13248 Rules and Regulations s4

199-19

DEPARTMENT OF TRANS- dards. The primary purpose of this Fi- tices published by other DOT agen- PORTATION nal Rule is to conform RSPA's drug cies. In addition, we joined these other and alcohol testing regulations with agencies and the Office of the Secre- Research and Special Programs DOT's revised procedures on drug and tary in publishing a Common Pream- Administration alcohol testing. A secondary purpose ble that gave an overview of signifi- is to make RSPA's regulations easier cant issues (66 FR 21491; Apr. 30, 49 CFR Part 199 to apply and understand through ap- 2001). propriate changes in format. Agree- [Docket No. RSPA-00-8417; Amdt. ment between RSPA's drug and alco- Disposition of Comments 199-19] hol regulations and DOT's revised procedures is essential to avoid over- This section of the preamble sum- RIN 2137-AD55 lap, conflict, duplication, or confusion marizes the written comments we re- in applying the regulations, and the ceived in response to the NPRM. It Drug and Alcohol Testing for Pipe- format changes support this aim. Be- also describes how we treated those line Facility Employees cause DOT's revised procedures are comments in developing this Final effective August 1, 2001, any delay in Rule. If a proposed section is not AGENCY: Research and Special achieving agreement after publication mentioned, no significant comments Programs Administration (RSPA), of this Final Rule would be contrary were received on that section and we DOT. to the public interest. So we are mak- are adopting it as final. ing this Final Rule effective upon Validity testing and access to in- ACTION: Final rule. publication, rather than 30 days from formation. In a joint comment, the Air now. Because the revised DOT proce- Line Pilots Association and the Trans- dures were published over eight portation Trades Department, AFL- SUMMARY: We are conforming our months ago and RSPA's regulations CIO, expressed concerns about the pipeline facility drug and alcohol test- already incorporate the DOT proce- new requirement in 49 CFR 40.89 that ing regulations with DOT's “Proce- dures by reference, affected parties laboratories must conduct validity dures for Transportation Workplace have had ample time to prepare to im- testing to determine whether certain Drug and Alcohol Testing Programs.” plement the revised procedures to adulterants or foreign substances were In addition, we are changing the for- which this Final Rule refers. added to the urine, if the urine was di- mat of the regulations to make them luted, or if the urine specimen was easier to apply and understand. The Background substituted. In light of this new regu- purpose of these changes is to make lation, these commenters also ques- the regulations clearer and consistent Last year DOT's Office of the tioned the adequacy of Part 40 provi- with DOT's drug and alcohol testing Secretary comprehensively revised its sions concerning release of informa- policies. regulations in 49 CFR Part 40 called tion, and they objected to DOT agen- “Procedures for Transportation Work- cy proposals to delete their separate EFFECTIVE DATE: This Final place Drug and Alcohol Testing Pro- regulations on release of information. Rule takes effect September 11, 2001. grams” (65 FR 79462; Dec. 19, We believe this comment relates to 2000). Through separate regulations across-the-board Part 40 issues that FOR FURTHER INFORMATION published by various DOT operating are beyond the scope of the NPRM. CONTACT: L.M. Furrow by phone administrations, including RSPA, The NPRM did not propose to remove at 202-366-4559, by fax at 202-366- these DOT procedures apply to all the separate Part 199 requirements on 4566, by mail at U.S. Department of employers who must test transporta- release of information. DOT's Office Transportation, 400 Seventh Street, tion personnel for illegal drugs and al- of the Secretary addressed these com- SW., Washington, DC 20590, or by e- cohol. RSPA's separate regulations for menters' concerns in a separate Fed- mail at buck.furrow@ rspa .dot.gov. drug and alcohol testing apply to op- eral Register publication associated erators of gas and hazardous liquid with this Final Rule entitled “Trans- SUPPLEMENTARY INFORMA- pipeline facilities (49 CFR Part 199). portation Workplace Drug and Alco- TION: To conform the Part 199 regula- hol Testing Programs: Response to tions with the revised DOT proce- Comments on Pre-Employment In- Effective Date dures and make other clarifying quiry Requirement; Common Pream- changes to Part 199, we published a ble for DOT Agency Conforming Federal law requires pipeline notice of proposed rulemaking Rules” (66 FR 41955; Aug. 9, 2001). safety standards to take effect 30 days (NPRM) (66 FR 21506; Apr. 30, Follow-up testing. Blair & Burke after publication unless we for good 2001). The NPRM invited interested commented on the different wording cause establish a different effective persons to submit written comments that Part 199 and revised Part 40 use date based on the time reasonably by June 14, 2001. We published the to state the authority of a substance necessary to comply with the stan- NPRM concurrently with similar no- abuse professional (SAP) to terminate

