44250 Federal Register / Vol. 62, No. 161 / Wednesday, August 20, 1997 / Proposed Rules

insurance/pension costs in Government

contracts. Insurance/pension specialists

and the Defense Contract Audit Agency

(DCAA) assist ACOs in making these

determinations by conducting CIPRs.

(b) CIPRs can take the following

forms:

(1) Initial CIPR. A comprehensive

review of the contractor’s insurance

program, pension plan, and other

deferred compensation plan. Includes a

detailed review of the contractor’s

policies, procedures, and practices to

determine whether the programs and

plans in compliance with FAR and Cost

Accounting Standards (CAS).

(2) Special CIPR. A review of the

contractor’s insurance program, pension

plan, or other deferred compensation

plan where the review concentrates on

specific significant areas.

(3) Incurred cost CIPR. A review of

costs incurred for insurance, pension, or

other deferred compensation to

determine allowability and compliance

with FAR, CAS, and contract clauses.

(4) Forward pricing CIPR. A review of

costs proposed for insurance, pension,

or other deferred compensation to

determine allowability and compliance

with FAR and CAS.

(c) As the DoD Executive Agency, the

Defense Logistics Agency provides

program management and participates

with DCAA in the performance of all

CIPRs meeting the criteria in 242.7302.

(d) When special reviews of the

contractor’s insurance/pension program

are desired, forward a request to the

ACO. The review should be performed

as part of an ACO-initiated special CIPR

or, if possible, as part of the incurred

cost or forward pricing CIPR if one is

scheduled to be conducted in the near

future.

242.7302 Requirements.

(a) An initial CIPR shall be conducted

within 2 years after a contractor first

exceeds $40 million of annual

qualifying sales to the Government.

Qualifying sales are sales for which

certified cost or pricing data were

required under 10 U.S.C. 2306a, as

implemented in FAR 15.804, or which

are contracts other than firm-fixed-price

or fixed-price with economic price

adjustment. Sales include prime

contracts, subcontracts, and

modifications to such contracts and

subcontracts.

(b) A special CIPR shall be performed

for all contractors (including, but not

limited to, those meeting the

requirements in paragraph (a) of this

section), when any of the following

circumstances exists and it is

anticipated that there may be a

significant impact on Government

contract costs:

(1) Information reveals a deficiency in

the contractor’s insurance/pension

program.

(2) The contractor proposes or

implements changes in the insurance,

pension, or deferred compensation

plans.

(3) The contractor is involved in a

merger, acquisition, or divestiture.

(4) Follow-up on contractor

implementation of prior CIPR

recommendations is needed.

(5) Verification of Government

recovery of credits is needed.

(c) Incurred cost and forward pricing

CIPRs shall be performed when it is

determined that participation of an

insurance/pension specialist is essential

to determine cost allowability.

242.7303 Responsibilities.

(a) The administrative contracting

officer is responsible for—

(1) Determining the need for a CIPR

under 242.7302;

(2) Requesting and scheduling the

reviews with the appropriate Defense

Logistics Agency activity;

(3) Notifying the contractor of the

proposed date and purpose of the

review, and obtaining any preliminary

data needed by the insurance/pension

specialist and DCAA;

(4) Reviewing the CIPR report,

advising the contractor of the results,

and asking the contractor to submit any

significant changes in insurance/

pension plans for review and

acceptance prior to making the change;

(5) Providing other interested

contracting officers copies of documents

related to the CIPR;

(6) Ensuring adequate follow-up on all

CIPR recommendations; and

(7) Performing contract administration

responsibilities related to Cost

Accounting Standards administration as

delineated in FAR subparts 30.2 and

30.6.

