[Federal Register Volume 63, Number 112 (Thursday, June 11, 1998)]
[Notices]
[Pages 32038-32040]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15609]


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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 final determination.

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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 
(CDL) requirements.

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.

SUPPLEMENTARY INFORMATION:

Electronic Access

    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) (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 
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 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 
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.

[[Page 32039]]

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:

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

Is This Waiver of the Canadian Electrical Utilities in the Public 
Interest and Does it 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 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

[[Page 32040]]

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 
entities.
    For the reasons in the FFA above, the FHWA certifies this action 
does not have a significant economic impact on a substantial number of 
small entities.
    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 
assessment.
    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 
waiver.
    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 
the environment.

    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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