[Federal Register Volume 60, Number 184 (Friday, September 22, 1995)]
[Rules and Regulations]
[Pages 49322-49326]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-23590]
[[Page 49321]]
_______________________________________________________________________
Part II
Department of Transportation
_______________________________________________________________________
Federal Highway Administration
_______________________________________________________________________
49 CFR Part 382
Controlled Substances and Alcohol Use and Testing; Foreign-Based Motor
Carriers and Drivers; Final Rule
Federal Register / Vol. 60, No. 184 / Friday, September 22, 1995 /
Rules and Regulations
[[Page 49322]]
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: Final rule.
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SUMMARY: The FHWA is extending the applicability of rules on controlled
substances and alcohol use and testing to include foreign-based drivers
of motor carriers operating in the United States. This action is taken
pursuant to the Omnibus Transportation Employee Testing Act of 1991 and
is consistent with the international obligations of the United States.
The rules will apply to all foreign-based drivers and employers, who
are predominantly from Canada and Mexico, to the same extent as those
based in the United States.
EFFECTIVE DATE: This rule is effective October 23, 1995.
FOR FURTHER INFORMATION CONTACT: For information regarding FHWA alcohol
and controlled substances testing requirements regarding 49 CFR part
382: Office of Motor Carrier Research and Standards, (202) 366-1790.
For information regarding alcohol and controlled substances testing
legal issues: Office of the Chief Counsel--Motor Carrier Law Division,
(202) 366-0834. For requests for presentations on implementation of the
alcohol and controlled substance testing requirements in foreign
countries: International Program (HPS-1), (202) 366-5370, Office of
Motor Carrier Planning and Customer Liaison, Federal Highway
Administration, Department of Transportation, 400 Seventh Street, SW.,
Washington, D.C. 20590. Office hours are from 7:45 a.m. to 4:15 p.m.,
e.t., Monday through Friday, except United States Federal holidays.
For information regarding Department of Transportation (DOT)
procedural issues and testing protocols in 49 CFR part 40: Director (S-
1), (202) 366-3784, Office of Drug Enforcement and Program Compliance,
Room 10317, Office of the Secretary of Transportation, U.S. Department
of Transportation, 400 Seventh Street, S.W., Washington, D.C. 20590.
Office hours are from 9:00 a.m. to 5:30 p.m., e.t., Monday through
Friday, except United States 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, periodic, post-accident,
reasonable cause and random controlled substances testing of safety
sensitive employees, including commercial motor vehicle (CMV) drivers.
The FHWA rule applied to certain CMV drivers while operating in the
United States, regardless of whether they were based in a foreign
country or the United States. The rule provided generally, 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 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 subsequently amended its regulation to delay the effective
date of controlled substances testing requirements for foreign-based
drivers 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 primary reason for each
delay was because the DOT thought it would be more effective to address
the problem through bilateral or multilateral agreements and wanted to
continue exploring the possibility of such an agreement. Prior to
implementation of the North American Free Trade Agreement (NAFTA) on
December 17, 1995, the only foreign- based motor carriers operating
throughout the United States in significant numbers will be Canadians,
with Mexicans confined to operating in limited commercial zones.
Meanwhile, on October 28, 1991, the Omnibus Transportation Employee
Testing Act of 1991 (Omnibus Act) was enacted. 49 U.S.C. 31306. The
Omnibus Act requires the Secretary of Transportation to issue
regulations requiring controlled substances and alcohol testing of CMV
drivers who are subject to the commercial driver's licensing (CDL)
requirements of the Commercial Motor Vehicle Safety Act of 1986. 49
U.S.C. Chapter 313. The final rule implementing such testing was
published on February 15, 1994. See 59 FR 7302, codified at 49 CFR part
382. The 1994 rule replaced the current controlled substances testing
rule in 49 CFR part 391, and instituted alcohol testing. With part 391
to be completely superseded by part 382 on January 1, 1996, the most
recent compliance date in part 391 for foreign-based motor carriers was
removed. See 60 FR 54, January 3, 1995.
