[Federal Register: June 11, 1998 (Volume 63, Number 112)]
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 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
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.
An electronic copy of this document may be downloaded using a modem
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Electronic Bulletin Board Service at (202) 512-1661. Internet users may
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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
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 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
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 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:
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 will 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
Is This Waiver of the Canadian Electrical Utilities in the Public
Interest and Does it not Diminish the Safe Operation of Commercial
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
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
For the reasons in the FFA above, the FHWA certifies this action
does not have a significant economic impact on a substantial number of
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
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
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
top of this document.
Since the FHWA is granting 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.
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 does not have any effect on the quality of
Authority: 49 U.S.C. 31301 et seq.; and 49 CFR 1.48.
Issued on: June 5, 1998.
Kenneth R. Wykle,
Federal Highway Administrator.
[FR Doc. 98-15609 Filed 6-10-98; 8:45 am]
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