(b) The insurance/pension specialist

responsible for—

(1) Preparing and maintaining the

schedule of CIPRs to be performed

during the next 12 months and

providing the military departments and

DCAA a copy of the schedule;

(2) Heading the team that conducts

the review (the team leader). Another

party may be designated as the team

leader when agreed to by both the

insurance/pension specialist and that

party. The team leader is responsible

for—

(i) Maintaining complete

documentation for CIPR reports;

(ii) To the extent possible, resolving

discrepancies between adult reports and

CIPR draft reports prior to releasing the

final CIPR report;

(iii) Preparing and distributing the

final CIPR report;

(iv) Providing the final audit report

and/or the insurance/pension

specialist’s report as an attachment to

the CIPR report; and

(v) Preparing a draft letter for the

administrative contracting officer’s use

in notifying the contractor of CIPR

results; and

(3) When requested, advising

administrative contracting officers and

other Government representatives

concerning contractor insurance/

pension matters.

(c) DCAA is responsible for—

(1) Participating as a member of the

CIPR team;

(2) Submitting information and advice

to the team based on analysis of the

contractor’s books, accounting records,

and other related data;

(3) Issuing an audit report to the

insurance/pension specialist for

incorporation into the final CIPR report;

and

(4) Performing contract audit

responsibilities related to Cost

Accounting Standards administration as

delineated in FAR subparts 30.2 and

30.6.

[FR Doc. 97–21891 Filed 8–19–97; 8:45 am]

BILLING CODE 5000–04–M

DEPARTMENT OF TRANSPORTATION

Research and Special Programs

Administration

49 CFR Part 199

[RSPA Docket PS–128; Amdt. 199–15]

RIN 2137–AC84

Drug and Alcohol Testing; Substance

Abuse Professional Evaluation for

Drug Use

AGENCY: Research and Special Programs

Administration (RSPA), DOT.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Research and Special

Programs Administration proposes to

modify current procedures in its drug

testing regulations governing situations

in which pipeline employees test

positive on a drug test. The proposed

changes would require pipeline

operators to require employees who test

positive for the presence of prohibited

drugs or who refuse to take a required

drug test to be evaluated by a substance

abuse professional (SAP), who could

require an employee to undergo a

rehabilitation program prior to the
Federal Register / Vol. 62, No. 161 / Wednesday, August 20, 1997 / Proposed Rules 44251

employee’s return to duty. The reason

for this change is to conform RSPA’s

drug and alcohol testing regulations

with the drug and alcohol regulations of

the other Department of Transportation

operating administrations. In addition,

RSPA is proposing to define ‘‘covered

employee’’ and ‘‘covered function.’’

Finally, this rule would allow Medical

Review Officers (MROs) who meet the

SAP qualifications to perform the

evaluation of individuals who have had

a verified positive drug test or who have

refused to take a required test.

DATES: Comments should be received by

October 20, 1997. Late-filed comments

will be considered to the extent

practicable.

ADDRESSES: Comments should be sent to

the Dockets Unit, Room 8421, U.S.

Department of Transportation, Research

and Special Programs Administration,

400 Seventh Street, SW., Washington,

DC 20590–0001. Comments should

identify the Docket Number PS–128 and

the RSPA Rulemaking Number 2137–

AC84. Commenters should submit 3

copies. Commenters wishing to receive

confirmation of receipt of their

comments must include a stamped, selfaddressed postcard with their

comments. The docket clerk will date

stamp the postcard and return it to the

commenter. Comments will be available

for inspection and copying in Room

8421 between 8:30 a.m. and 5 p.m. each

business day.

FOR FURTHER INFORMATION CONTACT:

Catrina M. Pavlik, Drug/Alcohol

Program Analyst, Research and Special

Programs Administration, Office of

Pipeline Safety, Room 2335, 400

Seventh Street, SW., Washington, DC

20590. Telephone: (202) 366–6199, Fax:

(202) 366–4566, e-mail:

catrina.pavlik@RSPA.dot.gov.

