Federal Register / Vol. 65, No. 81 / Wednesday, April 26, 2000 / Notices 24533

rate gasoline fuel pumps are designed to

dispense fuel.

Since the EPA’s regulation includes

an exemption for dispensing pumps

used exclusively for refueling heavyduty vehicles, it is possible that some of

the gasoline-powered vehicles that

would be exempted could be refueled at

a location (e.g., at a fleet terminal)

where the dispensing equipment

exceeds 10 gallons per minute.

However, the FMCSA does not believe

this would present a safety problem.

The FMCSA agrees with GM’s argument

in its application that the use of

automatic shut-off valves on fuel

dispensing pumps make it unlikely that

a significant amount of fuel will be

spilled if a vehicle is refueled using a

pump that exceeds the vehicle’s

capacity for receiving fuel. The agency

believes the combination of the EPA

regulation concerning dispensing

pumps, and the use of automatic shutoff nozzles on these pumps ensures a

level of safety that is equivalent to the

level of safety that would be obtained by

complying with § 393.67(c)(7)(ii).

The FMCSA believes any operational

problems experienced by motor carriers

using certain fuel pumps to refill GM

vehicles have already been resolved.

The vehicles in questions have been in

use for a number of years and are still

being produced. Therefore, motor

carriers using these vehicles have

experience refueling them. The FMCSA

is not aware of any safety problems

associated with the fill-pipe capacity for

the fuel tanks on GM G and C/K

vehicles.

The FMCSA also reviewed available

information on the origin of the fill-pipe

rule. The 20-gallon per minute rate in

§ 393.67(c)(7)(ii) is based on the Society

of Automotive Engineers’ (SAE)

recommended practice ‘‘Side Mounted

Gasoline Tanks’’ as revised in 1949. The

SAE later published fuel tank

manufacturing practices in SAE J703,

‘‘Fuel Systems,’’ an information report

which consisted of the former Interstate

Commerce Commission’s requirements

for fuel systems and tanks (codified at

49 CFR 193.65 in the 1953 edition of the

Code of Federal Regulations). The

information report retained the 20-

gallon-per-minute rate. The SAE

currently covers this subject under

recommended practice SAE J703 ‘‘Fuel

Systems—Truck and Truck Tractors.’’

The 1995 version of the recommended

practice continues to use the 20-gallonper-minute criterion for fill pipes.

The FMCSA does not have technical

documentation explaining the rationale

for the SAE’s original use of the 20-

gallon-per-minute rate in 1949 and

believes the adoption of the criterion in

Federal regulations may have resulted

in its continued use in the current SAE

recommended practice which references

§§ 393.65 and 393.67. As stated by the

SAE, ‘‘[t]he intent of this document is

not only to clarify the procedures and

reflect the best currently known

practices, but also to prescribe

requirements * * * that meet or exceed

all corresponding performance

requirements of FMCSR 393.65 and

393.67 that were in effect at the time of

issue.’’

The FMCSA believes the current

requirement may need to be

reconsidered in light of the EPA

requirements. While the agency reviews

this issue, motor carriers should not be

penalized for operating vehicles with

non-compliant fill pipes that they had

no practical means of identifying.

Therefore, the agency is exempting

interstate motor carriers operating

certain GM vehicles from

§ 393.67(c)(7)(ii).

Fuel Tank Marking and Certification

With regard to an exemption from the

fuel tank marking and certification

requirements (§§ 393.67(f)(2) and

(f)(3)(ii)), the FMCSA does not believe

there would be a readily apparent

adverse impact on safety associated

with the absence of the required

markings. Although the FMCSA

considers marking and certification

important for helping enforcement

officials and motor carriers quickly

distinguish between fuel tanks that are

certified as meeting the agency’s

requirements and those that are not, the

agency does not believe the operators of

the GM vehicles should be penalized

because the fuel tanks are not marked

and certified in accordance with

§ 393.67.

As a vehicle manufacturer, GM is

fully aware of all applicable Federal

Motor Vehicle Safety Standards issued

and enforced by the National Highway

Traffic Safety Administration, the

agency in the U.S. Department of

Transportation responsible for

regulating motor vehicle and equipment

manufacturers. However, GM may not

have had the same level of awareness

about all of the fuel tank requirements

of the FMCSA , the agency responsible

for regulating motor carriers.