Federal Register / Vol. 66, No. 176 / Tuesday, September 11, 2001 Pages 47114 - 47119 1/8 RSPA-00-8417, Amdt. 199-19 199-19 follow-up testing. Existing §§ emptions, before enrolling persons in not changed existing §199.11(c)(2). 199.111(f) and 199.243(c)(2)( ii) pro- random testing pools. We believe this DATIA also suggested that DOT vide that a SAP may terminate fol- comment relates to across-the-board agencies jointly publish their random low-up testing at any time after the Part 40 issues that are beyond the testing rates. We believe the objective first six tests have been administered. scope of the NPRM. The NPRM did of this comment is being met by In contrast, 49 CFR 40.307(f) states not propose regulations on the matter DOT's Office of Drug and Alcohol that SAPs may modify their determi- DATIA advances in this comment. Policy by publishing each agency's nations concerning follow-up tests but DOT's Office of the Secretary ad- random rate on its Web site not the requirement that the employee dressed this commenter's concern in a (http://www.dot.gov/ost/dapc/main/tes take at least six follow-up tests within separate Federal Register publication trate.htm). the first 12 months after returning to a associated with this Final Rule enti- Stand-down waivers. Regarding safety-sensitive function. As an exam- tled “Transportation Workplace Drug the proposed procedures for seeking ple, §40.307(f) states that if the SAP and Alcohol Testing Programs: Re- stand-down waivers (proposed §199.9 recommends follow-up testing beyond sponse to Comments on Pre-Employ- or new §199.7), Equilon Pipeline the first 12 months, the SAP can ter- ment Inquiry Requirement; Common Company, LLC, asked if we would minate the testing requirement at any Preamble for DOT Agency Conform- consider a waiver request for all cov- time after the first year of testing. ing Rules” (66 FR 41955; Aug. 9, ered employees of a company or just Blair & Burke was concerned that if 2001). specific employees. The proposed an SAP recommends more than six Self-employed individuals. DA- procedures relate to waivers autho- tests in the first 12 months, under TIA suggested that DOT agencies au- rized by 49 CFR 40.21. This regula- §40.307(f) the SAP could not termi- thorize any Consortium/Third-party tion prohibits employers from tempo- nate testing until after the first year of administrator (C/TPA) to determine if rarily removing employees from per- testing, not after the first six tests as a self-employed individual has re- forming safety-sensitive functions §§ 199.111(f) and 199.243(c)(2)( ii) fused to take a drug or alcohol test re- based on an unverified positive drug provide. We think Blair & Burke may quested by the C/TPA. DATIA said test result unless a concerned DOT have mistaken the example in this rule change would bring account- agency waives this restriction. Be- §40.307(f) for the rule. The example ability to the testing process for small cause waiver authority under §40.21 only concerns modification of testing companies. We believe this comment is not limited to particular employees that is to take place after the first 12 relates to