[Federal Register Volume 59, Number 31 (Tuesday, February 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2038]


[[Page Unknown]]

[Federal Register: February 15, 1994]


DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Part 382

[FHWA Docket No. MC-93-3]
RIN 2125-AD11

 

Controlled Substances and Alcohol Use and Testing; Foreign-Based 
Motor Carriers and Drivers

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The FHWA is proposing to extend the applicability of rules 
regarding controlled substance and alcohol use and testing to include 
foreign-based drivers of motor carriers operating in the United States. 
The goal of alcohol and controlled substances testing is to detect and 
deter misuse of alcohol and controlled substances by drivers of 
commercial motor vehicles, thereby enhancing U.S. highway safety by 
reducing accidents.

DATES: Written, signed comments must be received on or before April 18, 
1994.

ADDRESSES: Submit written, signed comments to FHWA Docket No. MC-93-3, 
room 4232, Office of the Chief Counsel, 400 Seventh Street, SW., 
Washington, DC 20590. All comments received will be available for 
examination at the above address from 8:30 a.m. to 3:30 p.m., e.t., 
Monday through Friday, except Federal legal holidays.

FOR FURTHER INFORMATION CONTACT: For information regarding program 
issues: Mr. David Miller, Office of Motor Carrier Standards, (202) 366-
2981. For information regarding legal issues: Mr. David Sett, Office of 
the Chief Counsel, (202) 366-0834, Federal Highway Administration, 
Department of Transportation, 400 Seventh Street, SW., Washington, DC 
20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday 
through Friday, except legal Federal holidays.

SUPPLEMENTARY INFORMATION:

I. Background

    On November 21, 1988, the FHWA, along with certain other agencies 
within the Department of Transportation (the Department), adopted 
regulations requiring pre-employment/use, periodic, post-accident, 
reasonable cause and random drug testing of commercial motor vehicle 
drivers. The FHWA rule applies to all covered drivers while operating 
in the United States, regardless of whether they are based in a foreign 
country or the United States. The rule provided, however, that it would 
not apply to any person for whom compliance would violate the domestic 
laws or policies of another country. The rule as originally published 
further provided that in any event it would not be effective until 
January 1, 1990, with respect to any person for whom a foreign 
government contends that application of the rules raises questions of 
compatibility with that country's laws or policies. See 53 FR 47134, 
codified at 49 CFR 391.81 et seq.
    The FHWA has delayed the effective date of drug testing 
requirements for foreign-based employees of foreign-based motor 
carriers on four occasions. See 54 FR 39546, September 27, 1989; 54 FR 
53294, December 27, 1989; 56 FR 18994, April 24, 1991; 57 FR 31277, 
July 14, 1992. The last of these established January 2, 1995, as the 
date for compliance.
    Meanwhile, on October 28, 1991, the Omnibus Transportation Employee 
Testing Act of 1991 (Omnibus Act) was enacted. 49 U.S.C. 2717. The 
Omnibus Act requires the Secretary of Transportation to issue 
regulations requiring drug and alcohol testing of commercial motor 
vehicle drivers. Proposed rules implementing such testing were 
published on December 15, 1992. See 57 FR 59516 for alcohol and 57 FR 
59567 for drugs. These new rules would replace the current drug testing 
rule in 49 CFR part 391 and would institute alcohol testing. The final 
rule implementing the Omnibus Act is being published elsewhere in 
today's Federal Register.
    The Omnibus Act applies to foreign-based motor carriers and drivers 
on its face, with the proviso that the new rules be ``consistent with 
the international obligations of the United States, and * * * into 
consideration any applicable laws and regulations of foreign 
countries.'' 49 U.S.C. 2717(e)(3). Thus, foreign-based drivers are 
required to be covered by the statute, but the Secretary is granted the 
authority to deem the requirement satisfied by the testing laws of 
foreign nations.
    On December 15, 1992, the FHWA published an advance notice of 
proposed rulemaking (ANPRM) to obtain specific information from 
interested parties. Now, based upon comments received, the FHWA seeks 
comments on this NPRM.

II. Comments

    There were fifteen comments to the docket. All specific references 
to a foreign nation were to Canada. Two commenters noted they had no 
knowledge of the drug and alcohol testing laws or practices of Mexico. 
No other nations were mentioned in the comments as being a base from 
which drivers or motor carriers operate in the United States.

