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

Federal RegisterMar 12, 1998

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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 petition for waiver; request for comments.

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SUMMARY: The FHWA is announcing its intent to waive 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 has received a petition from

Hydro Quebec and Eastern Utilities Associates to waive these carriers.

The FHWA would 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 proposing this action in accordance with

the Commercial Motor Vehicle Safety Act of 1986. This waiver for

Canadian electric utility motor carriers would extend only to the

alcohol and controlled substances testing requirements for drivers

required to be licensed under the commercial driver's license (CDL)

requirements.

DATES: Submit comments on or before April 13, 1998.

ADDRESSES: All signed, written comments must refer to the docket number

appearing at the top of this document. Submit all comments to the

Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh Street, SW.,

Washington, DC 20590-0001. All comments received will be available for

examination at the above address between 10 a.m. and 5 p.m., e.t.,

Monday through Friday, except Federal holidays. Those desiring

notification of receipt of comments must include a self-addressed,

stamped envelope or postcard.

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

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

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

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

SUPPLEMENTARY INFORMATION:

Electronic Access

Internet users may access all comments received by the U.S. DOT

Dockets, Room PL-401, by using the universal resource locator (URL):

http://dms.dot.gov. It is available 24 hours each day, 365 days each

year. Please follow the instructions on-line for more information and

help.

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) (1996)].

On October 28, 1991, the Omnibus Transportation Employee Testing

Act of 1991 (Omnibus Act), Pub. L. 102-143, 105 Stat. 959, was enacted

and codified at 49 U.S.C. 31306. The Omnibus Act amended the CMVSA and

required the Secretary to issue regulations requiring alcohol and

controlled substances testing of CMV drivers who are subject to the CDL

requirements of the CMVSA. The final rule implementing such testing

requirements was published on February 15, 1994. See 59 FR 7302,

codified at 49 CFR part 382. This 1994 rule replaced the controlled

substances testing rule in 49 CFR part 391, and instituted alcohol

testing. With subpart H of part 391 completely superseded by part 382

on January 1, 1996, the most recent compliance dates in part 391 for

foreign-based motor carriers were removed. See 60 FR 54, January 3,

1995.

The Omnibus Act applies only to motor carriers and drivers

operating in the United States, which includes foreign motor carriers

and their drivers. The only express reference to foreign-based

operations is the requirement that regulations established under the

statute be ``consistent with international obligations of the United

States,'' and that the Secretary ``shall consider applicable laws and

regulations of foreign countries.'' 49 U.S.C. 31306(h). Thus, the

statute requires foreign-based drivers to be subject to testing to the

extent such rules are consistent with United States international

obligations, and the Secretary is granted the authority to deem the

requirement satisfied by, and must take into consideration, the laws

and regulations of other nations.

As part of its consideration of foreign laws, the FHWA solicited

information from interested parties regarding the applicability of part

382 to foreign-based drivers. 57 FR 59536 (December 15, 1992) (advance

notice of proposed rulemaking); 59 FR 7528 (February 15, 1994) (notice

of proposed rulemaking). In the notice of proposed rulemaking (NPRM),

the FHWA proposed to apply part 382 to foreign-based operations

beginning on January 1, 1996, while continuing to explore the

possibility of entering into agreements to recognize other nations'

testing programs for purposes of compliance with part 382. On September

22, 1995 (60 FR 49322), based upon comments received and the FHWA's

intent to provide regulatory flexibility for foreign motor carriers,

the agency established July 1, 1996, as the effective date for large

foreign motor carriers and their drivers to comply with these

regulations; and July 1, 1997, as the effective date for small foreign

motor carriers and their drivers to comply with these regulations.

What Has Prompted This Notice?

Hydro Quebec, an electric utility motor carrier based in Quebec,

Canada, and Eastern Utilities Associates, an electric utility motor

carrier based in Boston, Massachusetts have petitioned the FHWA to

waive from compliance with 49 CFR part 382 Canadian member

[[Page 12145]]

electric utility motor carriers responding to a request for assistance

by a United States member of the New England Mutual Assistance Roster.

The New England Mutual Assistance Roster members include both United

States and Canadian electric utility motor carriers. The Canadian

utilities and their drivers, who would never enter the United States

under normal conditions, are not subject to alcohol and controlled

substances testing until entering the United States. There are no

equivalent Canadian testing rules. Hydro Quebec argues it would be in

the public interest and it would not diminish the safe operation of

commercial motor vehicles in the United States to allow it to be waived

from the alcohol and controlled substances testing rules for the sole

purpose of responding to a New England Mutual Assistance Roster

member's request for assistance in an emergency.

The New England Mutual Assistance Roster members stress electric

utility service restoration requires clear thinking and unhampered

ability. The members also stress it is imperative that the mutual

emergency assistance work force, including drivers, be free of drug use

and alcohol abuse.

The Canadian utilities belonging to the New England Mutual

Assistance Roster at this time are the following four utilities (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 would also be eligible to use this proposed 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 would limit participation in this waiver to Canadian

electric utility motor carriers responding to any New England Mutual

Assistance Roster member utility's request for emergency assistance.

