Waiver for Canadian Electric Utility Motor Carriers From Alcohol and Controlled Substances Testing

Federal RegisterJun 11, 1998

Ask Donna

What actually matters in this document.

Text

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-97-3202]

Waiver for Canadian Electric Utility Motor Carriers From Alcohol

and Controlled Substances Testing

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of final determination.

-----------------------------------------------------------------------

SUMMARY: The FHWA is waiving certain Canadian electric utility motor

carriers and drivers from the alcohol and controlled substances testing

requirements in connection with certain limited emergency operations.

The FHWA received a petition from Hydro Quebec and Eastern Utilities

Associates to waive these carriers. The FHWA received no comments to

the proposed waiver. The FHWA will waive those Canadian electric

utility motor carriers and drivers who enter the United States at the

emergency request of a member New England Mutual Assistance Roster

utility to quickly restore electric utility service for the New England

electric utilities and their customers. The FHWA is taking this action

in accordance with the Commercial Motor Vehicle Safety Act of 1986.

This waiver for Canadian electric utility motor carriers extends only

to the alcohol and controlled substances testing requirements for

drivers required to be licensed under the commercial driver's license

(CDL) requirements.

DATES: This final determination is effective on July 13, 1998.

FOR FURTHER INFORMATION CONTACT: Mr. David Miller, Office of Motor

Carrier Research and Standards, (HCS-10), (202) 366-4009; Mr. Michael

Falk, Office of the Chief Counsel, (HCC-20), (202) 366-1384; Federal

Highway Administration, 400 Seventh Street, SW., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Electronic Access

An electronic copy of this document may be downloaded using a modem

and suitable communications software from the Federal Register

Electronic Bulletin Board Service at (202) 512-1661. Internet users may

reach the Federal Register's home page at URL: http://www.nara.gov/

nara/fedreg and at the Government Printing Office's databases at URL:

http://www.access.gpo.gov/su__docs.

Under What Authority Does the FHWA Have Responsibility To Act?

The Commercial Motor Vehicle Safety Act of 1986 (CMVSA) (Pub. L.

99-570, Title XII, October 27, 1986, 100 Stat. 3207-170), as amended,

requires the FHWA to provide notice and an opportunity for comment

before the FHWA waives a regulation as it applies to individuals or

commercial motor vehicles. The specific section of the law, now

codified at 49 U.S.C. 31315, provides the following:

After notice and an opportunity for comment, the Secretary of

Transportation (Secretary) may waive any part of this chapter or a

regulation prescribed under this chapter as it applies to a class of

individuals or commercial motor vehicles if the Secretary decides

the waiver is not contrary to the public interest and does not

diminish the safe operation of commercial motor vehicles. A waiver

under this section shall be published in the Federal Register with

reasons for the waiver. (Pub. L. 103-272, Sec. 1(e), July 5, 1994,

108 Stat. 1029).

This waiver authority has been delegated to the Federal Highway

Administrator [49 CFR 1.48(v) (1997)].

On March 12, 1998 (63 FR 12144), the FHWA published a notice of

petition for waiver and requested comments. The FHWA received no

comments to the docket. The FHWA, therefore, will grant the petition

and waive the alcohol and controlled substances testing requirements as

proposed in the March 12, 1998, notice.

Who May Use This Waiver?

The Canadian utilities belonging to the New England Mutual

Assistance Roster may use this waiver. The following four utilities and

any other Canadian electric utility motor carriers in the provinces of

Ontario, New Brunswick, Nova Scotia, and Quebec responding to the six

New England States will also be eligible to use this waiver from

compliance.

1. Hydro-Quebec 75 Boulevard Rene-Levesque ouest, Montreal, Quebec H2Z

1A4

2. Ontario Hydro, 700 University Avenue, Toronto, Ontario M5G 1X6

3. New Brunswick Power Corporation, 515 King Street, P.O. Box 2000,

Fredericton, New Brunswick E3B 4X1

4. Novia Scotia Power Incorporated, P.O. Box 910, Halifax, Nova Scotia

B3J 2W5.

