[Federal Register Volume 59, Number 31 (Tuesday, February 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2034]


[[Page Unknown]]

[Federal Register: February 15, 1994]


_______________________________________________________________________

Part V





Department of Transportation





_______________________________________________________________________



Research and Special Programs Administration



_______________________________________________________________________



49 CFR Part 199




Alcohol Misuse Prevention Program; Rule
DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 199

[Docket No. PS-128, Amdt. No. 199-9]
RIN 2137-AC21

 
Alcohol Misuse Prevention Program

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule sets forth regulations requiring operators of 
gas, hazardous liquid and carbon dioxide pipelines and liquefied 
natural gas (LNG) facilities subject to the pipeline safety regulations 
to implement alcohol misuse prevention programs for employees who 
perform safety-sensitive functions. This final rule is consistent with 
the alcohol rules of other operating administrations (OAs) published 
elsewhere in today's Federal Register, except that RSPA is not 
requiring pre-employment or random testing. The final rule requires 
only post-accident, reasonable suspicion, return-to-duty, and follow-up 
testing. This rule requires operators to remove from safety-sensitive 
functions employees who engage in prohibited alcohol conduct, and not 
permit them to return to those functions until specific requirements 
are met. Operators must provide covered employees with written 
materials that specifically identify the employees covered by the rule, 
explain the requirements of the rule, and establish the consequences of 
engaging in prohibited conduct. Operators must maintain records 
concerning their programs and report data regarding employee alcohol 
misuse to RSPA annually. The rules are intended to ensure an alcohol-
free workplace, and increase the overall safety of pipeline operations.

EFFECTIVE DATE: This rule is effective March 17, 1994.

FOR FURTHER INFORMATION CONTACT: Mr. Richard L. Rippert, Office of 
Pipeline Safety Compliance, RSPA, DOT, 400 Seventh Street, SW., 
Washington, DC 20590-0001 (202 366-6223); or the RSPA Dockets Unit, 
(202) 366-4453, for copies of this final rule or other material in the 
docket.

SUPPLEMENTARY INFORMATION:

Background

    On December 15, 1992, RSPA published a notice of proposed 
rulemaking (NPRM) (57 FR 59712) to require pipeline operators of gas, 
hazardous liquid and carbon dioxide pipelines and liquefied natural gas 
(LNG) facilities, who are subject to 49 CFR part 192, 193, or 195, to 
implement alcohol misuse prevention programs for employees who perform 
certain covered functions. The NPRM proposed to exempt from the alcohol 
rules operators of ``master meter systems'' and ``liquefied petroleum 
gas'' (LPG) operators.
    The comment period on the NPRM closed on April 14, 1993, and all 
comments received were considered, including the testimony of 16 
individuals who presented statements at the three public hearings held 
on February 26, 1993, in Washington, DC; on March 2, 1993, in Chicago, 
Illinois; and on March 5, 1993, in San Francisco, California. RSPA 
received written comments from 108 persons including 75 pipeline 
operators, eight pipeline industry associations, seven individuals, 
five labor unions, four state agencies, three contractors, two 
consortiums, two vendors, one law firm and one Federal agency. All 
written comments, as well as the hearing transcripts and any statements 
or other materials submitted at the hearings, have been placed in the 
docket.

OST Common Preamble

    As part of the DOT-wide alcohol misuse prevention rulemaking effort 
DOT issued a common preamble to all of the related NPRMs that were 
published on December 15, 1993 (57 FR 59382, et seq.). The common 
preamble precedes this document in today's Federal Register and should 
be read first to ensure a complete understanding of today's substantive 
final rule. This common preamble contains a thorough discussion of the 
comments submitted to the DOT alcohol docket and responds to comments 
submitted to the various DOT agency dockets that raised multimodal 
aspects of the final rules or the Act.

Discussion of Comments

Authority for RSPA Regulation of Alcohol Misuse.

