[Federal Register Volume 64, Number 243 (Monday, December 20, 1999)]
[Notices]
[Pages 71181-71183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32912]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Office of Motor Carrier Safety
[OMCS Docket No. OMCS-99-6354]


Controlled Substances and Alcohol Use and Testing; PacifiCorp 
Electric Operations' Exemption Application; Random Testing of Drivers

AGENCY: Office of Motor Carrier Safety (OMCS), DOT.

ACTION: Notice of application for exemption and proposal to deny 
exemption; request for comments.

-----------------------------------------------------------------------

SUMMARY: The OMCS is announcing its proposal to deny the application of 
PacifiCorp Electric Operations (PacifiCorp) for an exemption from the 
OMCS' controlled substances and alcohol random testing requirements in 
the Federal Motor Carrier Safety Regulations (FMCSRs). PacifiCorp has 
requested an exemption because the company believes it has a low 
percentage of positive random test results since testing was initiated. 
PacifiCorp's positive rate for random controlled substances tests is 1 
percent and its positive rate for random alcohol tests is 0.8 percent. 
The company requested regulatory relief but did not offer alternatives 
that would have comparable deterrent effects. The OMCS intends to deny 
the exemption because PacifiCorp did not explain how it would achieve a 
level of safety that is equivalent to, or greater than, the level of 
safety that would be obtained by complying with the random controlled 
substances and alcohol testing requirements.


[[Page 71182]]


DATES: Comments must be received on or before January 19, 2000.

ADDRESSES: Submit written, signed comments with the docket number 
appearing at the top of this document 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 from 9 a.m. to 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. Larry W. Minor, Office of Motor 
Carrier Research and Standards, HMCS-10, (202) 366-4009, Office of 
Motor Carrier Safety, 400 Seventh Street, SW., Washington, D.C. 20590-
0001; or Mr. Charles E. Medalen, Office of the Chief Counsel, HCC-20, 
(202) 366-1354, Federal Highway Administration, 400 Seventh Street, 
SW., Washington, D.C. 20590-0001. Office hours are from 7:45 a.m. to 
4:15 p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Internet users may access all comments submitted to the Docket 
Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh Street, SW., 
Washington, DC 20590-0001, in response to this notice 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 
online for more information and help.
    An electronic copy of this document may be downloaded using a modem 
and suitable communications software from the Government Printing 
Office's Electronic Bulletin Board Service at (202) 512-1661. Internet 
users may reach the Office of the Federal Register's home page at 
http://www.nara.gov/fedreg and the Government Printing Office's 
database at: http://www.access.gpo.gov/nara.

Creation of New Agency

    Section 338 of the FY 2000 Department of Transportation and Related 
Agencies Appropriations Act prohibits the expenditure of any funds 
appropriated by that Act ``to carry out the functions and operations of 
the Office of Motor Carriers within the Federal Highway 
Administration'' (Pub. L. 106-69, October 9, 1999, 113 Stat. 986, at 
1022). Section 338 further provides that, if the authority of the 
Secretary of Transportation on which the functions and operations of 
the Office of Motor Carriers are based is redelegated outside the FHWA, 
the funds available to that Office under the Act may be transferred and 
expended to support its functions and operations.
    The Secretary has rescinded the authority previously delegated to 
the FHWA to perform motor carrier functions and operations. This 
authority has been redelegated to the Director, Office of Motor Carrier 
Safety (OMCS), a new office within the Department of Transportation (64 
FR 56270, October 19, 1999).
    The motor carrier functions of the FHWA's Resource Centers and 
Division (i.e., State) Offices have been transferred to OMCS Resource 
Centers and OMCS Division Offices, respectively. Rulemaking, 
enforcement and other activities of the Office of Motor Carrier and 
Highway Safety while part of the FHWA will be continued by the OMCS. 
The redelegation will cause no changes in the motor carrier functions 
and operations previously handled by the FHWA. For the time being, all 
phone numbers and addresses are unchanged.

