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###### Department of Transportation

###### Federal Motor Carrier Safety Administration 

# AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT. 

# ACTION:

Notice. 

# SUMMARY:

The FMCSA is announcing the motor carrier industry's 1997 and 1998 controlled substances and alcohol usage rates based on random testing. The positive rate for controlled substances was 1.3 percent in calendar year 1997, and 1.5 percent in 1998. The alcohol “violation” rate was 0.2 percent in 1997, and 0.4 percent in 1998. Because the alcohol “violation” rate has remained below 0.5 percent for these two years, the FMCSA is announcing that it is maintaining the random alcohol testing rate for calendar year 2000 at 10 percent, in accordance with the provisions of the testing regulations. This lowered rate continues the DOT policy set in 1998 when data supported the same policy decision. Because the positive rate from controlled substances testing has remained above 1.0 percent during this same period, the FMCSA is maintaining the random controlled substances testing rate for calendar year 2000 at 50 percent, in accordance with FMCSA regulations. This notice serves to continue the existing policy and provides that it is effective until further notice. 

# FOR FURTHER INFORMATION CONTACT:

For enforcement questions: Mr. Kenneth Rodgers, Office of Enforcement and Compliance (HMCE-20), (202) 366-4016; For substantive questions: Mr. David M. Lehrman, Office of Policy, Plans, and Regulations, (202) 366-0994; For statistical questions: Mr. Richard Gruberg, Office of Motor Carrier Information Analysis (HIA-20), (202) 366-2959; For legal questions, Mr. Michael Falk, Office of the Chief Counsel, (HCC-20), (202) 366-1384, Federal Highway Administration, 400 Seventh Street, SW., Washington, DC 20590. 

# SUPPLEMENTARY INFORMATION:

## Electronic Access 

                    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 

In October 1999, the Secretary of Transportation rescinded the authority previously delegated to the Federal Highway Administrator to perform the motor carrier functions and operations, and to carry out the duties and powers related to motor carrier safety, that are statutorily vested in the Secretary. That authority was redelegated to the Director of the Office of Motor Carrier Safety (OMCS), a new office within the Department (see, 64 FR 56270, October 19, 1999, and 64 FR 58356, October 29, 1999). The OMCS had previously been the FHWA's Office of Motor Carriers (OMC). 

The Motor Carrier Safety Improvement Act of 1999 established the Federal Motor Carrier Safety Administration as a new operating administration within the Department of Transportation, effective January 1, 2000 (Public Law 106-159, 113 Stat. 1748, December 9, 1999). The Secretary therefore rescinded the motor carrier authority delegated to the Director of the OMCS and redelegated it to the Administrator of the FMCSA (65 FR 220, January 4, 2000). 

The staff previously assigned to the FHWA's OMC, and then to the OMCS, are now assigned to the FMCSA. The motor carrier functions of the FHWA's Resource Centers and Division (i.e., State) Offices have been transferred without change to the FMCSA Resource Centers and FMCSA Division Offices, respectively. For the time being, all phone numbers and addresses are unchanged. Similarly, rulemaking activities begun under the auspices of the FHWA and continued under the OMCS will be completed by the FMCSA. 

## Background 

On December 23, 1993 (58 FR 68220), the FHWA announced it would require motor carriers subject to 49 CFR part 391, later replaced by part 382, to implement and maintain specific controlled substance testing data, and submit an appropriate annual report when requested. All motor carriers must maintain this information. The FHWA randomly selects a sample of motor carriers annually and asks those selected to submit their data. 

On February 15, 1994 (59 FR 7484), the FHWA promulgated new controlled substances and alcohol testing rules in 49 CFR part 382. These rules combined the controlled substances annual report with a similar alcohol rule “violation” annual report. An alcohol rule violation for purposes of the annual report are alcohol concentrations of 0.04 or greater and refusals to submit to alcohol testing. 

On March 13, 1995, the FHWA amended the rule to reduce the information collection burden on all respondents, including small entities (60 FR 13369). 

The current rule at § 382.403, formerly at 49 CFR 391.87(h), is essential for the accomplishment of the following four goals: 

                    1. Collect controlled substance and alcohol testing statistical data.                           ( print page 34247)    

2. Use the data to analyze the FMCSA's current approach to deterring and detecting illegal controlled substance use and alcohol misuse in the motor carrier industry. 

3. Determine each calendar year's random selection rates for alcohol and controlled substance testing under the rule. 

4. Provide for a more efficient and effective regulatory program. 

In 1995, the FHWA requested a sample of motor carriers report to the FHWA data collected in 1994. The FHWA determined the random positive controlled substance usage rate for commercial motor vehicle (CMV) drivers subject to 49 CFR part 391, subpart H, for the period of January 1, 1994, through December 31, 1994, was 2.6 percent. This rate was estimated to be 2.8% in 1995 and 2.2% in 1996. 

Estimates of positive usage rates for alcohol were first produced for calendar year 1995. The alcohol testing “violation” rate was 0.14 percent in 1995, and 0.18 percent in 1996. 

The criteria for raising or lowering the random testing rate are established by regulation. Under 49 CFR 382.305(d)(1), when the minimum annual percentage rate for random alcohol testing is 25 percent or more, the FMCSA Administrator may lower the rate to 10 percent of all driver positions if the Administrator determines that the data received under the reporting requirements of § 382.403 for two consecutive years indicate that the violation rate is less than 0.5 percent. 

Under § 382.305(e)(1), when the minimum annual percentage rate for random alcohol testing is 10 percent, the Administrator is required to increase the rate to 25 percent only if the violation rate is equal to or greater than 0.5 percent. 

Under § 382.305(g), when the minimum annual percentage rate for random controlled substances testing is 50 percent, the Administrator may lower the rate to 25 percent of all driver positions only if the data indicate that the positive testing rate is less than 1.0 percent. 

Based upon this authority, and because the violation rate was below 0.5 percent for two consecutive years, the FHWA announced it was lowering the random alcohol testing rate for calendar year 1998 to 10 percent. The random controlled substances testing rate remained 50 percent. On January 14, 1998 (63 FR 2172) the agency published this policy in a notice including an extensive appendix C explaining the methodology used to estimate the controlled substances positive and alcohol violation rates. 

Today's notice announces the results of data collected for the 1997 and 1998 FHWA Drug and Alcohol Surveys. These surveys, conducted annually, measure the percentage of CDL drivers testing positive for controlled substances (as defined in 49 CFR 40.21 of the Federal Motor Carrier Safety Regulations) and/or alcohol, based on both random and nonrandom testing. The survey data are collected from a random sample of motor carrier annual drug and alcohol testing summaries. Because the positive rate from random controlled substances testing has remained above 1.0 percent during this period, the FMCSA is maintaining the random controlled substance testing rate for calendar year 2000 at 50 percent, in accordance with 49 CFR 382.305(g). The FMCSA is also maintaining the random alcohol testing rate for calendar year 2000 at 10 percent, in accordance with 49 CFR 382.305(e)(1). 

Authority:49 U.S.C 504, 31136, chapter 313; and 49 CFR 1.73. 

Issued on: May 18, 2000. 

Julie Anna Cirillo, 

Acting Deputy Administrator, Federal Motor Carrier Safety Administration. 

[FR Doc. 00-13313 Filed 5-25-00; 8:45 am] 

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