across-the-board Part 40 is- or groups of employees, neither are months, but the rule allows modifica- sues that are beyond the scope of the the proposed waiver procedures. So tion of any testing other than the mini- NPRM. The NPRM did not propose we will consider waiver requests on a mum six tests in 12 months. So any regulations on the matter DATIA ad- company-wide basis provided the re- required testing in the first 12 months vances in this comment. DOT's Office quest contains all the information re- beyond the minimum six tests could of the Secretary addressed these com- quired by §40.21 and new §199.7. be terminated under §40.307(f). We menter's concern in a separate Feder- Checking previous test results. do not see any need to change §§ al Register publication associated Under 49 CFR 40.25 employers who 199.111(f) and 199.243(c)(2)( ii) to with this Final Rule entitled “Trans- intend to use a person for a safe- make these rules consistent with portation Workplace Drug and Alco- ty-sensitive function must seek certain §40.307(f). hol Testing Programs: Response to information from former DOT-regu- Affirming pre-employment testing Comments on Pre-Employment In- lated employers about that person's exemptions and tests. Part 199 ex- quiry Requirement; Common Pream- drug and alcohol testing records. The empts an individual from pre-employ- ble for DOT Agency Conforming purpose of proposed new §199.11 was ment drug testing if the individual Rules” (66 FR 41955; Aug. 9, 2001). simply to call operators' attention to participates in an anti-drug program Publishing random testing rate. this new information collection re- that conforms to the requirements of The Common Preamble suggested quirement. However, the Iowa Utili- Part 199 (existing §199.11(a)). To that DOT agencies may consider ties Board (IUB) commented that minimize erroneous exemptions, the adopting a proposal by the Federal §199.11(a) lacked guidance for opera- Drug and Alcohol Testing Industry Motor Carrier Safety Administration tors if an employee does not consent Association (DATIA) suggested that (FMCSA) to publish the random test- to release of information by a former DOT agencies adopt the Federal Mo- ing rate only when the rate changes. employer. IUB was also concerned tor Carrier Safety Administration's At present RSPA publishes the testing that proposed new §199.11(b) would rule (49 CFR 382.301) that requires rate applicable to the pipeline industry require a person who had violated a employers to investigate and docu- annually, as existing §199.11(c)(2) re- DOT agency drug or alcohol rule to ment the validity of such programs. quires. DATIA recommended that we undergo the new employer's return-to- DATIA further suggested that we re- not adopt FMCSA's proposal. We duty process even if that person had quire managers of random testing agree with DATIA that annual publi- successfully completed the previous pools to have written proof of pre-em- cation is an important source of infor- employer's return-to-duty process. ployment tests, or written proof of ex- mation for the industry, and so have Both of these concerns are answered