GM has indicated that its tanks do not

meet the fill pipe requirements, and do

not have the necessary certification. An

exemption to the certification is needed

because GM cannot misrepresent its

product by certifying compliance with

all applicable provisions in § 393.67

while its fill pipe designs allow

approximately 10 gallons of gasoline

fuel per minute to flow into the fuel

tank. The agency believes granting

exemptions for the affected motor

carriers is the most effective way to

resolve the problem while ensuring

highway safety.

Terms and Conditions for the

Exemption

The FMCSA is providing an

exemption to §§ 393.67(c)(7)(ii),

393.67(f)(2), and 393.67(f)(3)(ii) for

motor carriers operating certain GM

vehicles. The exemption is effective

upon publication pursuant to 5 U.S.C.

553(d)(1) and is valid until May 26,

2002, unless revoked earlier by the

FMCSA. GM, or any of the affected

motor carriers, may apply to the FMCSA

for a renewal. The exemption preempts

inconsistent State or local requirements

applicable to interstate commerce.

The motor carriers operating these

vehicles are not required to maintain

documentation concerning the

exemption because the vehicles have

markings that would enable

enforcement officials to identify them.

The vehicles covered by the exemption

can be identified by their vehicle

identification numbers (VINs). The VINs

contain ‘‘J’’ or ‘‘K’’ in the fourth position

and a ‘‘1’’ in the seventh position.

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. 00–10400 Filed 4–25–00; 8:45 am]

BILLING CODE 4910–22–P

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.

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

24534 Federal Register / Vol. 65, No. 81 / Wednesday, April 26, 2000 / Notices

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., preemployment, 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

Federal Register / Vol. 65, No. 81 / Wednesday, April 26, 2000 / Notices 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 safetysensitive 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 safetysensitive 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

DEPARTMENT OF TRANSPORTATION

Maritime Administration

Reports, Forms and Recordkeeping

Requirements; Agency Information

Collection Activity Under OMB Review

AGENCY: Maritime Administration, DOT.

ACTION: Notice and request for

comments.

SUMMARY: In compliance with the

Paperwork Reduction Act of 1995 (44

U.S.C. 3501 et seq., this notice

announces that the information

collection abstracted below has been

forwarded to the Office of Management

and Budget (OMB) for review and

comment. Described below is the nature

of the information collection and its

expected burden. The Federal Register

notice with a 60-day comment period

soliciting comments on the following

collection was published on February 7,

2000 [65 FR 5928]. No comments were

received.

DATES: Comments must be submitted on

or before May 26, 2000.

ADDRESSES: Send comments to the

Office of Information and Regulatory

Affairs, Office of Management and

Budget, 725–17th Street, NW,

Washington, DC 20503, Attention

MARAD Desk Officer.

Comments are Invited on: Whether

the proposed collection of information

is necessary for the proper performance

of the functions of the Department,

including whether the information will

have practical utility; the accuracy of

the Department’s estimate of the burden

of the proposed information collection;

ways to enhance the quality, utility and

clarity of the information to be

collected; and ways to minimize the

burden of the collection of information

on respondents, including the use of

automated collection techniques or

other forms of information technology.

A comment to OMB is best assured of

having its full effect if OMB receives it

within 30 days of publication.

FOR FURTHER INFORMATION CONTACT: Otto

A. Strassburg, Chief, Division of Marine

Insurance, Office of Insurance and

Shipping Analysis, Maritime

Administration, 400 Seventh Street, SW,

Room 8117, Washington, DC 20590,

telephone number 202–366–4161.

Copies of this collection can also be

obtained from that office.

SUPPLEMENTARY INFORMATION:

Maritime Administration

Title of Collection: ‘‘Seamen’s Claims;

Administrative Action and Litigation’’.

OMB Control Number: 2133–0522.

Type of Request: Approval of an

existing information collection.

Affected Public: Officers or members

of a crew who suffered death, injury, or

illness while employed on vessels as

employees of the United States through

the National Shipping Authority,

Maritime Administration, or successor.

Also included are surviving dependents,

beneficiaries, and or/legal

representatives of officers or crew

members.

Form(s): None.

Abstract: The collection consists of

information obtained from claimants for

death, injury or illness suffered while

serving as officers or members of a crew

employed on vessels as employees of

the United States through the National

Shipping Authority, Maritime

Administration (MARAD), or successor.

The information will be evaluated by

MARAD officials to determine if the

claim is fair and reasonable. If the claim

is allowed, it is settled, a release is

obtained from the claimant verifying

consummation of the settlement, and

payment is made to the claimant.