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###### Department of Transportation

###### Federal Motor Carrier Safety Administration 

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

# AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT. 

# ACTION:

Notice of denial of application for exemption. 

# 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                               ( print 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                           ( print 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] 

BILLING CODE 4910-22-P