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Controlled Substances Testing; Removal of Foreign Implementation Date Publication: Federal Register Agency: Federal Highway Administration Byline: Rodney E. Slater Date: 3 January 1995 Subjects: American Government  • Safety • Trucking
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[Federal Register Volume 60, Number 1 (Tuesday, January 3, 1995)]
[Rules and Regulations]
[Pages 54-56]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-32333]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Part 391
RIN 2125-AC50
Controlled Substances Testing; Removal of Foreign Implementation
Date
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Final rule; removal of compliance date.
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SUMMARY: The Federal Highway Administration announces the removal of
the compliance date from regulations governing drug testing of foreign-
based employees of foreign-domiciled motor carriers. On February 15,
1994, the FHWA published a notice of proposed rulemaking which proposed
to begin controlled substances and alcohol testing of foreign-based
employees of foreign-domiciled employers under 49 CFR part 382 on
January 1, 1996. But 49 CFR part 391 requires foreign-based employees
of foreign-domiciled employers to implement controlled substances
testing effective January 2, 1995. The removal of the compliance date
in part 391 is to allow completion of the part 382 rulemaking process
initiated in compliance with the Omnibus Transportation Employee
Testing Act of 1991. Also the delay will allow negotiation with foreign
governments to continue in an orderly and effective fashion.
EFFECTIVE DATE: This rule is effective December 30, 1994.
FOR FURTHER INFORMATION CONTACT: For information regarding program
issues: Mr. Ronald Finn, Office of Motor Carrier Standards, (202) 366-
0647, or 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 Federal holidays.
SUPPLEMENTARY INFORMATION: 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 they are 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.
[[Page 55]]
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 with subpart H of part 391.
Meanwhile, on October 28, 1991, the Omnibus Transportation Employee
Testing Act of 1991 (Omnibus Act) was enacted (Pub. L. 102-143, Title
V). The Omnibus Act requires the Secretary of Transportation to issue
regulations requiring drug and alcohol testing of commercial motor
vehicle drivers. Final rules implementing such testing were published
on February 15, 1994. See 59 FR 7484, 49 CFR part 382. These new rules
institute alcohol testing and will completely replace the current drug
testing rule in subpart H of 49 CFR part 391 by January 1, 1996. After
that time, subpart H of part 391 will no longer be in effect. However,
because Sec. 391.83(c) provides that foreign-based employees of
foreign-domiciled carriers shall be subject to the drug testing rules
in part 391 as of January 2, 1995, foreign motor carriers would be
required to conduct testing for 1995 alone. The FHWA published a notice
of proposed rulemaking (NPRM) on February 15, 1994, which proposed to
require foreign-based motor carriers to conduct both alcohol and
controlled substances testing under the rules in 49 CFR part 382 rather
than requiring foreign-based motor carriers to conduct just controlled
substances testing under the rules in 49 CFR part 391. See 59 FR 7528.
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 * * * consider
applicable laws and regulations of foreign countries.'' 49 U.S.C.
31306(h). Thus, foreign-based drivers are required by the statute to be
covered, but the Secretary is granted the authority to deem the
requirement satisfied by the testing laws of foreign nations or through
international agreements.
On February 15, 1994, the FHWA published an NPRM soliciting
comments on methods for conducting testing of foreign drivers. The FHWA
proposed that the final controlled substances and alcohol testing rule
under 49 CFR part 382 be amended to cover 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 process
aimed at achieving compatibility and reciprocity of testing standards,
the implementation date was chosen to provide the greatest opportunity
for the negotiation process to be completed successfully. However, if
the process were not completed successfully, the requirements of 49 CFR
parts 40 and 382 were proposed to go into effect on January 1, 1996.
The FHWA continues to analyze comments and negotiate with foreign
governments to achieve compatible laws and reciprocity of testing
standards. To permit these discussions to progress in an orderly
fashion, and to allow additional time to work on compatibility and
reciprocity with foreign governments, the FHWA is removing the date on
which foreign-based motor carriers would be subject to the drug testing
rules at 49 CFR part 391.
This final rule removes the date by which testing programs must
commence for persons located outside the territory of the United
States, including foreign-based employees of American companies (or
their foreign subsidiaries). This action does not postpone testing for
any other person, including U.S.-based employees of foreign companies
and their American subsidiaries.