    The majority of the commenters strongly objected to the mandatory 
imposition of alcohol misuse regulations, as proposed for the pipeline 
industry. They contended that: (1) Alcohol testing of pipeline 
operators is not required under the provisions of the Omnibus 
Transportation Employee Testing Act of 1991 (Omnibus Act); (2) the 
pipeline industry has an excellent safety record; (3) RSPA lacks a 
factual basis or statistical data that would support a finding of any 
alcohol-related pipeline accidents; and (4) the proposed alcohol 
regulations would violate the Fourth Amendment of the Constitution. 
However, some commenters expressed support for inclusion of a limited 
alcohol testing program consisting of post-accident and reasonable 
suspicion testing elements and support for development of a ``pilot or 
demonstration'' alcohol program to be conducted by RSPA and various 
pipeline industry associations. The pilot program would be implemented 
by operators to develop statistical data which would support the need 
for an extensive alcohol testing program or data that would indicate 
implementation of a limited alcohol misuse prevention program was more 
feasible for the entire industry.
    Most commenters opposed the proposed alcohol program, or suggested 
modifications to tailor the program to the needs of the pipeline 
industry. Several commenters noted that the pipeline industry is not 
covered by the Omnibus Act. Commenters stated that there is no 
indication that there is an alcohol problem in the pipeline industry, 
and thus there is no justification for imposing Federal regulation. 
Commenters also stated that pipelines pose different safety risks than 
other forms of public transportation because they do not carry 
passengers.
    RSPA Response. RSPA is today issuing a final rule on alcohol 
testing based on its own existing statutory authority to promote safety 
and to ensure general application of DOT's alcohol misuse regulations 
to all employees performing safety-sensitive functions in the 
transportation industries. The two statutes under which RSPA 
administers the pipeline safety program are the Natural Gas Pipeline 
Safety Act of 1968, as amended (49 App. U.S.C. 1671 et seq.) and the 
Hazardous Liquid Pipeline Safety Act of 1979, as amended (49 App. 
U.S.C. 2001 et seq.). The broad safety authority in these statutes is 
applicable to various aspects of pipeline facilities, including 
``design, installation, inspection, emergency plans and procedures, 
testing, construction, extension, operation, replacement, and 
maintenance of pipeline facilities.'' 49 App. U.S.C. 1672 and 2002. 
Under this authority, RSPA can promulgate regulations where those 
regulations would enhance pipeline safety.
    The lack of data cited by some commenters could be the result of a 
lack of testing and industry alcohol prevention programs rather than 
the absence of an alcohol problem in the pipeline industry. Alcohol 
misuse is a problem in society generally, and it is reasonable to 
expect that the pipeline industry is not immune to the problem of 
alcohol misuse. As noted in the preamble to the NPRM, RSPA's drug rule 
was upheld even though there was no evidence of a particularized drug 
problem in the pipeline industry. International Brotherhood of 
Electrical Workers v. Skinner, 913 F.2d 1454 (9th Cir. 1990). Pipeline 
safety is very important, and operator error can contribute to 
accidents and incidents involving release of hazardous materials. 
Although pipelines do not carry people, they do transport very 
dangerous materials that, if released, can pose a serious threat to 
public safety, property, and the environment. Therefore, for safety 
reasons, we have decided to issue this final rule. Although the 
pipeline industry is not covered by the Omnibus Act, in order to 
provide a margin of safety in the pipeline industry, this final rule 
establishes a limited alcohol misuse prevention program. This program 
includes education, training, prohibitions on certain alcohol-related 
conduct, and post-accident, reasonable suspicion, return-to-duty, and 
follow-up testing. To balance our safety concerns with the cost to 
industry and the lack of evidence of a pipeline alcohol problem, we are 
not requiring random or pre-employment testing. With the exception of 
those two types of testing, this final rule is generally consistent 
with the rules of the other OAs. Such other alterations as are 
necessary to meet the special circumstances of the pipeline industry 
have been incorporated into the final rule. We will monitor the data we 
receive from post-accident and reasonable cause tests to determine if 
further action is warranted. This final rule will ensure that pipeline 
employees are subject to the same alcohol prohibitions, consequences, 
and educational efforts that apply to other transportation workers. 
Pipeline operators may conduct other types of alcohol testing if they 
have independent authority to do so.
    Constitutional issues and comments on issues common to all of the 
OAs are addressed in detail in the common preamble to the OA alcohol 
rules, published elsewhere in today's Federal Register.
    Applicability and Scope. Several commenters, including the American 
Gas Association, opposed application of the proposed rule to natural 
gas transmission and distribution companies. Some commenters indicated 
that the definition of ``safety-sensitive function'' and ``performing a 
safety-sensitive function'' are too broad and unclear. Other commenters 
stated that the definition of ``covered employee'' should include only 
persons actually employed by an operator, and should not include 
applicants for employment. Some operators indicated that RSPA should 
clarify if the alcohol testing regulations are to be a free-standing 
program separate and distinct from the drug testing program or whether 
alcohol testing could be integrated with the existing drug testing 
program. They also pointed out that having different alcohol 
regulations for each of the OAs may create an administrative burden in 
complying with the various final rules.
    RSPA Response. The NPRM proposed to include essentially the same 
classes of operators and covered functions as are subject to the anti-
