[Federal Register Volume 59, Number 31 (Tuesday, February 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2038]
[[Page Unknown]]
[Federal Register: February 15, 1994]
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: Notice of proposed rulemaking (NPRM).
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SUMMARY: The FHWA is proposing to extend the applicability of rules
regarding controlled substance and alcohol use and testing to include
foreign-based drivers of motor carriers operating in the United States.
The goal of alcohol and controlled substances testing is to detect and
deter misuse of alcohol and controlled substances by drivers of
commercial motor vehicles, thereby enhancing U.S. highway safety by
reducing accidents.
DATES: Written, signed comments must be received on or before April 18,
1994.
ADDRESSES: Submit written, signed comments to FHWA Docket No. MC-93-3,
room 4232, Office of the Chief Counsel, 400 Seventh Street, SW.,
Washington, DC 20590. All comments received will be available for
examination at the above address from 8:30 a.m. to 3:30 p.m., e.t.,
Monday through Friday, except Federal legal holidays.
FOR FURTHER INFORMATION CONTACT: For information regarding program
issues: Mr. David Miller, Office of Motor Carrier Standards, (202) 366-
2981. For information regarding legal issues: Mr. David Sett, Office of
the Chief Counsel, (202) 366-0834, Federal Highway Administration,
Department of Transportation, 400 Seventh Street, SW., Washington, DC
20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday
through Friday, except legal 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/use, periodic, post-accident,
reasonable cause and random drug testing of commercial motor vehicle
drivers. The FHWA rule applies to all covered drivers while operating
in the United States, regardless of whether they are based in a foreign
country or the United States. The rule provided, 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 in any event 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 has delayed the effective date of drug testing
requirements for foreign-based employees 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 last of these established January 2, 1995, as the
date for compliance.
Meanwhile, on October 28, 1991, the Omnibus Transportation Employee
Testing Act of 1991 (Omnibus Act) was enacted. 49 U.S.C. 2717. The
Omnibus Act requires the Secretary of Transportation to issue
regulations requiring drug and alcohol testing of commercial motor
vehicle drivers. Proposed rules implementing such testing were
published on December 15, 1992. See 57 FR 59516 for alcohol and 57 FR
59567 for drugs. These new rules would replace the current drug testing
rule in 49 CFR part 391 and would institute alcohol testing. The final
rule implementing the Omnibus Act is being published elsewhere in
today's Federal Register.
The Omnibus Act applies to foreign-based motor carriers and drivers
on its face, with the proviso that the new rules be ``consistent with
the international obligations of the United States, and * * * into
consideration any applicable laws and regulations of foreign
countries.'' 49 U.S.C. 2717(e)(3). Thus, foreign-based drivers are
required to be covered by the statute, but the Secretary is granted the
authority to deem the requirement satisfied by the testing laws of
foreign nations.
On December 15, 1992, the FHWA published an advance notice of
proposed rulemaking (ANPRM) to obtain specific information from
interested parties. Now, based upon comments received, the FHWA seeks
comments on this NPRM.
II. Comments
There were fifteen comments to the docket. All specific references
to a foreign nation were to Canada. Two commenters noted they had no
knowledge of the drug and alcohol testing laws or practices of Mexico.
No other nations were mentioned in the comments as being a base from
which drivers or motor carriers operate in the United States.
A. Applicability
Of the fifteen comments, nine expressed support for extending
coverage of testing and misuse regulations to foreign-based drivers.
Two commenters were opposed to extension. Another commenter, the Owner-
Operator Independent Drivers Association (OOIDA), opposed all testing
of drivers, except upon a probable cause determination of a law
enforcement official. The OOIDA stated, however, that if United States-
based drivers are tested, then foreign drivers should be tested to the
same extent. Finally, the Canadian Embassy suggested that unilateral
implementation of testing of Canadian drivers should be avoided in
favor of continuing bilateral negotiations aimed at mutual recognition
of existing United States regulations and Canadian regulations under
development.
The most common rationale offered in support of coverage was
fairness. Several commenters pointed to the competitive advantage
enjoyed by foreign motor carriers which need not incur the substantial
cost of testing. Comments in support also focused on the safety benefit
to be derived from extended testing.
The commenters opposed to coverage provided a variety of reasons
for excluding foreign-based drivers. The Canadian Owner-Operator
Drivers Association (COODA) stated it was discriminatory to require
testing of Canadian drivers because Canada has no laws authorizing such
testing. The International Brotherhood of Teamsters argued that
requiring testing of Canadian drivers was a violation of Canadian
sovereignty, and unnecessary due to the absence of a demonstrated
substance abuse problem in the industry. The Canadian Embassy referred
to principles of comity, as embodied in the bilateral negotiations, and
the difficulty of enforcing a unilateral prescription. The embassy
noted that rules requiring pre-employment, reasonable cause, follow-up,
and post-accident testing of commercial vehicle operators for
controlled substances and alcohol are currently under development in
Canada.
FHWA Response. The FHWA disagrees with the notion that requiring
foreign-based drivers to be drug and alcohol tested as a condition of
operating in the United States is a violation of the sovereignty of
Canada, or any other nation. Foreign drivers only need be tested
insofar as they operate in the United States. In no way is it being
suggested that transportation occurring solely outside the borders of
the United States, or that part of a cross border movement taking place
on foreign soil, be subject to drug testing rules. Moreover, compliance
with the testing rules may be entirely accomplished within the borders
of the United States, foreclosing any concerns of conflict with laws of
other nations which might prohibit, for instance, certain activities
such as random testing.
Drug and alcohol testing is merely one of the many Federal
requirements with which foreign, and domestic, drivers and motor
carriers are obliged to comply while operating in the United States.