SUPPLEMENTARY INFORMATION: The

February 15, 1994, publication of the

Department’s common preamble to the

Limitation on Alcohol Use by

Transportation Workers discusses the

requirement for a substance abuse

professional evaluation when an

employee tests positive for alcohol (59

FR 7302). RSPA’s alcohol testing

regulations include a requirement that

pipeline operators use a SAP to evaluate

pipeline employees whose test results

indicate an alcohol concentration of

0.04% or greater, or who fail or refuse

to undergo an alcohol test. These

individuals are required to follow a

rehabilitation program that is prescribed

by the SAP before returning to duty.

Unlike the other modal administrations,

RSPA did not incorporate a similar

requirement on pipeline operators

whose employees tested positive for the

presence of prohibited drugs or refused

to undergo a drug test. Under RSPA’s

drug testing regulations, an employee

who either tests positive for a prohibited

drug or who refuses to take a required

drug test must be interviewed by an

MRO to confirm a positive drug test and

to determine whether there is a

legitimate medical explanation for the

confirmed test or for an employee’s

refusal to be tested. Once confirmed, the

MRO is required to determine when the

employee is eligible to take a return-toduty test. Unlike the alcohol testing

rules, the drug testing rules do not

require employees to follow a

rehabilitation program prescribed by a

SAP. Upon receiving a negative test

result from a return-to-duty test, the

MRO is responsible for establishing an

unannounced follow-up testing

schedule for that employee. This

schedule is not permitted to exceed 60

months.

Because of the desire to conform

RSPA’s drug testing regulations with the

drug testing regulations of the other

modal administrations, RSPA is

proposing to require pipeline operators

to utilize SAPs to evaluate pipeline

employees who have either received a

positive drug test or have refused a drug

test required by RSPA. In addition, the

SAP could require an employee to

complete a rehabilitation program

before being eligible to return to duty.

Conformity among the modes will

assist with overall administration of

RSPA’s drug testing regulations.

Currently 14% of the pipeline

employees subject to RSPA’s drug

testing regulations are also subject to the

drug testing regulations of one or more

of the other DOT modes. According to

the FY95 Management Information

System (MIS) reports there are

approximately 160,906 employees

covered by RSPA’s drug testing

regulations. Of that number, 41 are also

covered by FAA, 26,969 are also

covered by FHWA, 210 are also covered

by FTA, 216 are also covered by USCG

and none are covered by FRA.

Employees presently dual-covered by

another operating administration are

already required to undergo a substance

abuse professional evaluation for a

positive drug test. In addition to

conforming RSPA’s drug rules with the

other modal administrations, this action

would make RSPA’s drug testing rule

consistent with RSPA’s alcohol rule.

RSPA sought informal feedback from

the American Gas Association (AGA)

and the American Petroleum Gas

Association (APGA) on whether this

requirement would have an impact on

pipeline operators. After an informal

survey of several of their members, AGA

and APGA stated that they felt this

requirement would not be a burden to

pipeline operators since those members

are already adhering to this procedure

for activities covered by other DOT

operating administrations.

Requiring a SAP evaluation for a

positive drug test or an employee’s

refusal to test would add an additional

layer of activity to the return-to-duty

role that has up until now involved only

the MRO. If an MRO is certified as a

SAP, he could perform all functions that

would be required under the proposed

regulations. This would entail certifying

a test result as a negative/positive drug

test. If a test is confirmed as positive or

an individual refuses to take a test, the

MRO could perform the SAP evaluation

to determine what treatment, if any, is

needed. Then, the MRO could schedule

the return-to-duty test and follow-up

testing. However if the MRO is not

certified as a SAP, the MRO would

continue to certify a test result but in

the event of a positive test or refusal to

take a test, the MRO would have to refer

the employee to a SAP for evaluation

and treatment. The SAP would consult

with the MRO when scheduling the

return-to-duty test and the follow-up

testing.