The FHWA limits this waiver to Canadian electric utility motor

carriers responding to any New England Mutual Assistance Roster member

utility's request for emergency assistance.

What Conditions Apply to This Waiver?

The FHWA requires the following five conditions, modified from the

New England Mutual Assistance Roster principles, to serve as the basis

for this waiver governing emergency assistance between the Canadian

utilities and the New England utilities in the United States:

1. The emergency assistance period begins when the Responding

Canadian Electric Utility Motor Carrier's (the Responding Carrier)

drivers or equipment cross the United States-Canada border transporting

equipment and supplies to the Requesting New England Mutual Assistance

Roster Motor Carrier (the Requesting Carrier). The emergency assistance

period terminates when the Responding Carrier completes the

transportation of such drivers or equipment and crosses back into

Canada across the Canada-United States border.

2. The drivers of the Responding Carrier must at all times during

the emergency assistance period in the United States continue to be

drivers of the Responding Carrier and must not be deemed drivers of the

Requesting Carrier for any purpose.

3. The Responding Carrier must make available at least one

supervisor in addition to the crew foremen. All instructions for work

to be done by the Responding Carrier's crews must be given by the

Requesting Carrier to the Responding Carrier's supervisor(s); or, when

the Responding Carrier's crews are to work in widely separated areas,

to such of the Responding Carrier's foremen as may be designated for

the purpose by the Responding Carrier's supervisor(s).

4. All time sheets and work records pertaining to the Responding

Carrier's drivers furnishing emergency assistance must be kept by the

Responding Carrier.

5. The Requesting Carrier must indicate to the Responding Carrier

the type and size of trucks and other equipment desired as well as the

number of job functions of drivers requested, but the extent to which

the Responding Carrier makes available such equipment and drivers must

be at the Responding Carrier's sole discretion.

[[Page 32039]]

To Whom May the Canadian Utilities Provide Emergency Assistance?

The FHWA limits this waiver to emergency assistance provided by the

Canadian electric utility motor carrier members in the four named

Canadian provinces to any member of the New England Mutual Assistance

Roster in the New England region of the United States. The following

six States make up the New England region of the United States:

1. Connecticut

2. Maine

3. Massachusetts

4. New Hampshire

5. Rhode Island

6. Vermont

The following 19 electric utilities presently make up the United

States members of the New England Mutual Assistance Roster. In the

future, any new members in the above named six States will also be

eligible to receive emergency assistance from the waived Canadian

electric utilities.

1. Bangor Hydro-Electric Company, 33 State Street, P.O. Box 932,

Bangor, Maine 04401

2. Boston Edison Company, 800 Boylston Street, Boston, Massachusetts

02199

3. Burlington Electric Department, 585 Pine Street, Burlington, Vermont

05401

4. Central Maine Power, 83 Edison Drive, Augusta, Maine 04336

5. Central Vermont Power Service Corporation, 77 Grove Street, Rutland,

Vermont 05701

6. Citizens Utilities Company, Box 604, Newport, Vermont

7. Commonwealth Electric Company, 2421 Cranberry Highway, Wareham,

Massachusetts 02571

8. Concord Electric Company, One McGuire Street, Concord, New Hampshire

03301

9. Eastern Utilities Associates, P.O. Box 2333, Boston, Massachusetts

02107.

Includes the following five electric utility divisions.

a. Blackstone Valley Electric

b. Eastern Edison

c. EUA Service Corporation

d. Montaup Electric

e. Newport Electric

10. Exeter & Hampton Electric, 114 Drinkwater Road, Kensington, New

Hampshire 03874

11. Fitchburg Gas and Electric Company, 285 John Fitch Highway, P.O.

Box 2070, Fitchburg, Massachusetts 01420

12. Green Mountain Power Corporation, 25 Green Mountain Drive, P.O. Box

850, South Burlington, Vermont 05402-0580

13. New England Electric System, 25 Research Drive, Westborough,

Massachusetts 01582

14. Northeast Utilities, P.O. Box 270, Hartford, Connecticut 06141-0270

15. Public Service of New Hampshire, 1000 Elm Street, P.O. Box 330,

Manchester, New Hampshire 03105

16. Taunton Municipal Lighting Plant, 55 Weir Street, Taunton,

Massachusetts 02780

17. The United Illuminating Company, 157 Church Street, New Haven,

Connecticut 06506

18. Vermont Electric Power Company, Inc., RR 1, Box 4077, Rutland,

Vermont 05701

19. Vermont Marble--Power Division, 61 Main Street, Proctor, Vermont

05765.