Rulemaking Analyses and Notices
The FHWA finds that further notice and opportunity for comment are
unnecessary under 5 U.S.C. Sec. 553(b)(3)(B) inasmuch as the issue of
when foreign-based employees of foreign-domiciled carriers should be
subject to the FHWA's new alcohol and controlled substances testing
rules at 49 CFR part 382, rather than the current part 391 rules, has
already been the subject of notice-and-comment rulemaking (RIN 2125-
AD11) in a December 15, 1992, advance notice of proposed rulemaking (57
FR 59356) and a February 15, 1994, notice of proposed rulemaking (59 FR
7528). In addition, the FHWA believes that further notice and
opportunity for comment are not required under the regulatory policies
and procedures of the Department of Transportation. In light of the
earlier opportunities to comment on this subject, the FHWA does not
anticipate that providing an additional comment period would result in
the receipt of useful information.
The FHWA also believes that this final rule is exempt from the 30-
day delayed effective date requirement of the Administrative Procedure
Act under 5 U.S.C. Sec. 553(d)(1) because it ``grants or recognizes an
exemption or relieves a restriction.'' If 49 CFR Sec. 391.83(c) were
not amended to remove the compliance date, foreign-based drivers would
be subject to the drug testing rules of 49 CFR part 391 as of January
2, 1995. This action provides that foreign-based drivers will continue
to be excluded from the requirements of 49 CFR part 391, effectively
granting an exemption to the controlled substances testing requirements
in 49 CFR part 391 which would otherwise soon apply to these drivers.
Therefore, the FHWA finds that good cause exists to proceed directly to
a final rule which is effective upon its date of publication.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that this action is neither a significant
regulatory action under Executive Order 12866 nor significant under the
Department of Transportation's regulatory policies and procedures. In
this final rule, the FHWA removes the date on which the drug testing
rules at 49 CFR part 391 would apply to foreign-based employees of
foreign-domiciled carriers, thereby continuing to exempt these
employees from these drug testing rules. It is anticipated that the
economic impact of this rulemaking will not be substantial because, in
removing the compliance date for foreign-based employees of foreign
carriers, the FHWA is not altering existing regulations in such a way
as to either impose or eliminate any economic burden. These employees
are not now subject to the drug testing rules at 49 CFR part 391, and
this action simply maintains their exempt status.
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. This final rule will remove the compliance date by
which foreign-domiciled motor carriers would have been required to test
drivers for the use of controlled substances under 49 CFR part 391. In
removing this compliance date, the FHWA is simply continuing to exempt
these employees from the agency's controlled substances testing
requirements. Therefore, a full regulatory evaluation is not required.
For this reason and under the criteria of the Regulatory Flexibility
Act, the FHWA hereby certifies that this action will not have a
significant economic impact on a substantial number of small entities.
[[Page 56]]
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 final rule does not have sufficient federalism implications to
warrant the preparation of a separate Federalism assessment. This
action removes the requirement that foreign-based motor carriers
conduct controlled substances testing. It does not place any
requirements on the States and thus does not limit the policy-making
discretion of States.
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
This action does not contain a collection of information
requirement for purposes of the Paperwork Reduction Act of 1980, 44
U.S.C. 3501-3520.
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 will 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 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 391
Controlled substances, Driver qualifications, Drug abuse, Drug
testing, Highways and roads, Highway safety, Motor carriers, Motor
vehicle safety, Reporting and recordkeeping requirements, Safety,
Transportation.
Issued on: December 29, 1994.
Rodney E. Slater,
Federal Highway Administrator.
In consideration of the foregoing, the FHWA is amending title 49,
Code of Federal Regulation, subtitle B, chapter III, part 391 as set
forth below:
PART 391--QUALIFICATION OF DRIVERS
1. The authority citation for part 391 continues to read as
follows:
Authority: 49 U.S.C. 504, 31136, and 31502; and 49 CFR 1.48.
Subpart H--Controlled Substances Testing
2. In Sec. 391.83, paragraph (c) is revised to read as follows:
Sec. 391.83 Applicability.
* * * * *
(c) This subpart is not applicable with respect to any foreign-
based employee of a foreign-domiciled motor carrier.
[FR Doc. 94-32333 Filed 12-30-94; 8:45 am]
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