drug rule. This rule is adopting as final the NPRM proposal that 
operators of gas, hazardous liquid and carbon dioxide pipelines, and 
LNG facilities, who are subject to 49 CFR part 192, 193, or 195, 
implement alcohol misuse prevention programs for covered employees who 
perform certain functions covered by the pipeline safety regulations. 
Persons who perform regulated operation, maintenance, and emergency 
response functions for operators of these pipelines and facilities 
directly affect transportation safety. The final rule does not apply, 
however, to operators of master meter systems or LPG operators. The 
terms ``covered functions'' and ``safety-sensitive functions'' as used 
here and in the common preamble are synonymous and refer to the 
performance of an operation, maintenance, or emergency-response 
function performed on a pipeline or an LNG facility. The term ``safety-
sensitive function'' is used in the Omnibus Transportation Employee 
Testing Act to describe functions which employees perform.
    Operators may combine their RSPA drug and alcohol programs. This 
final rule is consistent with the other OA rules in order to minimize, 
to the extent possible, any compliance burden for operators subject to 
the rules of more than one OA. Because RSPA is not imposing pre-
employment testing, the definition of a ``covered employee'' does not 
include an applicant for employment.
    In the NPRM, RSPA solicited comment on five issues regarding 
implementation of the proposed alcohol regulations. The questions and 
comments are summarized below:
    1. Are there covered functions the performance of which appears to 
sufficiently implicate safety to warrant regulating alcohol-related 
conduct and imposition of a testing requirement?
    Several commenters indicated support for requiring only post-
accident and reasonable suspicion testing to be mandated by RSPA. Many 
commenters indicated that pre-employment, random, and return-to-duty 
were costly and unnecessary as proposed in the NPRM. The commenters 
supported the current definition of ``employee'' in the drug testing 
regulations, and stated that the definition should not be expanded. 
RSPA agrees that the proposed definition of ``employee'' is adequate 
and has not expanded it. As discussed above, the final rule does not 
require either pre-employment or random testing.
    2. Do pipeline operators have any data on the size of the 
population that would be affected and the incidence of alcohol misuse 
by this population?
    Many operators stated they currently have company-mandated alcohol 
testing policies in place. These provisions cover testing in post-
accident and reasonable suspicion situations. Some commenters indicated 
zero incidence of alcohol misuse. During the development of the drug 
testing regulations, many commenters suggested that RSPA include 
alcohol testing as a tested substance in any required testing program. 
They also pointed out that alcohol is probably the substance most 
abused by the public. As discussed above, the lack of data in the 
pipeline industry does not mean that there is not a problem with 
alcohol misuse. Therefore, RSPA is requiring a limited alcohol misuse 
program for the pipeline industry.
    3. What additional costs would be incurred by inclusion of other 
functions and what would be the offsetting benefits (e.g., in terms of 
accident prevention, productivity, employee lost time)?
    Many commenters agreed that increasing the scope of covered 
employees, especially if random testing were implemented, would 
substantially increase the costs associated with the regulations. 
Administrative costs and employee lost time would be increased. 
Furthermore, inconsistencies develop if alcohol regulations are 
implemented and differences in scope of coverage between the drug and 
alcohol testing programs were to occur. This would lead to drug and 
alcohol testing programs covering different employees. Therefore, the 
final alcohol rule applies to the same covered functions as the drug 
rule.
    4. Does the industry or public have any information on alcohol-
related accidents?
    Many commenters argued that RSPA, DOT and the National 
Transportation Safety Board (NTSB) have no statistical data to support 
alcohol-related accidents. Some commenters believe that in the absence 
of a comprehensive factual analysis, it is unreasonable to conclude 
that all the proposed types of federally-mandated alcohol testing 
should be required in the pipeline industry. As discussed above, RSPA 
has carefully evaluated all facets of the alcohol testing regulations 
including the required types of testing, categories of covered 
employees, costs associated with implementation of a testing program 
and the societal benefits. RSPA has determined that implementation of a 
limited alcohol testing program is appropriate.
    5. Are there other ways that RSPA could reduce the burden on small 
operators?
    Many commenters believe that a limited program such as post-
accident and reasonable suspicion testing could be effectively 
implemented and would not adversely affect the numerous small gas 
operators. They suggested that allowing the use of non-evidential 
breath testing devices for screening would lower the overall costs of 
the entire program. Several commenters suggested that operators with 
less than 50 employees be excluded from the requirements of alcohol 
testing. To reduce the burden on small entities, the final rule exempts 
master meter operators and LPG operators. For all other operators, the 
final rule eliminates the requirement for random and pre-employment 
testing. In addition, RSPA has determined that small operators (50 or 
fewer covered employees) should be excluded from the annual submission 
of an alcohol MIS report to lessen the burden. RSPA will periodically 
conduct a sampling of the small operators alcohol programs. Discussion 
of alternatives for testing methods devices is contained in the common 
preamble published elsewhere in today's Federal Register. Although DOT 
is not permitting the use of non-evidential breath testing devices, the 
final rule permits the use for screening of certain evidential devices 
that are less costly and in the future will allow use of other devices 
(for screening) that we approve as meeting DOT criteria.