Background

    On June 9, 1998, the President signed the Transportation Equity Act 
for the 21st Century (TEA-21) (Public Law 105-178, 112 Stat. 107). 
Section 4007 of TEA-21 amended 49 U.S.C. 31315 and 31136(e) concerning 
the Secretary of Transportation's (the Secretary's) authority to grant 
exemptions from the FMCSRs. An exemption may be granted for no longer 
than two years from its approval date, and may be renewed upon 
application to the Secretary.
    Section 4007 of the TEA-21 requires the OMCS to publish a notice in 
the Federal Register for each exemption requested, explaining that the 
request has been filed, and providing the public with an opportunity to 
inspect the safety analysis and any other relevant information known to 
the agency, and to comment on the request. Prior to granting a request 
for an exemption, the agency must publish a notice in the Federal 
Register identifying the person or class of persons who will receive 
the exemption, the provisions from which the person will be exempt, the 
effective period, and all terms and conditions of the exemption. The 
terms and conditions established by the OMCS must ensure that the 
exemption will likely achieve a level of safety that is equivalent to, 
or greater than, the level that would be achieved by complying with the 
regulation.
    On December 8, 1998, the FHWA published an interim final rule 
implementing section 4007 of TEA-21 (63 FR 67600). The regulations at 
49 CFR part 381 establish the procedures to be followed to request 
waivers and to apply for exemptions from the FMCSRs, and the procedures 
used to process them.
    As indicated earlier in this notice, the Secretary has rescinded 
the authority previously delegated to the FHWA to carry out motor 
carrier functions and operations. Therefore, the regulations issued by 
the FHWA are now regulations of the OMCS. On October 29, 1999 (64 FR 
58355), the OMCS issued a final rule amending the heading for chapter 
III of Title 49 of the Code of Federal Regulations to reflect the 
organizational changes.

PacifiCorp's Application for an Exemption

    PacifiCorp applied for an exemption from 49 CFR 382.305, which 
provides requirements concerning random controlled substances and 
alcohol testing of commercial motor vehicle drivers. A copy of the 
application is in the docket identified at the beginning of this 
notice. PacifiCorp indicated that it is an electric utility with 133 
service centers and other facilities in six States. Approximately 1,600 
drivers would be affected if the exemption were granted. PacifiCorp 
stated:

    PacifiCorp does not anticipate any adverse safety impacts from 
this exemption due to the current low level of positive random 
results and the company's intention to continue its for-cause, pre-
employment and return-to-work drug and alcohol screening programs.
    The current program that chooses the company's Commercial 
Drivers License holders for random screens operates at an annual 50 
percent sampling for drugs and a 10 percent sampling for alcohol. 
This program has an adverse effect on the productivity of 
PacifiCorp's employees in both union and supervisory ranks. 
Administering and arranging each random screen can take up to two 
supervisory hours and three to four non-supervisory hours out of an 
eight-hour workday. This impact is becoming more critical as the 
electric utility enters a new era of competition.
    The approximately $150,000 spent each year on random drug and 
alcohol screens takes funds away from innovative traffic safety 
programs that PacifiCorp could develop. This amount does not include 
the aforementioned cost of lost productivity, which could easily 
double this figure.

Basis for Proposal to Deny the Exemption

    The OMCS has carefully reviewed PacifiCorp's application for an 
exemption from the controlled substances and alcohol random testing 
requirements of 49 CFR 382.305, but does not believe that a motor 
carrier's low positive testing rate is, in and of

[[Page 71183]]

itself, sufficient reason for the carrier to be granted an exemption 
from the random testing regulations. Random testing identifies drivers 
who use controlled substances or misuse alcohol but are able to use the 
predictability of other testing methods (e.g., pre-employment, and 
reasonable suspicion) to avoid testing positive. More importantly, 
random testing serves as a deterrent against beginning or continuing 
prohibited controlled substances use and misuse of alcohol.
    Generally, the controlled substances and alcohol testing 
requirements are applicable to every person who operates a CMV (as 
defined in 49 CFR 382.107) in commerce in any State and is subject to 
the commercial driver's license (CDL) requirements (49 CFR part 383). 
The rules are also applicable to each employer 1 of these 
individuals. The regulations require pre-employment controlled 
substances testing, and post-accident, random, reasonable suspicion, 
return-to-duty (for drivers removed from duty after a positive test 
result), and follow-up testing for controlled substances and alcohol.
---------------------------------------------------------------------------

    \1\ Employer means any person (including the United States, a 
State, District of Columbia, tribal government, or a political 
subdivision of a State) who owns or leases a commercial motor 
vehicle or assigns persons to operate such a vehicle. The term 
employer includes an employer's agents, officers and 
representatives.
---------------------------------------------------------------------------

