[Federal Register Volume 65, Number 81 (Wednesday, April 26, 2000)]
[Notices]
[Pages 24533-24535]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-10399]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[FMCSA Docket No. FMCSA-99-6354 (formerly OMCS-99-6354)]


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

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of denial of application for exemption.

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SUMMARY: The FMCSA is denying the application of PacifiCorp Electric 
Operations (PacifiCorp) for an exemption from the FMCSA's controlled 
substances and alcohol random testing requirements in the Federal Motor 
Carrier Safety Regulations (FMCSRs). PacifiCorp requested an exemption 
because the company believes it has a low percentage of positive random 
test

[[Page 24534]]

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 FMCSA is denying 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. The company requested 
regulatory relief but did not offer alternatives that would have 
comparable deterrent effects.

FOR FURTHER INFORMATION CONTACT: Mr. Larry W. Minor, Office of Bus and 
Truck Standards and Operations, (202) 366-4009, Federal Motor Carrier 
Safety Administration, 400 Seventh Street, SW., Washington, DC 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, DC 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 the previous notice 
concerning this subject 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

    On December 9, 1999, the President signed the Motor Carrier Safety 
Improvement Act of 1999 (Public Law 106-159, 113 Stat. 1748). The new 
statute established the FMCSA in the Department of Transportation. On 
January 4, 2000, the Office of the Secretary published a final rule 
rescinding the authority previously delegated to the Office of Motor 
Carrier Safety (OMCS) (65 FR 220). This authority is now delegated to 
the FMCSA.
    The motor carrier functions of the OMCS's Resource Centers and 
Division (i.e., State) Offices have been transferred to FMCSA Service 
Centers and FMCSA Division Offices, respectively. Rulemaking, 
enforcement and other activities of the Office of Motor Carrier Safety 
while part of the FHWA, and while operating independently of the FHWA, 
will be continued by the FMCSA. The redelegation will cause no changes 
in the motor carrier functions and operations previously handled by the 
FHWA or the OMCS. 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 FMCSA 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 FMCSA 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.

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.

Notice of Application and Proposal to Deny Exemption; Request for 
Comments

    On December 20, 1999 (64 FR 71181), the Office of Motor Carrier 
Safety published a notice announcing its proposal to deny PacifiCorp's 
application for an exemption from the controlled substances and alcohol 
random testing requirements in the FMCSRs. The notice discussed 
PacifiCorp's application, the basis for proposing to deny the 
exemption, and requested public comment from all interested parties.

Discussion of Docket Comments

    The FMCSA received one comment to the notice proposing to deny 
PacifiCorp's application for an exemption--from the Georgia Public 
Service Commission (Georgia PSC). The Georgia PSC indicated that it 
agreed with the proposal to deny the exemption application. The Georgia 
PSC stated:

    The Commission takes the position that to remove the important 
deterrent of random controlled substances and alcohol testing is a 
detriment to safety, and such removal would set a dangerous 
precedent if granted. This is especially true in light of the fact 
that the applicant does not propose any specific alternative that 
would produce an equivalent level of safety.

FMCSA Decision

    The FMCSA has carefully reviewed PacifiCorp's application for an 
exemption from the controlled substances and alcohol random testing 
requirements of 49 CFR 382.305, and the comment from the Georgia PSC 
and decided to deny the application. As indicated in the proposal to 
deny the application, a motor carrier's low positive testing rate is 
not, in and of 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.
    Although PacifiCorp indicated that its positive testing rates for 
controlled

[[Page 24535]]

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. 
Based on the information submitted by PacifiCorp, the company appears 
to employ an annual average of 1,600 drivers, which means 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).
    It is clear that some of PacifiCorp's drivers were not deterred 
from using controlled substances, and misusing alcohol. It is therefore 
unreasonable to conclude that exempting the company from random 
controlled substances and alcohol testing would provide a more 
effective deterrent for the company's workforce. 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.
    Although the current post-accident and reasonable suspicion testing 
requirements would have remained in effect if PacifiCorp's request were 
granted, the FMCSA 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 would have allowed PacifiCorp to 
achieve the same level of safety currently achieved through a program 
that includes all the required elements.


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

    Issued on: April 14, 2000.
Julie Anna Cirillo,
Acting Deputy Administrator.
[FR Doc. 00-10399 Filed 4-25-00; 8:45 am]
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