The Omnibus Act applies to motor carriers and drivers operating in
the United States, which includes foreign employers and drivers. The
only express provision for foreign-based operations is that the new
rule be ``consistent with international obligations of the United
States, and * * * shall 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 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 foreign 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. In today's
document, based upon comments received and the FHWA's intent to provide
regulatory flexibility for foreign employers, the FHWA is adopting July
1, 1996, as the effective date for large foreign employers and drivers
to comply with these regulations and July 1, 1997, as the effective
date for small foreign employers and drivers to comply with these
regulations. The FHWA has reconsidered the period when implementation
of the rule is necessary and believes now that providing a two-tier
implementation phase-in period for this rulemaking is consistent with
the implementation phase-in periods provided to domestic employers in
1994. The FHWA believes that this is necessary to provide consistency
and fairness to foreign employers.
On December 19, 1994, in a letter to United States Secretary of
Transportation Federico Pena, Canadian Transport Minister Douglas Young
indicated that the Canadian government
[[Page 49323]]
would not be introducing legislation on prevention of substance use in
transportation at this time. Minister Young further stated that
Canada's motor carrier industry should be allowed to develop a
voluntary program ``tailored to their particular needs.''
II. Comments
There were twelve comments to the docket for the NPRM of February
15, 1994. Two of the twelve comments did not address the foreign-based
testing issue. All references to a foreign nation in the other comments
were to Canada or Mexico, with specific information provided about
Canada but not about Mexico. No other nations were mentioned in the
comments as a base from which drivers or motor carriers operate in the
United States. The FHWA is aware of rare, limited instances of drivers
from other nations operating in the United States.
Seven relevant comments were received prior to Transport Minister
Young's letter to Secretary Pena, from the American Bus Association
(ABA), the Owner-Operator Independent Drivers Association (OOIDA), the
American Trucking Associations, Inc. (ATA), the Embassy of Canada, the
Canadian Bus Association (CBA), the Ontario Motor Coach Association
(OMCA), and the Canadian Trucking Association (CTA). Three comments
were received from one organization, the Canadian Coalition of Motor
Carriers on Substance Use (CCMCSU), after Transport Minister Young's
letter. The CCMCSU is a coalition of the CBA, the CTA, the Private
Motor Truck Council of Canada, and the COM-CAR Owner-Operators'
Association, and represents about 2,000 Canadian motor carriers. There
are approximately 8,450 Canadian motor carriers listed on the FHWA's
Motor Carrier Management Information System census database that
operate in the United States.
A. Applicability
The ABA and the ATA strongly support applying the alcohol and
controlled substances testing regulations to foreign-based drivers and
motor carriers operating in the United States. The OOIDA stated that
although it has never supported alcohol and controlled substances
testing without cause, because testing is required of United States-
based employers and drivers, ``the Association reluctantly takes the
position that the scope of the controlled substance and alcohol testing
regulations should be expanded to include drivers of foreign-based
motor carriers.''
The comments of the CBA, CTA, and OMCA all supported the Embassy of
Canada's comment favoring continuation of reciprocity discussions and
negotiations in the interest of efficiency, cost, and comity. Once it
became clear that Canada would not have reciprocal standards, at least
for testing requirements, the CCMCSU commented that it was prepared to
begin assisting implementation of the FHWA alcohol and controlled
substances testing regulations in Canada.
FHWA Response: The statutory directive is clear. All drivers
operating in the United States are to be subject to controlled
substances and alcohol testing, regardless of domicile. The safety
concerns which led to the Omnibus Act pertain equally to United States
and foreign-based drivers. Furthermore, it would be unfair and
competitively harmful to United States' drivers and employers to
require them to incur significant costs not borne by foreign-based
operations. This is particularly true in light of provisions in NAFTA
designed to open United States motor carrier markets to operators based
in Mexico, and vice versa, beginning in December 1995.
