forms for DOT collections?” (www.transportation.gov/odapc/part40/40-41). At the bottom of the section, you will find the dates and citations to the history of changes and their accompanying preambles: “[65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41950, Aug. 9, 2001. Redesignated and amended at 88 FR 27639, June 1, 2023].” Each of these Federal Register Notices can be found on the ODAPC webpage at: www.transportation.gov/odapc/frpubs
The preamble is that part of these Federal Register documents that fall between the introductory material (summary, effective date, person to contact with questions, etc.) and the actual regulatory language at the end of that Federal Register document. Again, it is a “story,” so read it to understand what the DOT intended, how the commenters perceived what was proposed, and why the regulation reads as it does in the final rule. You might find that quirky provision that is confusing to you is the result of DOT’s careful consideration of: the balancing of safety with individual rights; short-term and long-term costs and benefits; fairness; integrity of the process; and/or consideration of small businesses. It could also be the result of a suggestion by a commenter.
You might also realize the provision has an unintended consequence, a gap, or has lost its relevancy. If so, maybe you will want to consider whether you want to recommend reopening an existing provision or adding a new provision to address what you have identified as a problem.
There are a few different ways to address your concern(s), and more than one may be a good idea for you to consider:
1. Contact ODAPC by telephone (202-366-DRUG) or via email: ODAPCWebMail@dot.gov Speak with, or write to, a policy adviser for guidance. ODAPC has likely seen the same questions or concerns before, and the policy advisor can easily address your specific scenario. If you raise a novel question, gap, or other reason to have the regulation changed, the policy advisor you speak with can make note of it for future rulemaking consideration. This is often how ODAPC gets ideas for changing sections of Part 40 to meet the evolving needs of the industry.
2. When a Notice of Proposed Rulemaking (NPRM) is announced, comment about what you want to see changed – if you are sure something needs to be changed (after talking with ODAPC and reading the preambles). Your comment will be considered by DOT and could result in one or more changes. While you may be addressing something that is not directly under the NPRM, if it is a great idea and fits with the theme, it could be adopted into the final rule’s regulatory provisions as “a logical outgrowth.” Such suggestions by the commenters can be a great way to make changes that make sense. In the worst-case scenario, DOT either will respond that the comment is “outside the scope.” There is no harm to that AND it may leave an impression for ODAPC to follow up on with subsequent guidance or with a rulemaking change later. For example, electronic signatures have been “outside the scope” but commenters kept raising the issue for a few years and now there is a whole rulemaking on it!
3. You can ask DOT to make, modify or remove a regulation by petitioning for rulemaking under 49 CFR section 5.3(a)(1): “Any person may petition an OA [Operating Administration, aka the “DOT Agencies”] or OST [the “Office of the Secretary”] component with rulemaking authority to: (1) Issue, amend, or repeal a rule, as defined in 5 U.S.C. 551 [that’s the Administrative Procedures Act (APA)].” The procedures for exactly how to do this are set forth in 49 CFR section 5.3.(b). Make sure you clearly state what you want changed, why and follow the directions. DOT will either grant the petition and include it in a rulemaking or deny it with a written response.
In summary, there is a story behind every DOT regulation. If the regulation does not make sense to you, ask questions, and read the preamble(s). After that, you can include any unresolved issues in your public comments. If you feel strongly that a matter needs to be addressed, you have the option to petition for rulemaking. Your work, your comments, and your thoughts matter! Thank you for all you do for transportation safety. I am honored to work with you as a transportation safety professional!