Federal Register / Vol. 66, No. 176 / Tuesday, September 11, 2001 Pages 47114 - 47119 2/8 RSPA-00-8417, Amdt. 199-19 199-19 by §40.25. Under §40.25(a), if a per- whole need more time to conform Subpart B—Drug Testing and then re- son refuses to provide written con- their plans to revised Part 40 and Part designated as §§ 199.101 through sent, the employer may not permit the 199. Should an individual operator 199.119, respectively. In new Subpart person to perform a safety-sensitive have good reasons for not completing B, we have added new §199.100, Pur- function. And under §§ 40.25(e) and its revisions before revised Part 40 pose, to parallel §199.200, which ex- (j), if an employer learns the person takes effect, RSPA inspection person- plains the purpose of redesignated has violated a DOT agency drug or al- nel will take the reasons into account Subpart C. cohol rule, the employer may not use in evaluating the operator's level of The NPRM proposed to amend the person to perform a safety-sensi- compliance. And we will encourage existing §199.23(b) [or redesignated tive function unless the employer also State authorities who participate in the §199.117(b)] to make this section obtains information that the person Federal pipeline safety program to do consistent with revised Part 40 regula- has successfully completed the return- likewise. tions on releasing name-specific drug to-duty process. Only if that process Additionally, Southwest Gas sug- testing records without the employee's was not successfully completed would gested that as a guideline for prepar- consent in certain legal proceedings the person have to undergo the new ing revised drug and alcohol plans, we and to RSPA and jurisdictional state employer's return-to-duty process. develop model plans similar to the agencies. Although there were no In light of IUB's comments, it ap- ones we developed for the old rules. comments on this proposal, we have pears that proposed §199.11 has the The old model plans Southwest Gas recognized an inconsistency between potential to cause varied applications referred to are posted on the Web at §199.23(b) and the parallel regulation of §40.25. Considering that revised http://ops.dot.gov/pub.htm#pub. for alcohol testing, §199.231(b). The Part 40, including §40.25, will apply These model plans now have limited first sentence of existing and proposed to operators through incorporation by usefulness because we have not yet §199.23(b) reads in part: “Information reference in Part 199, we decided pro- updated them to reflect changes to * * * may be released only upon the posed §199.11 is not necessary and Part 40. Even if the model plans are written consent of the individual. * * dropped it from this Final Rule. not updated in time to help operators *” In contrast, the first sentence of Return-to-duty testing. IUB also before the August 1 deadline, this cir- §199.231(b) states: “A covered em- thought the wording of proposed cumstance would not lessen the duty ployee is entitled, upon written re- §199.105(e) could be clearer. So we of operators to develop and follow request, to obtain copies of any records edited the wording in the final rule. vised alcohol and drug plans. pertaining to the employee's use of al- Drug and alcohol plans. The cohol, including any records pertain- Southwest Gas Corporation asked that Structure and Organization ing to his or her alcohol tests.” While we allow operators at least 6 months §199.231(b) requires operators to pro- to update their written drug and alco- Although there were no com- vide employees access to records of hol plans under §199.7 (redesignated ments on the proposed structural and their alcohol testing upon written re- as §199.101) and §199.202 to con- organizational changes to Part 199, quest, existing and proposed form to the Part 40 and Part 199 revi- we have edited final §§ 199.1 and §199.23(b) only authorize operators to sions. DOT published revised Part 40 199.2. In §199.1, the title is changed provide employees access to drug on December 19, 2000, but delayed from “Scope and compliance” to testing information upon written re- the effective date until August 1, “Scope,” and the text is limited to quest. To make §§ 199.23(b) and 2001, to ease the impact of the transi- stating that Part 199 requires opera- 199.231(b) consistent, in final tion between the old and revised rules. tors of pipeline facilities subject to 49 §199.23(b) we changed “may be re- This delay of more than 6 months CFR Part 192, 193, or 195 to test cov- leased” to “must be released.” Be- gave all covered employers, including ered employees for the presence of cause of this change, the reference to pipeline operators, ample time to di- prohibited drugs and alcohol. As pro- DOT Procedures in proposed gest the rule changes and prepare to posed, the second sentence of the §199.23(b), which was stated as an implement them. Because §§ 199.7 present §199.1(a), concerning the ex- exception, is stated affirmatively in and 199.202 incorporate Part 40 by clusion from Part 199 of master meter the final rule. reference, and the NPRM did not pro- and petroleum gas systems, is clari- pose to change these sections, opera- fied and transferred to new §199.2, Advisory Committee Consideration tors have had notice since December Applicability. In addition, we edited 19, 2000, that they would have to re- and transferred paragraphs (c) and (d) We discussed the highlights of vise their drug and alcohol plans to of §199.1 to this new section because the NPRM with the Technical Pipe- conform to revised Part 40. The these paragraphs also concern the ap- line Safety Standards Committee NPRM simplified this task by advis- plicability of Part 199. (TPSSC) and the Technical Haz- ing operators their plans would no As proposed, the present Subpart ardous Liquid Pipeline Safety Stan- longer have to allow for inconsisten- B on alcohol misuse is redesignated dards Committee (THLPSSC) at a cies between Parts 40 and Part 199. as Subpart C. The present §§ 199.7 meeting in Washington, DC on Febru- So we do not feel that operators as a through 199.25 are designated as new ary 6, 2001 (66 FR 132; Jan. 2, 2001).