From their inception in 1988, part 391 controlled substances
testing requirements applied to foreign-based carriers. Though
Canadians continued to operate throughout the United States, foreign
implementation was delayed several times while legal and other issues
were discussed bilaterally with Canada. Foreign application of part 382
has, in effect, been delayed for the same reason. Now that it is clear
that Canada will not establish, and further discussion will not result
in, comprehensive national standards comparable to part 382, there is
no reason to delay further, and, indeed, every reason to advance, this
important safety rule. The imminence of Mexican operations in the
United States reinforces this need.
Applicability of part 382 will therefore be extended to that class
of drivers currently expressly excluded--foreign-based drivers of
foreign-based motor carrier employers while operating in the United
States. The rule as written can be administered wholly in the United
States, though perhaps not most efficiently (see discussion below on
Testing Procedures). Most parts of the rule can also be administered in
Canada or Mexico, though some parts of the rule will have to be
administered in the United States, such as use of U.S. Department of
Health and Human Services (DHHS) certified laboratories, all of which
are in the United States. In any event, unless otherwise provided by
the FHWA at a later date based on recognition of comparable foreign
standards, the rule will apply to foreign-based drivers of foreign-
based employers to exactly the same extent and in exactly the same
manner as to domestic operators.
Nevertheless, the FHWA remains very interested in continuing to
explore bilateral agreements that would have the effect, subject to the
FHWA's rulemaking and waiver authority in this area, of recognizing all
or part of any Canadian program and Mexican standards as comparable to
part 382, ``consistent with the international obligations of the United
States, and * * * [taking] into consideration any applicable laws and
regulations of foreign countries.'' Two examples of comprehensive
reciprocity agreements with Canada and Mexico are the Memoranda of
Understanding that recognize their commercial driver's license (CDL)
systems as equivalent to the United States requirements. See 54 FR
22392 (May 23, 1989); 57 FR 31454 (July 16, 1992).
B. Implementation Dates
The FHWA proposed in the NPRM that all foreign employers be
required to comply with part 382 requirements beginning on January 1,
1996, one year after large United States carriers, and the same day as
smaller United States carriers. The ABA commented that the date should
be January 1, 1995, arguing that there was no justification for
permitting discrimination against domestic motor carriers by granting
an additional year to large foreign employers. The ATA hoped that
further extension of the deadline would be unnecessary, but recognized
``the complexities of imposing (the testing) requirements on foreign-
based motor carriers and drivers, and that the details remain to be
worked out as an integral part of harmonization of medical standards.''
The CCMCSU requested that FHWA impose testing requirements one year
from the date of the final rule, in order to provide adequate time to
develop and implement effective programs and overcome the perceived
level of confusion of its members about implementing testing programs.
FHWA Response: The FHWA is most concerned with the effective
implementation of this program and has always provided reasonable
implementation schedules to domestic motor carriers to implement the
complex requirements of controlled substances and alcohol testing.
Given the changing nature and source of the DOT testing programs since
1988 and
[[Page 49324]]
the numerous delays, the FHWA believes it would be unreasonable to
expect a foreign-based employer to have sufficient understanding to
begin implementation immediately.
The FHWA believes the best course is to allow foreign-based
employers a similar implementation schedule as was provided to domestic
employers. Large domestic employers were provided approximately one
year to implement a testing program, while small employers were
provided two years. The purpose was to give employers with different
capabilities and resources sufficient time to implement technically
sound testing programs.
Therefore, the FHWA has decided that large foreign-based employers
will be required to implement part 382 on July 1, 1996, and small
foreign-based employers will be required to implement part 382 on July
1, 1997. Foreign employers may not implement part 382 testing
requirements until the dates specified.
Consistent with implementation by domestic employers, the factor
which determines whether a foreign-based employer is considered large
or small is the number of drivers of CMVs it employs or uses in North
American operations on a certain date. That date will be December 17,
1995, which correlates with the NAFTA implementation date for allowing
Mexican drivers to operate in California, Arizona, New Mexico, and
Texas. Thus, all drivers assigned by the foreign-based employer to
operate in North America on December 17, 1995, are to be included in
the count of drivers.