Is This Waiver of the Canadian Electrical Utilities in the Public

Interest and Does it not Diminish the Safe Operation of Commercial

Motor Vehicles?

The FHWA has determined this waiver meets the requirements of 49

U.S.C. 31315 and believes it is in the public interest to provide a

limited waiver to the Canadian electric utility motor carriers. Unlike

a Canadian for-hire or private motor carrier that regularly delivers or

picks up products, or a provincial or Canadian Federal government

entity regularly traversing a State to service provincial citizen

interests, the Canadian utilities, on rare occasions, enter the United

States for limited periods of time for the sole purpose of restoring

electrical service to United States citizens. The FHWA believes such

limited and infrequent operations in the United States do not diminish

the safe operations of commercial motor vehicles and is in the public

interest, especially in the affected localities.

The FHWA believes, through mutual cooperation with Canadian

authorities, the Canadian Federal and provincial governments have

sufficient regulations in place for Canadian electric utility motor

carriers to limit drivers' use of alcohol and controlled substances

while operating commercial motor vehicles wholly within Canada. See

Standard 6, Items 12.1 through 12.6, 13.1, and 13.2 of the National

Safety Code for Motor Carriers, Canada, December 1994. Read literally,

the FHWA's current regulations require these Canadian electrical

utility motor carriers to set up programs to conduct testing for

drivers who may never come across the United States-Canadian border or

for drivers that cross the border on a very limited emergency basis.

The FHWA believes that the alcohol and controlled substances testing

rules, by preventing Canadian electric utility motor carriers and their

Canadian drivers from responding quickly and effectively to requests

for electrical emergency relief within the United States, may impede

rather than promote safety. The safe operation of commercial motor

vehicles may well depend upon rapid emergency response, e.g., to

restore electricity to traffic signals. The safety of the public also

depends upon rapid emergency response, e.g., to restore electricity as

a source of heat and light to hospitals, the elderly, and homes in

general. The regulatory burdens the testing requirements entail are not

justifiable when their effect, during limited periods when electric

power failures can most effectively be contained or mitigated, is to

increase the risks to public health and welfare.

The FHWA believes this waiver will not impair the safety of the

Canadian electric utilities' motor vehicle operations during

emergencies. Other applicable provisions of the Federal Motor Carrier

Regulations (49 CFR parts 300 through 399) remain in effect, unless an

authority having the power to declare an emergency, as set forth in 49

CFR 390.23, does so. Commercial driver's license requirements in 49 CFR

part 383 (and those under the Canadian National Safety Code) are not

waived even if 49 CFR 390.23 was used to grant specific relief.

Based upon no comments to the docket for the proposed waiver, the

FHWA finds good cause to assume the public believes the waiver is in

the public interest and will not diminish the safe operation of

commercial motor vehicles.

Analyses and Notices

The FHWA has determined that this action is not a significant

action within the meaning of the Department of Transportation's

policies and procedures.

In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,

5 U.S.C. 601-612), the FHWA has evaluated the effects of this waiver on

small entities with twenty or fewer truck tractors or straight trucks.

Final Flexibility Analysis (FFA)

This action provides a limited waiver to certain Canadian electric

utility motor carriers and their drivers. The FHWA believes there are a

maximum of four affected small entities at this time. These are the

Canadian electric utilities named above. Additional Canadian electric

utilities will be eligible for this waiver, if the electric utilities

are domiciled and operate primarily (i.e., 51

[[Page 32040]]

percent or more) in one of the four Canadian provinces of Ontario,

Quebec, New Brunswick, or Nova Scotia.