Reasonable Suspicion Testing

    Many commenters indicated they were frustrated by use of the phrase 
``reasonable suspicion'' for alcohol testing when the term ``reasonable 
cause'' is used in the drug testing regulations. Some commenters 
supported the NPRM proposal that a supervisor who makes the 
determination that reasonable suspicion exists to test a covered 
employee shall not conduct the breath alcohol test on that employee, if 
another supervisor is readily available. Other commenters indicated 
that alcohol testing should not be conducted by supervisors, but should 
be handled by the operator's contract collectors.
    RSPA Response. RSPA considers the two terms to be synonymous. The 
term ``reasonable suspicion'' is used in the Omnibus Act, and for 
consistency with other OA alcohol rules, this final rule uses the term 
``reasonable suspicion.'' RSPA will consider amending the drug rules to 
adopt the same terminology. RSPA is concerned about the potential for 
abuse and harassment of an employee, if the same supervisor who makes 
the determination that reasonable suspicion exists also conducts the 
breath test on the employee. Therefore, RSPA has revised this provision 
to stipulate that the supervisor who makes the determination that 
reasonable suspicion exists shall not conduct the breath alcohol test 
on that employee.

Pre-Duty Use

     The NPRM proposed to require each operator to prohibit a covered 
employee from using alcohol within four hours prior to performing 
safety-sensitive functions. The final rule adopts an amended provision 
that prohibits using alcohol within four hours prior to performing 
covered functions, or within the period of time after an employee has 
been notified to report to duty to respond to an emergency. In the 
pipeline industry, an operator commonly has only a limited number of 
employees or a single employee qualified and available to respond in an 
emergency situation. In such a case, an employee may be in an 
unofficial ``on-call'' status. For example, an employee who finished 
work for the day and returned home, had a beer at 6 p.m., and was 
called at 8 p.m. to respond to an emergency, would be prohibited from 
using alcohol from 8 p.m. until completion of the safety-sensitive 
duties. This provision is intended to be used only for emergency 
situations where an operator has no other recourse. Even in an 
emergency situation, however, if an operator notifies an employee to 
report, and the operator believes the employee cannot perform because 
he or she is impaired by alcohol, the operator should not permit the 
employee to perform safety-sensitive functions.