That another sovereignty does not place such requirements on motor
carriers and drivers is immaterial. There are, after all, motor carrier
safety standards in Canada and Mexico which do not exist in this
country or are inconsistent with United States standards, but
nevertheless apply to United States carriers operating in those
countries. In other words, United States national standards might be
different from those in other countries, but they are applied evenly
across the board to all carriers and drivers operating in the United
States. Because of this equality of national treatment, there is no
discrimination against foreign carriers or drivers. Moreover, as a
number of commenters stated, it may well be discriminatory against
domestic carriers not to require testing of foreign operators.
Though there are no international legal obstacles to application of
the rules to foreign-based drivers, the FHWA recognizes the efficacy of
applying the principles of ``comity'' (recognition of another nation's
laws and judicial decisions) expressed by the Canadian Embassy. As the
embassy stated, the Department and its Canadian counterpart have been
discussing this issue and the need for common standards since
publication of the original drug testing rule. The discussions can
further be viewed in the context of wider ranging trilateral,
structured negotiations between Canada, Mexico, and the United States
aimed at achieving greater harmonization of the national motor carrier
safety standards of the three nations. These negotiations resulted, for
example, in a Memoranda of Understanding in which the United States
agreed to recognize certain commercial driver's licenses issued in
Mexico and Canada. Though negotiations have produced no similar
``international obligations'' regarding drug and alcohol testing, it
would be prudent to structure foreign-based applicability in such a way
as to be consistent with the negotiations, allow rule development in
other countries to proceed, and explore opportunities for reciprocal
agreements.
B. Compliance
In addition to raising the threshold applicability issue, the ANPRM
posed a number of questions on the mechanics of compliance. In general,
the comments identified no serious difficulties in applying the rules
to foreign-based carriers. Several implementation strategies were
offered.
Most commenters believed the rule could and should be administered
in Canada, rather than requiring compliance activities to be performed
solely in the United States. For example, the COODA recommended using
Canadian doctors as Medical Review Officers and arranging for
certification of Canadian laboratories. Imperial Oil Limited noted that
two Canadian laboratories are certified by the U.S. Department of
Health and Human Services and that a similar Canadian system of
certification could be developed. While not disagreeing with allowing
such activities to be performed in foreign nations, National MRO, Inc.
stated that it was possible that all testing services, including
collection, laboratory analysis, medical review, and substance abuse
counseling could be done in the United States, and estimated an
increase in cost of up to 10 percent for additional communications
services.
The American Trucking Associations, Inc. suggested that foreign-
based drivers be required to join and participate in a United States-
based consortium within 30 days of entry into the United States, and
that drivers be subject to review of participation at the border upon
subsequent entry. Pinnacle Transport Services, Inc. suggested use of a
compliance certification card which could be presented at the border
upon entry. National Solid Waste Management Association stated that
testing could be performed at ports of entry.
FHWA response. The FHWA agrees that the rule as written can be
complied with by foreign-based carriers either totally in the United
States or totally in foreign nations, or by some combination of both.
The FHWA also believes that the various suggestions regarding
compliance in Canada, certification of Canadian laboratories, and
mutual recognition of reciprocal standards may offer benefits in
efficiency, cost, and comity and should be explored further.
III. Proposal
The applicability section of the final 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, would be
deleted. Based on the comments about the efficacy and progress of the
negotiations aimed at achieving compatibility and reciprocity of
testing standards, the implementation date will be delayed to provide
maximum opportunity for the process to be completed successfully.
However, if the process is not completed successfully, the requirements
of 49 CFR parts 40 and 382 are proposed to go into effect on January 1,
1996. Accordingly, a section would be added, Sec. 382.119, which would
provide that foreign-based carriers will be required to implement the
rule by January 1, 1996.
The FHWA requests comments on this proposal to require foreign-
based employees of foreign-domiciled employers to be tested for the use
of controlled substances and alcohol.
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 a significant
regulatory action within the meaning of Executive Order 12866 and
significant within the meaning of Department of Transportation
regulatory policies and procedures. The FHWA has prepared a regulatory
evaluation for this proposal and the evaluation indicates that the rule
will have a small positive impact of $8.5 million discounted over ten
years. A copy of the regulatory evaluation is included in the docket
for this NPRM.
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 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
criteria 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 in part 382 of this rule
have been submitted to the Office of Management and Budget for approval
under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq.
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 Part 382
Alcohol testing, Controlled substances testing, Highway safety,
Highways and roads, Motor carriers, Motor vehicle safety.
Issued on: January 25, 1994.
Federico Pena,
Secretary of Transportation.
Rodney E. Slater,
Federal Highway Administrator.
In consideration of the foregoing, the FHWA proposes to amend 49
CFR, subtitle B, chapter III, part 382 as set forth below:
PART 382--CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING
1. The authority citation for part 382 continues to read as
follows:
Authority: 49 U.S.C. app. 2505; 49 U.S.C. app. 2701 et seq.; 49
U.S.C. 3102; 49 CFR 1.48.
2. In Sec. 382.103, paragraph (c)(4) is removed and paragraph
(c)(3) is revised to read as follows:
Sec. 382.103 Applicability.
* * * * *
(c) * * *
(3) Who have been granted a State option waiver from the
requirements of part 383 of this subchapter.
3. Part 382, subpart A is amended by adding a new Sec. 382.119 to
read as follows:
Sec. 382.119 Starting date for controlled substances and alcohol
testing programs of foreign-domiciled employers.
All foreign-domiciled employers conducting transportation
operations, by motor vehicle, in the United States shall have
implemented controlled substances and alcohol testing programs that
conform to this part and part 40 of this title by January 1, 1996.
Voluntary compliance may be effected at an earlier date.
[FR Doc. 94-2038 Filed 2-3-94; 1:00 pm]
BILLING CODE 4910-22-P