Federal Register / Vol. 66, No. 176 / Tuesday, September 11, 2001 Pages 47114 - 47119 3/8 RSPA-00-8417, Amdt. 199-19 199-19

The committees are statutorily man- stand-down, DOT also established a dated advisory committees that advise waiver process in §40.21 to permit RSPA does not consider this rule- us on proposed safety standards and employers, on a case-by-case basis, to making to be a significant regulatory other policies for gas and hazardous request DOT agency approval for a action under Section 3(f) of Executive liquid pipelines. Each committee has specific, well-founded stand-down Order 12866 (58 FR 51735; Oct. 4, an authorized membership of 15 per- plan that effectively protects the inter- 1993). Therefore, the Office of Man- sons, five each representing govern- ests of employees. The purpose of agement and Budget (OMB) has not ment, industry, and the public. Each proposed §199.9 is merely to establish received a copy of this rulemaking to member is qualified to consider the a mechanism to implement the waiver review. RSPA also does not consider technical feasibility, reasonableness, process for pipeline operators. RSPA this rulemaking to be significant un- cost-effectiveness, and practicability does not have authority to change der DOT regulatory policies and proof proposed pipeline safety standards. DOT policy expressed in §40.21. Al- cedures (44 FR 11034: February 26, A transcript of the February 6 meeting though Mr. Thomas is correct that 1979). as well as other material related to the there is no guarantee a waiver appli- committees' consideration of the cation will be successful, we will give The final rules are non-significant NPRM are available in Docket No. each application full and fair consid- because they merely conform Part 199 RSPA-98-4470. eration. to revised Part 40, which has already Following publication of the Mr. Thomas also opposed the had extensive comment and analysis, NPRM, we asked the members of proposal on checking previous test re- and make other clarifying and organi- each committee to review the NPRM sults (proposed new §199.11), as did zational changes to Part 199. The eco- and vote by letter-ballot on whether Ricky Cotton, Director of Pipeline nomic impact of revised Part 40 was the proposed rules are technically fea- Safety, Mississippi Public Service analyzed in connection with the Part sible, reasonable, cost-effective, and Commission, and John Leiss, Geolo- 40 rulemaking, and the final Part 199 practicable. We also sent each mem- gist, Federal Energy Regulatory Com- rules will not have any incremental ber a copy of the Regulatory Evalua- mission. Mr. Thomas and Mr. Cotton economic impact of their own. As to tion we prepared for this Final Rule. considered pre-employment testing the clarifying and organizational Of the TPSSC members who returned alone to be a sufficient standard, and changes not directly related to revised ballots, four voted to approve the pro- they thought requiring operators to Part 40, we assessed the economic im- posed rules and three voted to ap- check testing by previous employers pact of these changes as minimal. A prove the proposed rules with would not be beneficial. In contrast, copy of the Regulatory Evaluation of changes. All THLPSSC members who Mr. Leiss said we should expand the costs and benefits is available in the returned ballots voted to approve the proposed rule to cover current cov- docket for this proceeding. proposed rules and no member com- ered employees and job applicants not mented on the Regulatory Evaluation. previously employed by a DOT regu- Regulatory Flexibility Act The changes recommended by the lated employer. We proposed new TPSSC members are discussed next. §199.11 simply to call operators' at- The final rules are consistent with Eric Thomas, Director of Engi- tention to the new information collec- revised Part 40 and have no incremen- neering, Southern Natural Gas Com- tion requirement in 49 CFR 40.25. tal economic impacts of their own. pany, objected to the stand-down We do not have authority to change Therefore, based on the facts available waiver process under 49 CFR 40.21 DOT policy expressed in §40.25. At about the anticipated impacts of this and proposed §199.9. He said the the same time, we do not think the proposed rulemaking, I certify, pur- ability to remove from covered posi- problem of illegal drug use among suant to Section 605 of the Regulatory tions employees with unverified posi- pipeline workers warrants establishing Flexibility Act (5 U.S.C. 605), that the tive drug tests is imperative for safety, in Part 199 a regulation broader than final rules will not have a significant and the waiver process will overbur- §40.25. impact on a substantial number of den operators without any guarantee Because of maritime industry small entities. waivers will be granted. The preamble concerns, DOT recently opened a 30- to the Part 40 revisions gave the rea- day comment period on §40.25 (66 Paperwork Reduction Act sons DOT established the prohibition FR 32248; June 14, 2001). DOT's against stand down in §40.21: “stand- Office of the Secretary will address All the information collection re- down undercuts the rationale for the comments in a separate Federal quirements of Part 40 have been ana- [medical review officer] review, can Register publication associated with lyzed and approved by OMB. The fi- compromise the confidentiality of test this Final Rule. nal rules will not impose any informa- results, and may result in unfair tion collection requirements that have stigmatization of an employee as a Regulatory Analyses and Notices not already been reviewed in the Part drug user.” (65 FR 79463; Dec. 19, 40 rulemaking. So no further Paper- 2000). However, recognizing the safe- Executive Order 12866 and DOT work Reduction Act review is neces- ty concerns of commenters favoring Policies and Procedures sary.