Alcohol Plans

    The NPRM proposed to require operators to develop, maintain, and 
follow a written alcohol misuse prevention plan. This type of plan 
proved beneficial in assisting the industry in establishing anti-drug 
testing programs and educating the industry about the requirements of 
the drug rule. RSPA requested operators to provide specific comments on 
whether a model drug and alcohol plan would be beneficial to employers 
to standardize the requirements of the rules and assist in compliance 
issues. A number of commenters were in favor of RSPA developing 
guidance material for use by operators. Commenters stated that guidance 
materials would aid the operators in the development of a written 
alcohol misuse prevention plan addressing the requirements contained in 
the RSPA final rule and part 40. Commenters, however, indicated that 
such guidance material should not be used as an enforcement tool in 
limiting an operator's plan to the same language contained in the 
guidance materials.
    RSPA Response. RSPA is developing guidance materials for operators, 
to assist them in implementing alcohol misuse prevention plans, that we 
plan to publish prior to implementation of the regulations. The 
guidance materials could be used by operators and contractors that 
provide services to operators subject to the regulations. RSPA does not 
intend for the guidance materials to limit an operator's ability to 
provide more detail for its employees. The guidance material for 
alcohol would be added to the existing drug testing guidance material 
for ease of reference.

Management Information System (MIS) Report

    The NPRM proposed to require operators to report alcohol 
statistical information, as an essential tool for monitoring compliance 
with the rule. Many commenters were opposed to one or more of the 
reporting elements proposed in the NPRM. Comments submitted by Exxon 
and the Interstate Natural Gas Association of America addressed several 
areas of the form that they contended would present an undue burden in 
the collection and reporting of data. These comments included 
objections to the data on employee categories; dual coverage and 
reporting for employees covered by other DOT agencies; and the 
requirement to submit annual reports no later than February 15th. Some 
operators objected to the size and complexity of the report format and 
the numerous detailed instructions required to complete the form. One 
consortium indicated that costs of designing software and integrating 
this type of informational software into the current drug management 
programs would be immense. Another consortium, which represents 
numerous small operators and municipalities, suggested that consortia 
should be allowed to report on behalf of the companies they serve, thus 
reducing the paperwork required. Many operators provided suggested 
changes and modifications to reduce the recordkeeping and reporting 
burden.
    RSPA Response. This final rule requires the submission of annual 
statistical data on each operator's alcohol misuse prevention program. 
To reduce the burden on small operators (those with 50 or fewer covered 
employees), those operators are not required to submit annual reports. 
Small operators are required to keep records and submit to RSPA, upon 
written request, reports on their alcohol programs. To reduce the 
reporting burden on operators who have no verified positive test 
results, RSPA has limited the information to be provided and has 
developed a simplified ``EZ Form'' for submitting their reports. In 
addition, operators are not required to report alcohol testing data for 
contractors and their employees. Operators, however, are required to 
keep records on contractor data and make the records available for 
inspection. To simplify reporting, RSPA has eliminated the requirement 
to report data on covered employees by function. RSPA has incorporated 
these amendments into the final alcohol MIS report forms, which appear 
as exhibits A and B immediately following the rule text in this Federal 
Register. RSPA has determined that while the alcohol testing data 
elements are properly a matter of regulation, the format in which the 
data are reported should remain within the discretion of the 
Administrator. This will enable RSPA to make any revisions to the 
format that become necessary without undertaking additional rulemaking. 
Because RSPA does not have regulatory authority over consortia, the 
final rule requires operators to submit MIS reports. An operator may 
make arrangements with a consortium to provide data to the operator in 
whatever format the operator desires, but the responsibility for 
submitting drug and alcohol MIS reports to RSPA remains with the 
operator.

Contractor Compliance

    The NPRM proposed that contractor employees should be included in 
the group of employees that must undergo alcohol misuse testing because 
their job performance is no less critical than the performance of 
employees who work directly for operators. RSPA proposed limiting the 
employees, including contractors, covered by the alcohol misuse rule to 
those who perform operation, maintenance, or emergency-response 
functions, on the pipeline or LNG facility, that are regulated under 
part 192, 193, or 195. Seven commenters indicated that RSPA should 
exclude contractor employees from the definition of ``employee.'' Some 
commenters suggested that RSPA should be responsible for ensuring that 
contractor employees are in compliance with parts 40 and 199.
    RSPA Response. RSPA believes that contractor employees must be 
included in the group of employees subject to the alcohol misuse 
provisions. The performance of safety-sensitive functions by contract 
employees is no less critical than the performance of the employees who 
work directly for operators.