A. Applicability

    Of the fifteen comments, nine expressed support for extending 
coverage of testing and misuse regulations to foreign-based drivers. 
Two commenters were opposed to extension. Another commenter, the Owner-
Operator Independent Drivers Association (OOIDA), opposed all testing 
of drivers, except upon a probable cause determination of a law 
enforcement official. The OOIDA stated, however, that if United States-
based drivers are tested, then foreign drivers should be tested to the 
same extent. Finally, the Canadian Embassy suggested that unilateral 
implementation of testing of Canadian drivers should be avoided in 
favor of continuing bilateral negotiations aimed at mutual recognition 
of existing United States regulations and Canadian regulations under 
development.
    The most common rationale offered in support of coverage was 
fairness. Several commenters pointed to the competitive advantage 
enjoyed by foreign motor carriers which need not incur the substantial 
cost of testing. Comments in support also focused on the safety benefit 
to be derived from extended testing.
    The commenters opposed to coverage provided a variety of reasons 
for excluding foreign-based drivers. The Canadian Owner-Operator 
Drivers Association (COODA) stated it was discriminatory to require 
testing of Canadian drivers because Canada has no laws authorizing such 
testing. The International Brotherhood of Teamsters argued that 
requiring testing of Canadian drivers was a violation of Canadian 
sovereignty, and unnecessary due to the absence of a demonstrated 
substance abuse problem in the industry. The Canadian Embassy referred 
to principles of comity, as embodied in the bilateral negotiations, and 
the difficulty of enforcing a unilateral prescription. The embassy 
noted that rules requiring pre-employment, reasonable cause, follow-up, 
and post-accident testing of commercial vehicle operators for 
controlled substances and alcohol are currently under development in 
Canada.
    FHWA Response. The FHWA disagrees with the notion that requiring 
foreign-based drivers to be drug and alcohol tested as a condition of 
operating in the United States is a violation of the sovereignty of 
Canada, or any other nation. Foreign drivers only need be tested 
insofar as they operate in the United States. In no way is it being 
suggested that transportation occurring solely outside the borders of 
the United States, or that part of a cross border movement taking place 
on foreign soil, be subject to drug testing rules. Moreover, compliance 
with the testing rules may be entirely accomplished within the borders 
of the United States, foreclosing any concerns of conflict with laws of 
other nations which might prohibit, for instance, certain activities 
such as random testing.
    Drug and alcohol testing is merely one of the many Federal 
requirements with which foreign, and domestic, drivers and motor 
carriers are obliged to comply while operating in the United States. 
That another sovereignty does not place such requirements on motor 
carriers and drivers is immaterial. There are, after all, motor carrier 
safety standards in Canada and Mexico which do not exist in this 
country or are inconsistent with United States standards, but 
nevertheless apply to United States carriers operating in those 
countries. In other words, United States national standards might be 
different from those in other countries, but they are applied evenly 
across the board to all carriers and drivers operating in the United 
States. Because of this equality of national treatment, there is no 
discrimination against foreign carriers or drivers. Moreover, as a 
number of commenters stated, it may well be discriminatory against 
domestic carriers not to require testing of foreign operators.
    Though there are no international legal obstacles to application of 
the rules to foreign-based drivers, the FHWA recognizes the efficacy of 
applying the principles of ``comity'' (recognition of another nation's 
laws and judicial decisions) expressed by the Canadian Embassy. As the 
embassy stated, the Department and its Canadian counterpart have been 
discussing this issue and the need for common standards since 
publication of the original drug testing rule. The discussions can 
further be viewed in the context of wider ranging trilateral, 
structured negotiations between Canada, Mexico, and the United States 
aimed at achieving greater harmonization of the national motor carrier 
safety standards of the three nations. These negotiations resulted, for 
example, in a Memoranda of Understanding in which the United States 
agreed to recognize certain commercial driver's licenses issued in 
Mexico and Canada. Though negotiations have produced no similar 
``international obligations'' regarding drug and alcohol testing, it 
would be prudent to structure foreign-based applicability in such a way 
as to be consistent with the negotiations, allow rule development in 
other countries to proceed, and explore opportunities for reciprocal 
agreements.

B. Compliance

    In addition to raising the threshold applicability issue, the ANPRM 
posed a number of questions on the mechanics of compliance. In general, 
the comments identified no serious difficulties in applying the rules 
to foreign-based carriers. Several implementation strategies were 
offered.
    Most commenters believed the rule could and should be administered 
in Canada, rather than requiring compliance activities to be performed 
solely in the United States. For example, the COODA recommended using 
Canadian doctors as Medical Review Officers and arranging for 
certification of Canadian laboratories. Imperial Oil Limited noted that 
two Canadian laboratories are certified by the U.S. Department of 
Health and Human Services and that a similar Canadian system of 
certification could be developed. While not disagreeing with allowing 
such activities to be performed in foreign nations, National MRO, Inc. 
stated that it was possible that all testing services, including 
collection, laboratory analysis, medical review, and substance abuse 
counseling could be done in the United States, and estimated an 
increase in cost of up to 10 percent for additional communications 
services.
    The American Trucking Associations, Inc. suggested that foreign-
based drivers be required to join and participate in a United States-
based consortium within 30 days of entry into the United States, and 
that drivers be subject to review of participation at the border upon 
subsequent entry. Pinnacle Transport Services, Inc. suggested use of a 
compliance certification card which could be presented at the border 
upon entry. National Solid Waste Management Association stated that 
testing could be performed at ports of entry.
    FHWA response. The FHWA agrees that the rule as written can be 
complied with by foreign-based carriers either totally in the United 
States or totally in foreign nations, or by some combination of both. 
The FHWA also believes that the various suggestions regarding 
compliance in Canada, certification of Canadian laboratories, and 
mutual recognition of reciprocal standards may offer benefits in 
efficiency, cost, and comity and should be explored further.