RSPA currently defines ‘‘employee’’

in its drug testing regulations as a

person who performs on a pipeline or

Liquefied Natural Gas (LNG) facility an

operating, maintenance, or emergencyresponse function regulated by part 192,

193, or 195. In addition, RSPA has

published guidance material using and

defining the terms ‘‘covered employee’’

and ‘‘covered function.’’ As used in the

guidance, a ‘‘covered employee’’ means

‘‘employee.’’ RSPA proposes to

substitute the word ‘‘employee’’ with

the term ‘‘covered employee’’ in the

definition section of the drug testing

regulations (199.3), and proposes to add

the definition of ‘‘covered function.’’ In

the RSPA alcohol testing regulations

these terms are already defined in

§ 199.205, ‘‘Definitions.’’ RSPA has

determined that there is a need to make

these definitions part of § 199.3 for

clarification purposes and for

consistency between the RSPA drug and

alcohol testing regulations. The

proposed changes would enable

pipeline operators to know the accurate

meaning of these phrases and how they

pertain to the drug and alcohol testing

regulations.

Regulatory Analyses and Notices

Executive Order 12866 and DOT

Regulatory Policies and Procedures

This proposal requires that pipeline

employees who either test positive for
44252 Federal Register / Vol. 62, No. 161 / Wednesday, August 20, 1997 / Proposed Rules

prohibited drugs or refuse to be tested

must be evaluated by a substance abuse

professional (SAP) who could require

that an employee undergo rehabilitation

prior to the employee’s return to duty in

a covered function. The reason for this

rule change is to conform RSPA’s drug

testing program to its alcohol testing

program as well as the drug and alcohol

testing programs of all other DOT

modes.

RSPA concluded that because all

pipeline companies already employ

SAPs for their alcohol testing programs

it is likely the same professional will be

used to perform this same function on

the drug testing program. Further, this

proposal requires that employees who

test positive could be required to

undergo rehabilitation before their

return to duty. RSPA, however, does not

require that the employer pay for this

treatment. Many employees may also be

terminated or placed in non-covered

functions rather than be given the

opportunity for treatment. Therefore,

the cost of the treatment is not the

financial responsibility of the employer.

Another factor that was taken into

account is the fact that the most recent

drug testing results show that only 0.8%

of the employees tested positive for

drugs. Therefore, the number of

employees who would need to be

evaluated by a SAP is minimal. Given

the fact that pipeline companies already

employ or presently contract with SAPs,

they are not required to pay for nor offer

rehabilitation for employees who test

positive, and that a minimal number of

employees would require evaluation,

RSPA believes that this rule will have

little to no economic impact on any

pipeline company. RSPA finds that this

rule is not significant under section 3(f)

of Executive Order 12866 and also not

significant under the Regulatory Policies

and Procedures of the Department of

Transportation.

Executive Order 12612

This regulation would not have

substantial direct effect on states, on the

relationship between the Federal

Government and the states, or on the

distribution of power and

responsibilities among the various

levels of Government. Therefore, in

accordance with Executive Order 12612

(52 FR 41685; October 30, 1987), RSPA

has determined that this regulation

would not have sufficient federalism

implications to warrant preparation of a

federalism assessment.

Regulatory Flexibility Act

Because this rule will require little to

no additional cost to pipeline operators

(see discussion on the regulatory

evaluation) RSPA certifies under section

605 of the Regulatory Flexibility Act (5

U.S.C.) that this rule will not have a

significant economic impact on a

substantial number of small entities.

Paperwork Reduction Act

There are no new information

collection requirements in this rule.

Unfunded Mandates Reform Act of 1995

This rule does not impose unfunded

mandates under the Unfunded

Mandates Reform Act of 1995. It does

not result in costs of $100 million or

more to either State, local, or tribal

governments, in the aggregate, or to the

private sector, and is the least

burdensome alternative that achieves

the objective of the rule.

List of Subjects in 49 CFR Part 199

Drug testing, Pipeline safety.

