[Federal Register: March 12, 1998 (Volume 63, Number 48)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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.
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)
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.
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
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:
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,
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
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
1. Hydro-Quebec 75 Boulevard Rene-Levesque ouest, Montreal, Quebec H2Z
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
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
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
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
4. New Hampshire
5. Rhode Island
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
1. Bangor Hydro-Electric Company, 33 State Street, P.O. Box 932,
Bangor, Maine 04401
2. Boston Edison Company, 800 Boylston Street, Boston, Massachusetts
3. Burlington Electric Department, 585 Pine Street, Burlington, Vermont
4. Central Maine Power, 83 Edison Drive, Augusta, Maine 04336
5. Central Vermont Power Service Corporation, 77 Grove Street, Rutland,
6. Citizens Utilities Company, Box 604, Newport, Vermont
7. Commonwealth Electric Company, 2421 Cranberry Highway, Wareham,
8. Concord Electric Company, One McGuire Street, Concord, New Hampshire
9. Eastern Utilities Associates, P.O. Box 2333, Boston, Massachusetts
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
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,
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,
17. The United Illuminating Company, 157 Church Street, New Haven,
18. Vermont Electric Power Company, Inc., RR 1, Box 4077, Rutland,
19. Vermont Marble--Power Division, 61 Main Street, Proctor, Vermont
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
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
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
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
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
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
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
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
top of this document.
If the FHWA grants this waiver, the FHWA will submit a request to
the OMB, on a Form OMB-83C, to reduce the information collection burden
by these amounts, or revised amounts based upon comments to this
The FHWA 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 would not have any effect on the quality of
4Authority: 49 U.S.C. 31301 et seq.; and 49 CFR 1.48.
Issued on: March 4, 1998.
Kenneth R. Wykle,
Administrator, Federal Highway Administration.
[FR Doc. 98-6373 Filed 3-11-98; 8:45 am]
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