[Federal Register Volume 60, Number 1 (Tuesday, January 3, 1995)]
[Rules and Regulations]
[Pages 54-56]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-32333]



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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Part 391

RIN 2125-AC50


Controlled Substances Testing; Removal of Foreign Implementation 
Date

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule; removal of compliance date.

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SUMMARY: The Federal Highway Administration announces the removal of 
the compliance date from regulations governing drug testing of foreign-
based employees of foreign-domiciled motor carriers. On February 15, 
1994, the FHWA published a notice of proposed rulemaking which proposed 
to begin controlled substances and alcohol testing of foreign-based 
employees of foreign-domiciled employers under 49 CFR part 382 on 
January 1, 1996. But 49 CFR part 391 requires foreign-based employees 
of foreign-domiciled employers to implement controlled substances 
testing effective January 2, 1995. The removal of the compliance date 
in part 391 is to allow completion of the part 382 rulemaking process 
initiated in compliance with the Omnibus Transportation Employee 
Testing Act of 1991. Also the delay will allow negotiation with foreign 
governments to continue in an orderly and effective fashion.

EFFECTIVE DATE: This rule is effective December 30, 1994.

FOR FURTHER INFORMATION CONTACT: For information regarding program 
issues: Mr. Ronald Finn, Office of Motor Carrier Standards, (202) 366-
0647, or 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 Federal holidays.

SUPPLEMENTARY INFORMATION: 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 they are 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.
[[Page 55]]

    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 with subpart H of part 391.
    Meanwhile, on October 28, 1991, the Omnibus Transportation Employee 
Testing Act of 1991 (Omnibus Act) was enacted (Pub. L. 102-143, Title 
V). The Omnibus Act requires the Secretary of Transportation to issue 
regulations requiring drug and alcohol testing of commercial motor 
vehicle drivers. Final rules implementing such testing were published 
on February 15, 1994. See 59 FR 7484, 49 CFR part 382. These new rules 
institute alcohol testing and will completely replace the current drug 
testing rule in subpart H of 49 CFR part 391 by January 1, 1996. After 
that time, subpart H of part 391 will no longer be in effect. However, 
because Sec. 391.83(c) provides that foreign-based employees of 
foreign-domiciled carriers shall be subject to the drug testing rules 
in part 391 as of January 2, 1995, foreign motor carriers would be 
required to conduct testing for 1995 alone. The FHWA published a notice 
of proposed rulemaking (NPRM) on February 15, 1994, which proposed to 
require foreign-based motor carriers to conduct both alcohol and 
controlled substances testing under the rules in 49 CFR part 382 rather 
than requiring foreign-based motor carriers to conduct just controlled 
substances testing under the rules in 49 CFR part 391. See 59 FR 7528.
    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 * * * consider 
applicable laws and regulations of foreign countries.'' 49 U.S.C. 
31306(h). Thus, foreign-based drivers are required by the statute to be 
covered, but the Secretary is granted the authority to deem the 
requirement satisfied by the testing laws of foreign nations or through 
international agreements.
    On February 15, 1994, the FHWA published an NPRM soliciting 
comments on methods for conducting testing of foreign drivers. The FHWA 
proposed that the final controlled substances and alcohol testing rule 
under 49 CFR part 382 be amended to cover 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 process 
aimed at achieving compatibility and reciprocity of testing standards, 
the implementation date was chosen to provide the greatest opportunity 
for the negotiation process to be completed successfully. However, if 
the process were not completed successfully, the requirements of 49 CFR 
parts 40 and 382 were proposed to go into effect on January 1, 1996. 
The FHWA continues to analyze comments and negotiate with foreign 
governments to achieve compatible laws and reciprocity of testing 
standards. To permit these discussions to progress in an orderly 
fashion, and to allow additional time to work on compatibility and 
reciprocity with foreign governments, the FHWA is removing the date on 
which foreign-based motor carriers would be subject to the drug testing 
rules at 49 CFR part 391.
    This final rule removes the date by which testing programs must 
commence for persons located outside the territory of the United 
States, including foreign-based employees of American companies (or 
their foreign subsidiaries). This action does not postpone testing for 
any other person, including U.S.-based employees of foreign companies 
and their American subsidiaries.