C. Testing Procedures
Various comments from Canadian entities have requested that
laboratories certified in Canada be acceptable for analysis of urine
specimens for controlled substance testing. The CCMCSU also has asked
whether foreign collection sites, medical review officers (MRO),
substance abuse professionals (SAP), breath alcohol technicians (BAT),
and other personnel involved in the testing process will be allowed to
provide services in Canada, or may only United States-based providers
provide such services.
FHWA Response: With respect to testing for controlled substances,
the Omnibus Act requires that the Secretary incorporate the scientific
and technical guidelines established by DHHS, including forensic
standards for laboratory procedures and certification. The DOT has
fulfilled this directive by requiring that all DOT-mandated testing be
conducted only by DHHS-certified laboratories, all of which are
currently in the United States.
The DOT recognizes the interest that Canadians have in using
Canadian laboratories. Yet, it is critical that the integrity of the
testing process be protected, which is why DHHS certification is
required for testing in the United States. The DOT will work with the
DHHS, Canada, and Mexico in determining whether foreign laboratory
procedures may be DHHS certified or are forensically comparable such
that reciprocity is possible.
As to the other elements mentioned, there is no requirement that
urine collection personnel, MROs, SAPs, or BATs be licensed, certified,
or trained in the United States. However, MROs and SAPs must be
appropriately licensed or certified by the jurisdiction in which they
perform such functions. The definition of an SAP may include
professional categories irrelevant in Canada and Mexico, particularly
certification by the National Association of Alcohol and Drug Abuse
Counselors; however, the DOT is willing to discuss reciprocity with
regard to national counterparts.
D. Enforcement
The ATA and the CCMCSU provided comments regarding the enforcement
of the alcohol and controlled substances testing regulations on
foreign-based motor carriers and drivers. The ATA suggests that
foreign-based drivers be required to join a United States-based
consortium within 30 days of their initial entry into the United
States, pass both alcohol and controlled substance tests, and be issued
tamper-resistant photo identification cards documenting compliance that
must be presented to United States border officials as a condition of
entry into the United States. The CCMCSU notes that it will work with
FHWA to facilitate and educate Canadian motor carriers about compliance
with these new rules, and suggests that the FHWA coordinate with
Transport Canada officials to address program enforcement issues.
FHWA Response: Enforcement of controlled substances and alcohol
testing requirements must be seen in the context of the entire motor
carrier safety program. The United States and Canada have had a long-
term, ongoing, and successful relationship enforcing motor carrier
safety regulations. The distinguishing factor in the testing area is
the absence of regulatory standards from Transport Canada. The FHWA
will work with Transport Canada and the Canadian provincial governments
to develop enforcement systems, using existing systems to the extent
possible, but also considering some form of certification of compliance
and other innovative methods.
The situation with Mexico is altogether different. Since Mexicans
will only begin operating in the United States in December 1995, the
enforcement systems in place on the northern border may be lacking on
the southern. Controlled substances and alcohol testing enforcement
will be a part of any systems established. Reciprocity and innovative
methods will be considered.
III. Final Rule
The applicability section of the 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, is deleted.
The implementation dates of the requirements of 49 CFR parts 40 and 382
will go into effect on July 1, 1996, for large foreign employers, and
will go into effect on July 1, 1997, for small foreign employers.
Accordingly, Sec. 382.115 is being amended to require foreign-based
carriers to implement the rule by July 1, 1996, and July 1, 1997,
whichever is applicable.
IV. Education and Technical Assistance
The FHWA is committed to assisting foreign governments, motor
carriers, and drivers to understand and implement effective alcohol and
controlled substance testing programs that meet the FHWA requirements.
The FHWA will, to the extent possible, make presentations, attend
seminars, and meet with interested parties to assist with the foreign
implementation of the FHWA alcohol and controlled substances testing
rules. If a group of foreign entities would like FHWA involvement in
educating their members or providing technical assistance in
implementing alcohol and controlled substances testing programs, please
provide a written request to the FHWA International Program, at least 4
weeks in advance, at the address noted above under the caption For
Further Information Contact.