respond to those problems, we are not 1. The authority citation for part Executive Order 12612 delaying the effectiveness of the re- 199 continues to read as follows: quirements. The final rules will not have a Authority: 49 U.S.C. 5103, substantial direct effect on states, on Unfunded Mandates Reform Act of 60102, 60104, 60108, 60117, and the relationship between the Federal 1995 60118; 49 CFR 1.53. Government and the states, or on the distribution of power and responsibili- The final rules will not impose ties among the various levels of Gov- unfunded mandates under the Un- 2. The heading for subpart A is ernment. Therefore, in accordance funded Mandates Reform Act of revised to read as follows: with Executive Order 12612 (52 FR 1995. The rules will not result in costs 41685; October 30, 1987), we have of $100 million or more to either Subpart A—General determined that the final rules will not state, local, or tribal governments, in have sufficient federalism implica- the aggregate, or to the private sector, 3. Section 199.1, is revised to tions to warrant preparation of a fed- and are the least burdensome alterna- read as follows: eralism assessment. tive that achieves the objective of the rules. Executive Order 13084 §199.1 Scope. National Environmental Policy Act The final rules have been ana- This part requires operators of lyzed in accordance with the princi- We have analyzed the final rules pipeline facilities subject to part 192, ples and criteria contained in Execu- for purposes of the National Environ- 193, or 195 of this chapter to test cov- tive Order 13084, “Consultation and mental Policy Act (42 U.S.C. 4321 et ered employees for the presence of Coordination with Indian Tribal Gov- seq.). Because the rules parallel prohibited drugs and alcohol. ernments.” Because the final rules present requirements of revised Part will not significantly or uniquely af- 40 or involve clarifying or organiza- 4. Section 199.2 is added to read fect the communities of the Indian tional changes, we have determined as follows: tribal governments and will not im- that the rules will not significantly af- pose substantial direct compliance fect the quality of the human environ- costs, the funding and consultation re- ment. §199.2 Applicability. quirements of Executive Order 13084 do not apply. Executive Order 13211 (a) This part applies to pipeline operators only with respect to em- Executive Order 13132 This rulemaking is not a “Signifi- ployees located within the territory of cant energy action” under Executive the United States, including those em- Revised Part 40 has been ana- Order 13211. It is not a significant ployees located within the limits of lyzed in accordance with the princi- regulatory action under Executive Or- the “Outer Continental Shelf “ as that ples and criteria contained in Execu- der 12866 and is not likely to have a term is defined in the Outer Continen- tive Order 13132 (“Federalism”). The significant adverse effect on the sup- tal Shelf Lands Act (43 U.S.C. 1331). final rules have no incremental Feder- ply, distribution, or use of energy. (b) This part does not apply to alism impacts for purposes of Execu- Further, this rulemaking has not been any person for whom compliance with tive Order 13132. So no further analy- designated by the Administrator of the this part would violate the domestic sis is needed for Federalism purposes. Office of Information and Regulatory laws or policies of another country. Affairs as a significant energy action. (c) This part does not apply to Impact on Business Processes and covered functions performed on— Computer Systems List of Subjects in 49 CFR Part 199 (1) Master meter systems, as defined in §191.3 of this chapter; or We do not want to impose new Drug testing, Pipeline safety, Re- (2) Pipeline systems that trans- requirements that would mandate porting and recordkeeping require- port only petroleum gas or petroleum business process changes when the re- ments, Safety, Transportation. gas/air mixtures. sources necessary to implement those 5. In §199.3, the introductory text requirements would otherwise be ap- In consideration of the foregoing, is revised, the definitions of “Covered plied to “Y2K” or related computer we are amending 49 CFR part 199 as employee” and “Refuse to submit” problems. The final rules do not man- follows: are removed, the definitions of “Cov- date business process changes or re- ered function,” “DOT Procedures,” quire modifications to computer sys- PART 199—DRUG AND ALCO- and “Prohibited drug” are revised, and tems. Because the final rules will not HOL TESTING definitions of “Covered employee, affect the ability of organizations to employee, or individual to be tested,”

