[Federal Register Volume 63, Number 48 (Thursday, March 12, 1998)]
[Notices]
[Pages 12144-12147]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-6373]


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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.

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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) 
requirements.

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.

SUPPLEMENTARY INFORMATION:

Electronic Access

    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 
help.
    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: 
http://www.access.gpo.gov/su__docs.

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, 
1995.
    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

[[Page 12145]]

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 
from compliance).

1. Hydro-Quebec 75 Boulevard Rene-Levesque ouest, Montreal, Quebec H2Z 
1A4
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 
B3J 2W5

    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 
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 
Responding Carrier.
    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 
States.

1. Connecticut
2. Maine
3. Massachusetts
4. New Hampshire
5. Rhode Island
6. Vermont

    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 
electric utilities.

1. Bangor Hydro-Electric Company, 33 State Street, P.O. Box 932, 
Bangor, Maine 04401
2. Boston Edison Company, 800 Boylston Street, Boston, Massachusetts 
02199
3. Burlington Electric Department, 585 Pine Street, Burlington, Vermont 
05401
4. Central Maine Power, 83 Edison Drive, Augusta, Maine 04336
5. Central Vermont Power Service Corporation, 77 Grove Street, Rutland, 
Vermont 05701
6. Citizens Utilities Company, Box 604, Newport, Vermont
7. Commonwealth Electric Company, 2421 Cranberry Highway, Wareham, 
Massachusetts 02571
8. Concord Electric Company, One McGuire Street, Concord, New Hampshire 
03301
9. Eastern Utilities Associates, P.O. Box 2333, Boston, Massachusetts 
02107

    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 
Hampshire 03874
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, 
Massachusetts 01582
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, 
Massachusetts 02780
17. The United Illuminating Company, 157 Church Street, New Haven, 
Connecticut 06506
18. Vermont Electric Power Company, Inc., RR 1, Box 4077, Rutland, 
Vermont 05701

[[Page 12146]]

19. Vermont Marble--Power Division, 61 Main Street, Proctor, Vermont 
05765.

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 
Vehicles?

    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 
action.
    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 
trucks.

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 
accidents and

[[Page 12147]]

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 
entities.
    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 
assessment.
    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 
waiver.
    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 
docket.
    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 
the environment.

    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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