[[Page 49325]]
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 not a significant
regulatory action within the meaning of Executive Order 12866 but is
significant within the meaning of Department of Transportation
regulatory policies and procedures. The FHWA prepared a regulatory
evaluation for the proposed rule. No comments were received with
respect to the evaluation. The evaluation indicates that the rule will
have a positive impact of $8.5 million discounted over ten years. A
copy of the regulatory evaluation is included in the docket for this
final rule.
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 that 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
criterion 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 associated with compliance
by foreign employers and drivers was included in the paperwork approval
request submitted to and approved on February 28, 1994, by the Office
of Management and Budget (OMB) under the Paperwork Reduction Act of
1980, 44 U.S.C. 3501 et seq. and has been assigned OMB control number
2125- 0543, approved through March 31, 1997.
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 382
Alcohol testing, Controlled substances testing, Highway safety,
Highways and roads, Motor carriers, Motor vehicle safety.
Issued on: September 19, 1995.
Federico Pena,
Secretary of Transportation.
Rodney E. Slater,
Federal Highway Administrator.
In consideration of the foregoing, the FHWA is amending 49 CFR,
subtitle B, chapter III, part 382 as set forth below:
PART 382--CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING--
[AMENDED]
1. The authority citation for part 382 continues to read as
follows:
Authority: 49 U.S.C. 31133, 31136, 31301 et seq., 31502; and 49
CFR 1.48.
2. Section 382.103 is revised to read as follows:
Sec. 382.103 Applicability.
(a) This part applies to every person and to all employers of such
persons who operate a commercial motor vehicle in commerce in any
State, and is subject to:
(1) The commercial driver's license requirements of part 383 of
this subchapter;
(2) The Licencia Federal de Conductor (Mexico) requirements; or
(3) The Canadian National Safety Code commercial driver's license
requirements.
(b) An employer who employs himself/herself as a driver must comply
with both the requirements in this part that apply to employers and the
requirements in this part that apply to drivers. An employer who
employs only himself/herself as a driver shall implement an alcohol and
controlled substances testing program that includes more persons than
himself/herself as covered employees in the random testing pool.
(c) This part shall not apply to employers and their drivers:
(1) Required to comply with the alcohol and/or controlled
substances testing requirements of parts 653 and 654 of this title; or
(2) Granted a full waiver from the requirements of the commercial
driver's license program; or
(3) Who have been granted a State option waiver from the
requirements of part 383 of this subchapter.
3. Section 382.115 is revised to read as follows:
Sec. 382.115 Starting date for testing programs.
(a) Large domestic employers. Each employer with fifty or more
drivers on March 17, 1994, will implement the requirements of this part
beginning on January 1, 1995.
(b) Small domestic employers. Each employer with fewer than fifty
drivers on March 17, 1994, will implement the requirements of this part
beginning on January 1, 1996.
(c) All domestic employers. Each domestic employer that begins
commercial motor vehicle operations after March 17, 1994, but before
January 1, 1996, will implement the requirements of this part beginning
on January 1, 1996. However, such an employer may be subject to the
requirements of Part 391, Subpart H on the date they begin operations,
if operating commercial motor vehicles in interstate commerce. A
domestic employer that begins commercial motor vehicle operations on or
after January 1, 1996, will implement the requirements of this part on
the date the employer begins such operations.
[[Page 49326]]
(d) Large foreign employers. Each foreign-domiciled employer with
fifty or more drivers assigned to operate commercial motor vehicles in
North America on December 17, 1995, must implement the requirements of
this part beginning on July 1, 1996.
(e) Small foreign employers. Each foreign-domiciled employer with
less than fifty drivers assigned to operate commercial motor vehicles
in North America on December 17, 1995, must implement the requirements
of this part beginning on July 1, 1997.
(f) All foreign employers. Each foreign-domiciled employer that
begins commercial motor vehicle operations in the United States after
December 17, 1995, but before July 1, 1997, must implement the
requirements of this part beginning on July 1, 1997. A foreign employer
that begins commercial motor vehicle operations in the United States on
or after July 1, 1997, must implement the requirements of this part on
the date the foreign employer begins such operations.
[FR Doc. 95-23590 Filed 9-21-95; 8:45 am]
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