“Performs a covered function,” and ments of this part and DOT Proce- trator determines that the application “Refuse to submit, refuse, or refuse to dures. Terms and concepts used in contains adequate justification, he or take” are added in alphabetical order, this part have the same meaning as in she grants the waiver. If the Associate to read as follows: DOT Procedures. Violations of DOT Administrator determines that the ap- Procedures with respect to anti-drug plication does not justify granting the and alcohol programs required by this waiver, he or she denies the applica- §199.3 Definitions. part are violations of this part. tion. The Associate Administrator no- tifies each applicant of the decision to As used in this part— 7. Subpart B is redesignated as grant or deny an application. * * * * * subpart C. Covered employee, employee, or 10. New §199.100 is added to individual to be tested means a person 8. Existing §§ 199.7, 199.9, Subpart B to read as follows: who performs a covered function, in- 199.11, 199.13, 199.15, 199.17, cluding persons employed by opera- 199.19, 199.21, 199.23, and 199.25 tors, contractors engaged by opera- are redesignated as §§ 199.101, §199.100 Purpose. tors, and persons employed by such 199.103, 199.105, 199.107, 199.109, contractors. 199.111, 199.113, 199.115, 199.117, The purpose of this subpart is to Covered function means an oper- and 199.119, respectively, in new establish programs designed to help ations, maintenance, or emergency- subpart B, and a subpart B heading is prevent accidents and injuries result- response function regulated by part added to read as follows: ing from the use of prohibited drugs 192, 193, or 195 of this chapter that is by employees who perform covered performed on a pipeline or on an LNG Subpart B—Drug Testing functions for operators of certain facility. pipeline facilities subject to part 192, DOT Procedures means the Pro- 9. New §199.7 is added to sub- 193, or 195 of this chapter. cedures for Transportation Workplace part A to read as follows: 11. In redesignated §199.103, Drug and Alcohol Testing Programs paragraph (a)(1) is amended by re- published by the Office of the Secre- moving the term “§199.15(d)(2)” and tary of Transportation in part 40 of §199.7 Stand-down waivers. adding “DOT Procedures” in its this title. place, and by revising paragraph (b) * * * * * (a) Each operator who seeks a (2) to read as follows: Performs a covered function in- waiver under §40.21 of this title from cludes actually performing, ready to the stand-down restriction must sub- perform, or immediately available to mit an application for waiver in dupli- §199.103 Use of persons who fail or perform a covered function. cate to the Associate Administrator refuse a drug test. * * * * * for Pipeline Safety, Research and Prohibited drug means any of the Special Programs Administration, De- * * * * * following substances specified in partment of Transportation, Washing- (b) * * * Schedule I or Schedule II of the Con- ton, DC 20590. (2) Been considered by the medi- trolled Substances Act (21 U.S.C. (b) Each application must— cal review officer in accordance with 812): marijuana, cocaine, opiates, am- (1) Identify §40.21 of this title as DOT Procedures and been determined phetamines, and phencyclidine (PCP). the rule from which the waiver is by a substance abuse professional to * * * * * sought; have successfully completed required Refuse to submit, refuse, or (2) Explain why the waiver is re- education or treatment; and refuse to take means behavior consis- quested and describe the employees to * * * * * tent with DOT Procedures concerning be covered by the waiver; 12. In redesignated §199.105, refusal to take a drug test or refusal to (3) Contain the information re- paragraph (b) is revised, paragraphs take an alcohol test. quired by §40.21 of this title and any (c)(3) and (c)(4) are amended by re- * * * * * other information or arguments avail- moving the term “§199.25” and able to support the waiver requested; adding “§199.119” in its place wher- 6. Section 199.5 is revised to read and ever the term appears, and paragraph as follows: (4) Unless good cause is shown (e) is revised, to read as follows: in the application, be submitted at least 60 days before the proposed ef- §199.5 DOT procedures. fective date of the waiver. §199.105 Drug tests required. (c) No public hearing or other The anti-drug and alcohol pro- proceeding is held directly on an ap- * * * * * grams required by this part must be plication before its disposition under (b) Post-accident testing. As soon conducted according to the require- this section. If the Associate Adminis- as possible but no later than 32 hours