Rulemaking Analyses and Notices

    The FHWA finds that further notice and opportunity for comment are 
unnecessary under 5 U.S.C. Sec. 553(b)(3)(B) inasmuch as the issue of 
when foreign-based employees of foreign-domiciled carriers should be 
subject to the FHWA's new alcohol and controlled substances testing 
rules at 49 CFR part 382, rather than the current part 391 rules, has 
already been the subject of notice-and-comment rulemaking (RIN 2125-
AD11) in a December 15, 1992, advance notice of proposed rulemaking (57 
FR 59356) and a February 15, 1994, notice of proposed rulemaking (59 FR 
7528). In addition, the FHWA believes that further notice and 
opportunity for comment are not required under the regulatory policies 
and procedures of the Department of Transportation. In light of the 
earlier opportunities to comment on this subject, the FHWA does not 
anticipate that providing an additional comment period would result in 
the receipt of useful information.
    The FHWA also believes that this final rule is exempt from the 30-
day delayed effective date requirement of the Administrative Procedure 
Act under 5 U.S.C. Sec. 553(d)(1) because it ``grants or recognizes an 
exemption or relieves a restriction.'' If 49 CFR Sec. 391.83(c) were 
not amended to remove the compliance date, foreign-based drivers would 
be subject to the drug testing rules of 49 CFR part 391 as of January 
2, 1995. This action provides that foreign-based drivers will continue 
to be excluded from the requirements of 49 CFR part 391, effectively 
granting an exemption to the controlled substances testing requirements 
in 49 CFR part 391 which would otherwise soon apply to these drivers. 
Therefore, the FHWA finds that good cause exists to proceed directly to 
a final rule which is effective upon its date of publication.

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

    The FHWA has determined that this action is neither a significant 
regulatory action under Executive Order 12866 nor significant under the 
Department of Transportation's regulatory policies and procedures. In 
this final rule, the FHWA removes the date on which the drug testing 
rules at 49 CFR part 391 would apply to foreign-based employees of 
foreign-domiciled carriers, thereby continuing to exempt these 
employees from these drug testing rules. It is anticipated that the 
economic impact of this rulemaking will not be substantial because, in 
removing the compliance date for foreign-based employees of foreign 
carriers, the FHWA is not altering existing regulations in such a way 
as to either impose or eliminate any economic burden. These employees 
are not now subject to the drug testing rules at 49 CFR part 391, and 
this action simply maintains their exempt status.

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. This final rule will remove the compliance date by 
which foreign-domiciled motor carriers would have been required to test 
drivers for the use of controlled substances under 49 CFR part 391. In 
removing this compliance date, the FHWA is simply continuing to exempt 
these employees from the agency's controlled substances testing 
requirements. Therefore, a full regulatory evaluation is not required. 
For this reason and under the criteria of the Regulatory Flexibility 
Act, the FHWA hereby certifies that this action will not have a 
significant economic impact on a substantial number of small entities. 
[[Page 56]] 

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 final rule does not have sufficient federalism implications to 
warrant the preparation of a separate Federalism assessment. This 
action removes the requirement that foreign-based motor carriers 
conduct controlled substances testing. It does not place any 
requirements on the States and thus does not limit the policy-making 
discretion of States.

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

    This action does not contain a collection of information 
requirement for purposes of the Paperwork Reduction Act of 1980, 44 
U.S.C. 3501-3520.

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 will 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 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 391

    Controlled substances, Driver qualifications, Drug abuse, Drug 
testing, Highways and roads, Highway safety, Motor carriers, Motor 
vehicle safety, Reporting and recordkeeping requirements, Safety, 
Transportation.

    Issued on: December 29, 1994.
Rodney E. Slater,
Federal Highway Administrator.

    In consideration of the foregoing, the FHWA is amending title 49, 
Code of Federal Regulation, subtitle B, chapter III, part 391 as set 
forth below:

PART 391--QUALIFICATION OF DRIVERS

    1. The authority citation for part 391 continues to read as 
follows:

    Authority: 49 U.S.C. 504, 31136, and 31502; and 49 CFR 1.48.

Subpart H--Controlled Substances Testing

    2. In Sec. 391.83, paragraph (c) is revised to read as follows:


Sec. 391.83  Applicability.

* * * * *
    (c) This subpart is not applicable with respect to any foreign-
based employee of a foreign-domiciled motor carrier.

[FR Doc. 94-32333 Filed 12-30-94; 8:45 am]
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