The United States electric utilities named must, without this

waiver, limit the responders available to restore highway safety, e.g.,

traffic signals, and restore electric power to their customers. Failure

to grant the waiver will delay the efficient and quick response to

restore electric power to prevent highway accidents and incidents, and

to save lives from cold weather.

The FHWA believes no other Federal rules exist for alcohol and

controlled substances testing of Canadian electric utility motor

carriers responding to New England Mutual Assistance roster members.

The FHWA is aware of Nuclear Regulatory Commission (NRC) and Department

of Energy (DOE) testing requirements for alcohol and controlled

substances, but believes these are limited to nuclear power plants and

DOE installations in the United States. The FHWA believes the four

named Canadian electric utility motor carriers are not required by the

NRC or DOE to require alcohol and controlled substances testing to

restore electric power to United States customers. The FHWA requested

the New England Mutual Assistance Roster members to provide information

on whether the NRC or the DOE have regulations requiring such testing.

The FHWA received no comments from the roster members or anyone

concerning this issue.

Based upon this FFA evaluation, the FHWA believes any impact upon

these small entities is highly unlikely. Furthermore, the FHWA notes

the Omnibus Act mandates alcohol and controlled substances testing and

the CMVSA mandates the waiver authority irrespective of the size of the

entities.

For the reasons in the FFA above, the FHWA certifies this action

does not have a significant economic impact on a substantial number of

small entities.

This waiver has been analyzed in accordance with the principles and

criteria contained in the Unfunded Mandates Reform Act of 1995 (the

Unfunded Mandates Act) (Pub. L. 104-4, 109 Stat. 48). The FHWA has

determined this action does not have sufficient unfunded mandate

implications to warrant the preparation of an unfunded mandate

assessment.

The amendments made by this waiver do not have a substantial direct

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

between the national government and the States because these changes do

little to limit the policy making discretion of the States.

The waiver is not intended to preempt any State law or State

regulation. Moreover, the changes made by this waiver impose no

additional cost or burden upon any State. Nor does the waiver have a

significant effect upon the ability of the States to discharge

traditional State governmental functions.

For purposes of section 202 of the Unfunded Mandates Act, the

waiver of alcohol and controlled substances testing requirements does

not impose a burden greater than $100 million. The FHWA, therefore, is

not required to prepare a separate unfunded mandate assessment for this

waiver.

Under the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et

seq., the FHWA estimates this waiver has an annual burden savings of

about $21,000. The information collection requirements associated with

compliance by Canadian motor carriers and drivers with part 382 was

included in the information collection budget approval request approved

on September 22, 1997, by the Office of Management and Budget (OMB)

under the PRA and has been assigned OMB control number 2125-0543,

approved through September 30, 2000.

The FHWA estimates four Canadian electric utility motor carriers

send no more than 100 drivers to the United States for an emergency

relief effort. The FHWA estimates these four Canadian electric utility

motor carriers have a few thousand drivers each since they are

monopolies in the areas they serve, but only send a couple dozen

drivers to an emergency in the United States.

The FHWA has calculated the information collection burden on these

carriers in complying with 49 CFR part 382 based upon figures submitted

and approved by the OMB in 1997. See Docket No. FHWA-1997-2313-7. The

four motor carriers share an estimated information collection start-up

cost of $US 10,000 (excluding laboratory set-up costs) and an estimated

recurring annual cost of $US 21,000 and 240 hours of time. The FHWA

excluded laboratory start-up information collection costs because the

approximately 70 laboratories across the United States and Canada able

to perform the analysis of urine specimens have been in operation for

at least one year and have incurred the start-up costs in prior years.

The Canadian motor carriers do not incur the laboratory's start-up

costs. The FHWA has calculated into the figure, though, the information

collection cost of setting up contracts with the laboratories to

conduct the testing.

The FHWA has included revised spreadsheets for these calculations

in the docket for review. Refer to the docket number appearing at the