III. Proposal

    The applicability section of the final controlled substances and 
alcohol testing rule is being amended to include coverage of foreign-
based drivers of foreign-based carriers. To accomplish this, 
Sec. 382.103(c)(4), which excludes foreign-based carriers, would be 
deleted. Based on the comments about the efficacy and progress of the 
negotiations aimed at achieving compatibility and reciprocity of 
testing standards, the implementation date will be delayed to provide 
maximum opportunity for the process to be completed successfully. 
However, if the process is not completed successfully, the requirements 
of 49 CFR parts 40 and 382 are proposed to go into effect on January 1, 
1996. Accordingly, a section would be added, Sec. 382.119, which would 
provide that foreign-based carriers will be required to implement the 
rule by January 1, 1996.
    The FHWA requests comments on this proposal to require foreign-
based employees of foreign-domiciled employers to be tested for the use 
of controlled substances and alcohol.

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    The FHWA has determined that this action is a significant 
regulatory action within the meaning of Executive Order 12866 and 
significant within the meaning of Department of Transportation 
regulatory policies and procedures. The FHWA has prepared a regulatory 
evaluation for this proposal and the evaluation indicates that the rule 
will have a small positive impact of $8.5 million discounted over ten 
years. A copy of the regulatory evaluation is included in the docket 
for this NPRM.

Regulatory Flexibility Act

    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 rule on 
small entities. Based on the regulatory evaluation, the FHWA believes 
that the impact on small entities will be minimal. Furthermore, it 
should be noted the Omnibus Act mandates alcohol and controlled 
substances testing irrespective of the size of the entities.
    For these reasons, the FHWA certifies that this action will not 
have a significant economic impact on a substantial number of small 
entities.

Executive Order 12612 (Federalism Assessment)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 12612, and it has been determined 
that the proposed rulemaking has no federalism implications to warrant 
the preparation of a Federalism Assessment. This action would require 
foreign- domiciled employers to test their drivers for the use of 
controlled substances and alcohol. The action does not place any 
requirements on the States to comply with this rule.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.217, Motor 
Carrier Safety. The regulations implementing Executive Order 12372 
regarding intergovernmental consultation on Federal programs and 
activities apply to this program.

Paperwork Reduction Act

    The information collection requirements in part 382 of this rule 
have been submitted to the Office of Management and Budget for approval 
under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq.

National Environmental Policy Act

    The agency 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 
the environment.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN number contained in the 
heading of this document can be used to cross reference this action 
with the Unified Agenda.

List of Subjects in 49 CFR Part 382

    Alcohol testing, Controlled substances testing, Highway safety, 
Highways and roads, Motor carriers, Motor vehicle safety.

    Issued on: January 25, 1994.
Federico Pena,
Secretary of Transportation.
Rodney E. Slater,
Federal Highway Administrator.

    In consideration of the foregoing, the FHWA proposes to amend 49 
CFR, subtitle B, chapter III, part 382 as set forth below:

PART 382--CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING

    1. The authority citation for part 382 continues to read as 
follows:

    Authority: 49 U.S.C. app. 2505; 49 U.S.C. app. 2701 et seq.; 49 
U.S.C. 3102; 49 CFR 1.48.

    2. In Sec. 382.103, paragraph (c)(4) is removed and paragraph 
(c)(3) is revised to read as follows:


Sec. 382.103  Applicability.

* * * * *
    (c) * * *
    (3) Who have been granted a State option waiver from the 
requirements of part 383 of this subchapter.
    3. Part 382, subpart A is amended by adding a new Sec. 382.119 to 
read as follows:


Sec. 382.119  Starting date for controlled substances and alcohol 
testing programs of foreign-domiciled employers.

    All foreign-domiciled employers conducting transportation 
operations, by motor vehicle, in the United States shall have 
implemented controlled substances and alcohol testing programs that 
conform to this part and part 40 of this title by January 1, 1996. 
Voluntary compliance may be effected at an earlier date.

[FR Doc. 94-2038 Filed 2-3-94; 1:00 pm]
BILLING CODE 4910-22-P