In consideration of the foregoing

RSPA proposes to amend, 49 CFR part

199 as follows:

PART 199—[AMENDED]

1. The authority citation for part 199

continues to read as follows:

Authority: 49 App. U.S.C. 60101 et seq.; 49

CFR 1.53.

2. Section 199.3 would be amended

by revising the definition of ‘‘employee’’

and adding a new definition of ‘‘covered

function’’ to read as follows:

§ 199.3 Definitions.

* * * * *

Covered employee means a person

who performs on a pipeline or LNG

facility an operations, maintenance, or

emergency-response function regulated

by part 192, 193, or 195 of this chapter.

This does not include clerical, truck

driving, accounting, or other functions

not subject to part 192, 193, or 195 of

this chapter. The person may be

employed by the operator, be a

contractor engaged by the operator, or

be employed by such a contractor.

Covered function means an

operations, maintenance, or emergencyresponse function conducted on the

pipeline or LNG facility that is regulated

by Part 192, 193, or 195.

* * * * *

3. Section 199.11 would be amended

by revising paragraph (e) to read as

follows:

§ 199.11 Drug tests required.

* * * * *

(e) Return to duty testing. A covered

employee who refuses to take or does

not pass a drug test may not return to

duty in the covered function until the

covered employee has been evaluated

by a substance abuse professional, and

has properly followed any prescribed

rehabilitation program. The covered

employee shall be subject to

unannounced follow-up drug tests

administered by the operator following

the covered employee’s return to duty.

The number and frequency of such

follow-up testing shall be determined by

a substance abuse professional, but shall

consist of at least six tests in the first 12

months following the covered

employee’s return to duty. In addition,

follow-up testing may include testing

for alcohol as directed by the substance

abuse professional, to be performed in

accordance with 49 CFR part 40.

Follow-up testing shall not exceed 60

months from the date of the covered

employee’s return to duty. The

substance abuse professional may

terminate the requirement for follow-up

testing at any time after the first six tests

have been administered, if the substance

abuse professional determines that such

testing is no longer necessary.

4. Section 199.15 would be amended

by revising paragraph (d)(2) and adding

new paragraphs (e) and (f) to read as

follows:

§ 199.15 Review of drug testing results.

* * * * *

(d) * * *

(2) If the MRO determines, after

appropriate review, that there is no

legitimate medical explanation for the

confirmed positive test result other than

the unauthorized use of a prohibited

drug, the MRO shall require that the

covered employee who engages in

conduct prohibited under § 199.9 shall

be evaluated by a substance abuse

professional who shall determine what

assistance, if any, the covered employee

needs in resolving problems associated

with illegal drug use.

* * * * *

(e) Evaluation and rehabilitation may

be provided by the operator, by a

substance abuse professional under

contract with the operator, or by a

substance abuse professional not

affiliated with the operator. The choice

of substance abuse professional and

assignment of costs shall be made in

accordance with the operator/employee

agreements and operator/employee

policies.

(f) The operator shall ensure that a

substance abuse professional who

determines that a covered employee

requires assistance in resolving

programs with drug abuse does not refer

the covered employee to the substance

abuse professional’s private practice or

to a person or organization from which

the substance abuse professional

receives remuneration or in which the
Federal Register / Vol. 62, No. 161 / Wednesday, August 20, 1997 / Proposed Rules 44253

substance abuse professional has a

financial interest. This paragraph does

not prohibit a substance abuse

professional from referring a covered

employee for assistance provided

through:

(1) A public agency, such as a State,

county, or municipality;

(2) The operator or a person under

contract to provide treatment for drug

problems on behalf of the operator;

(3) The sole source of therapeutically

appropriate treatment under the

employee’s health insurance program,

or

(4) The sole source of therapeutically

appropriate treatment reasonably

accessible to the employee.

Issued in Washington, DC, on August 13,

1997.

Kelley S. Coyner,

Acting Administrator.

[FR Doc. 97–22048 Filed 8–19–97; 8:45 am]

BILLING CODE 4910–60–P