Federal Register / Vol. 66, No. 176 / Tuesday, September 11, 2001 Pages 47114 - 47119 6/8 RSPA-00-8417, Amdt. 199-19 199-19 after an accident, an operator shall paragraph (b) is amended by remov- 18. Sections 199.203 and 199.205 drug test each employee whose per- ing the term “retest” and adding “ad- are removed and reserved. formance either contributed to the ac- ditional test” in its place, to read as cident or cannot be completely dis- follows: 19. Section 199.207 is redesignat- counted as a contributing factor to the ed as new §199.9 and transferred to accident. An operator may decide not subpart A, and redesignated §199.9 is to test under this paragraph but such a §199.111 Retention of samples and amended by removing the term “sub- decision must be based on the best in- additional testing. part” and adding “part” in its place formation available immediately after wherever the term appears. the accident that the employee's per- (b) If the medical review officer formance could not have contributed (MRO) determines there is no legiti- 20. In §199.209, the existing text to the accident or that, because of the mate medical explanation for a con- is designated as paragraph (a) and time between that performance and firmed positive test result other than new paragraph (b) is added to read as the accident, it is not likely that a drug the unauthorized use of a prohibited follows: test would reveal whether the perfor- drug, and if timely additional testing mance was affected by drug use. is requested by the employee accord- * * * * * ing to DOT Procedures, the split spec- §199.209 Other requirements im- (e) Return-to-duty testing. A cov- imen must be tested. posed by operators. ered employee who refuses to take or * * * * * has a positive drug test may not return * * * * * to duty in the covered function until 15. The first sentence of redesig- (b) Operators may, but are not re- the covered employee has complied nated §199.117(b) is revised to read quired to, conduct pre-employment al- with applicable provisions of DOT as follows: cohol testing under this subpart. Each Procedures concerning substance operator that conducts pre- abuse professionals and the return-to- employment alcohol testing must— duty process. §199.117 Recordkeeping. (1) Conduct a pre-employment * * * * * alcohol test before the first perfor- * * * * * mance of covered functions by every 13. In redesignated §199.109, (b) Information regarding an indi- covered employee (whether a new paragraphs (b), (c), and (d) are revised vidual's drug testing results or rehabil- employee or someone who has trans- to read as follows: itation must be released upon the writ- ferred to a position involving the per- ten consent of the individual and as formance of covered functions); provided by DOT Procedures. * * * (2) Treat all covered employees §199.109 Review of drug testing re- the same for the purpose of pre- sults. employment alcohol testing (i.e., you §199.201 [Removed and Reserved] must not test some covered employees * * * * * and not others); (b) MRO qualifications. Each 16. Section 199.201 is removed (3) Conduct the pre-employment MRO must be a licensed physician and reserved. tests after making a contingent offer who has the qualifications required by of employment or transfer, subject to DOT Procedures. 17. In §199.202, the first sentence the employee passing the pre-employ- (c) MRO duties. The MRO must is revised to read as follows: ment alcohol test; perform functions for the operator as (4) Conduct all pre-employment required by DOT Procedures. alcohol tests using the alcohol testing (d) MRO reports. The MRO must §199.202 Alcohol misuse plan. procedures in DOT Procedures; and report all drug test results to the oper- (5) Not allow any covered em- ator in accordance with DOT Proce- Each operator must maintain and ployee to begin performing covered dures. follow a written alcohol misuse plan functions unless the result of the em- * * * * * that conforms to the requirements of ployee's test indicates an alcohol con- this part and DOT Procedures con- centration of less than 0.04. 14. In redesignated §199.111, the cerning alcohol testing programs. section heading and the first sentence * * * * * of paragraph (b) are revised, the sec- §199.213 [Removed and Reserved] ond sentence of paragraph (b) and paragraph (c) are amended by remov- §§ 199.203, 199.205 [Removed and 21. Section 199.213 is removed ing the term “retesting” and adding Reserved] and reserved. “testing” in its place wherever the term appears, and the last sentence of

§199.225 [Amended]

22. In §199.225, paragraphs (a) (2)(ii) and (b)(4)(ii) are removed and reserved.

23. Section 199.231(g) is revised to read as follows:

§199.231 Access to facilities and records.

* * * * * (g) An operator may disclose information without employee consent as provided by DOT Procedures concerning certain legal proceedings. * * * * *

Issued in Washington, DC, on August 29, 2001.

Edward A. Brigham, Acting Deputy Administrator.

[FR Doc. 01-22581 Filed 9-10-01; 8:45 am]

BILLING CODE 4910-60-P

Federal Register / Vol. 66, No. 176 / Tuesday, September 11, 2001 Pages 47114 - 47119 8/8 RSPA-00-8417, Amdt. 199-19