    The selection of drivers for random alcohol and controlled 
substances testing must be made by a scientifically valid method, such 
as a random number table or a computer-based random number generator 
that is matched with drivers' social security numbers, payroll 
identification numbers, or other comparable identifying numbers. Under 
the selection process used, each driver must have an equal chance of 
being tested each time selections are made. The employer must randomly 
select a sufficient number of drivers for testing during each calendar 
year to equal an annual rate not less than the minimum annual 
percentage rate for random alcohol and controlled substances testing, 
currently 10 and 50 percent, respectively.
    Although PacifiCorp indicated that its positive testing rates for 
controlled substances and alcohol are 1 percent and 0.8 percent, 
respectively, these rates are indications that its workplace is not 
presently drug-free and that random testing still serves a very 
necessary purpose. Since PacifiCorp appears to have an annual average 
of 1,600 drivers, the company is required to conduct at least 800 
random controlled substances tests, and 160 random alcohol tests during 
each calendar year. A positive testing rate of 1 percent for controlled 
substances means that out of the 800 random tests conducted, eight 
individuals were found to have violated the prohibition on the use of 
controlled substances. A positive testing rate of 0.8 percent for 
alcohol means that out of the 160 random tests conducted, two 
individuals were found, at a minimum, to have violated the prohibition 
against reporting for duty or remaining on duty requiring the 
performance of safety-sensitive functions while having an alcohol 
concentration of 0.04 or greater (49 CFR 382.201). These two 
individuals may also have violated the prohibitions against using 
alcohol while performing safety-sensitive functions (49 CFR 382.205), 
and using alcohol within four hours of performing safety-sensitive 
functions (49 CFR 382.207).
    While PacifiCorp's positive test rates are low, some of its drivers 
were not deterred from using controlled substances, and misusing 
alcohol. PacifiCorp said that it did ``not anticipate any adverse 
safety impacts from this exemption.'' Even if the effect of ending 
random testing were nil--which is unlikely--the projection into the 
future of PacifiCorp's current positive test rates means that at least 
80 of its drivers would operate CMVs on the public highways in the next 
decade with controlled substances, and another 20 with substantial 
amounts of alcohol, in their bodies. This is not reassuring.
    Furthermore, PacifiCorp did not indicate whether drivers who tested 
positive were terminated, or returned to duty. If they returned to 
duty, what was their subsequent record of compliance? The agency 
believes this information is relevant.
    Discontinuing random controlled substances and alcohol testing 
would send a message that as long as CMV drivers are not involved in 
serious accidents and do nothing that would prompt an employer to 
conduct a reasonable suspicion test, there is no real obstacle to 
recreational use of controlled substances or the abuse of alcohol.
    The current post-accident and reasonable suspicion testing 
requirements would remain in effect even if PacifiCorp's request were 
granted, but the OMCS does not consider them effective deterrents 
without the complementary random testing requirement. In the case of 
post-accident testing, the damage has already been done before a test 
is conducted. For reasonable suspicion testing, indicators that the 
driver may have a problem have already become apparent to a trained 
observer. Random testing however, provides a means to detect driver 
problems in the absence of an accident or reasonable-suspicion 
indicators. An effective controlled substances and alcohol program must 
have all three of these elements to deter the prohibited conduct, and, 
if deterrence fails, to detect such conduct by drivers. Even with all 
three of these elements, some drivers engage in prohibited conduct, as 
evidenced by PacifiCorp's own data. It is extremely unlikely that 
discontinuing the random testing portion of the program will allow 
PacifiCorp to achieve the same level of safety currently achieved 
through a program that includes all the required elements.
    Although PacifiCorp argues that the money spent each year on random 
drug and alcohol testing takes funds away from innovative traffic 
safety programs that the company could develop, it gave no specific 
examples of safety programs that would have been conducted. The agency 
does not intend to accept such claims at face value.

Request for Comments

    In accordance with 49 U.S.C. 31315 and 31136(e), the OMCS is 
requesting public comment from all interested persons on the exemption 
application from PacifiCorp. All comments received before the close of 
business on the comment closing date indicated at the beginning of this 
notice will be considered and will be available for examination in the 
docket at the location listed under the address section of this notice. 
Comments received after the comment closing date will be filed in the 
public docket and will be considered to the extent practicable, but the 
OMCS may make its decision at any time after the close of the comment 
period. In addition to late comments, the OMCS will also continue to 
file, in the public docket, relevant information that becomes available 
after the comment closing date. Interested persons should continue to 
examine the public docket for new material.

    Authority: 49 U.S.C. 31136 and 31315; and 49 CFR 1.73.

    Issued on: December 14, 1999.
Julie Anna Cirillo,
Acting Director, Office of Motor Carrier Safety.
[FR Doc. 99-32912 Filed 12-17-99; 8:45 am]
BILLING CODE 4910-22-P