[Federal Register: April 26, 2000 (Volume 65, Number 81)]
[Notices]
[Page 24533-24535]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26ap00-122]
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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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