What Proposed Conditions Apply to This Proposed Waiver?

The FHWA proposes the following five conditions, modified from the

New England Mutual Assistance Roster principles, would serve as the

basis for this proposed 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.

To Whom Would the Canadian Utilities Be Providing Emergency Assistance?

The FHWA would limit this proposed 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 would 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

[[Page 12146]]

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

05765.

What If the Government of Canada Imposes Testing on United States Motor

Carriers Entering Canada?

The FHWA would also expect the four named Canadian electric utility

motor carriers to seek reciprocity with the Government of Canada for

the United States electric utility motor carriers in the New England

Mutual Assistance Roster, if the Government of Canada or the affected

provinces promulgate regulations that do not currently apply to those

carriers under United States laws or regulations. In this way, the

Government of Canada would treat the United States electric utility

motor carriers the same as the United States Government would treat

Canadian electric utility motor carriers responding to the same types

of electric utility emergencies.

Would a Waiver of the Canadian Electrical Utilities Be in the Public

Interest and 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 would be in the public interest to provide

a limited waiver to the Canadian electric utility motor carriers. The

Canadian electric utility motor carriers and their drivers do not

normally operate in or through the United States. 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 would, 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 would 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. Under current

FHWA regulations, these Canadian motor carriers would not be subject to

United States alcohol and controlled substances testing rules, unless

they came into the United States for a few days on rare occasions. Read

literally, the FHWA's current regulations would 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.

This is unreasonable in the FHWA's view. The FHWA does believe,

however, it is reasonable to require testing for those Canadian for-

hire, private, and government motor carriers and drivers who regularly

operate in the United States.

The FHWA believes that the alcohol and controlled substances

testing rules would prevent Canadian electric utility motor carriers

and their Canadian drivers from responding quickly and effectively to

requests for electrical emergency relief within the United States. The

FHWA believes it would be contrary to the public interest to enforce

rules that would delay efforts to protect lives and property.

Conversely, 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 would also depend 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 FHWA

adopted the alcohol and controlled substances testing rules to enhance

safety. 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 does not believe this proposed waiver will 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) would 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) would not be waived even if 49 CFR 390.23 was used to

grant specific relief.

For more than 60 years motor carriers have been prohibited from

permitting drivers to drive while using liquor or narcotic drugs. See 1

M.C.C. 1, at 19 (1936). Based upon data reported to FHWA by motor

carriers, motor carriers generally use drivers who test almost 98

percent free of controlled substances and almost 100 percent free of

alcohol. See 63 FR 2172, January 14, 1998. The FHWA believes that it

should not force the Canadian electrical utility motor carriers to

begin a program the FHWA believes would have little benefit to the

citizens of the United States.

Analyses and Notices

The FHWA has initially determined that this action is not a

significant action within the meaning of the Department of

Transportation's policies and procedures.

The FHWA believes it is necessary to provide a shorter comment

period than normal for this proposal. This action is needed for the

winter season when the FHWA believes the New England Mutual Assistance

members would most need the assistance of the Canadian electric utility

motor carriers covered by this action. The FHWA believes it is

imperative to provide New England citizens the greatest amount of

protection against the loss of life and property by providing relief

should the need arise. The FHWA does not anticipate great interest in,

or a large number of comments on, this proposal. Thus, the FHWA

believes a 30-day comment period is sufficient for this proposed

action.

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

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

waiver on small entities with twenty or less truck tractors or straight

trucks.

Initial Flexibility Analysis (IFA)

This action proposes to provide 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 would be the Canadian electric utilities named above.

Additional Canadian electric utilities would be eligible for this

proposed waiver, if the electric utilities are domiciled and operate

primarily (i.e., 51 percent or more) in one of the four Canadian

provinces of Ontario, Quebec, New Brunswick, or Nova Scotia.

The United States electric utilities named would be required,

without this waiver, to limit the responders available to restore

highway safety, e.g., traffic signals, and restore electric power to

their customers. Failure to grant the waiver may delay the efficient

and quick response to restore electric power to prevent highway

accidents and

[[Page 12147]]

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 Candian electric utility motor carriers would not be required by

the NRC or DOE to require alcohol and controlled substances testing to

restore electric power to United States customers. The FHWA would like

information from New England Mutual Assistance Roster members whether

NRC or DOE have regulations requiring such testing.

Based upon this IFA 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 IFA above, the FHWA initially certifies this

action would not have a significant economic impact on a substantial

number of small entities. The FHWA will conduct a final flexibility

analysis based upon any comments to the docket.

This proposed 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 proposed waiver would 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 proposed here 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 would impose no

additional cost or burden upon any State. Nor would 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 would

not impose a burden greater than $100 million.

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

seq., the FHWA estimates this proposal would have an annual burden

savings of about $21,000. The FHWA, therefore, is not required to

prepare a separate unfunded mandate assessment for this proposed

waiver.

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

would 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 would 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 part 382 based upon figures submitted and

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

motor carriers would 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 would 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 this docket for review. Refer to the docket number appearing at the