[Federal Register Volume 62, Number 161 (Wednesday, August 20, 1997)]
[Proposed Rules]
[Pages 44250-44253]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22048]


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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.

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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

[[Page 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, self-addressed 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: 
<a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="62010316100b0c034c1203140e0b0922303132234c060d164c050d144c">[email protected]</a>

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-to-duty 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 emergency-response 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 Sec. 199.205, ``Definitions.'' RSPA has 
determined that there is a need to make these definitions part of 
Sec. 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

[[Page 44252]]

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:


Sec. 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 emergency-
response 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:


Sec. 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:


Sec. 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 Sec. 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

[[Page 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


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