Advisory Committee Reviews

    Section 4(b) of the Natural Gas Pipeline Safety Act of 1968, as 
amended (49 U.S.C. 1673(b)), and section 204(b) of the Hazardous Liquid 
Pipeline Safety Act of 1979, as amended (Pub. L. 97-468, January 14, 
1983), each provide that proposed amendments to safety standards 
established under the statutes be submitted to the pipeline advisory 
committees for consideration. Of the 14 ballots received, 12 were in 
favor of implementing an alcohol misuse prevention program and 2 were 
opposed. The advisory members comments indicate they are generally in 
favor of an alcohol testing prevention program for the pipeline 
industry which has limited testing provisions (post-accident and 
reasonable suspicion) such as those discussed in this final rule.
    In January 1993, copies of the NPRM were mailed to each member of 
the Technical Pipeline Safety Standards Committee and the Technical 
Hazardous Liquid Pipeline Safety Standards Committee. On November 29, 
1993, RSPA mailed additional copies of the NPRM to each member, and 
requested that the committees vote by mail on the proposals in the 
NPRM, and provide any additional comments.

Regulatory Analyses and Notices

E.O. 12866 and DOT Regulatory Policies and Procedures

    The final rule is a significant regulatory action under Executive 
Order 12866, and has been reviewed under that order. It is significant 
under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 
1979) because it is of substantial public interest. A regulatory 
evaluation is available for review in the docket. RSPA has evaluated 
the industry-wide costs and benefits relating to the implementation of 
the alcohol misuse prevention program for pipeline operators. RSPA has 
calculated the total cost of this program for the first year to be 
$1,876,270. The exclusion of pre-employment and random testing from the 
final rule has provided a substantial reduction in the total cost of 
the alcohol program. We have projected yearly program costs of 
$186,407, with a slight increase every third year to allow for major 
equipment overhaul which would project a total program cost of 
$258,907. The total 10-year program costs are estimated to be 
$3,806,745. The total 10-year discounted costs are projected to be 
$3,270,684 (uses net present value at 7%).
    RSPA believes that major cost benefits will accrue from this rule, 
including the prevention of potential injuries, fatalities and property 
losses resulting from accidents attributed to alcohol misuse, and 
improved worker productivity and estimates the savings to be 
$15,344,000.

Paperwork Reduction Act

    The final rule sets forth new alcohol misuse prevention program 
requirements and includes information collection requirements subject 
to the Paperwork Reduction Act. These requirements have been submitted 
to the Office of Management and Budget (OMB) for approval under the 
Paperwork Reduction Act of 1980 (44 U.S.C. Chapter 35) and 5 CFR Part 
1320. Information collection requirements are not effective until 
Paperwork Reduction Act clearance has been received.

Regulatory Flexibility Act

    The final rule affects all entities subject to part 192, 193, or 
195, except operators of master meter systems and liquefied petroleum 
gas (LPG) operators, which are exempt. Master meter systems and LPG 
operators constitute the bulk of small businesses or other small 
entities that operate gas pipeline systems subject to part 192. There 
are few, if any, small entities that operate hazardous liquid or carbon 
dioxide pipelines subject to part 195, or LNG facilities subject to 
part 193. Therefore, I certify under section 605 of the Regulatory 
Flexibility Act (5 U.S.C.) that this final rule will not have a 
significant economic impact on a substantial number of small entities.

Executive Order 12612

    This regulation will not have substantial direct effects 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 does not have sufficient federalism implications to warrant 
preparation of a Federalism Assessment.

List of Subjects in 49 CFR Part 199

    Alcohol testing, Drug testing, Pipeline safety, Recordkeeping and 
reporting.
    In consideration of the foregoing, RSPA is amending 49 CFR part 199 
as follows:
    1. The title for part 199 is revised to read as follows:

PART 199--DRUG AND ALCOHOL TESTING

    2. The authority citation for part 199 continues to read as 
follows:

    Authority: 49 App. U.S.C. 1672, 1674a, 1681, 1804, 1808, and 
2002; 49 CFR 1.53.

    3. Sections 199.1 through 199.25 are designated as subpart A, and 
subpart B is added to read as follows:

Subpart B--Alcohol Misuse Prevention Program

Sec.
199.200  Purpose.
199.201  Applicability.
199.202  Alcohol misuse plan.
199.203  Alcohol testing procedures.
199.205  Definitions.
199.207  Preemption of State and local laws.
199.209  Other requirements imposed by operators.
199.211  Requirement for notice.
199.213  Starting date for alcohol testing programs.
199.215  Alcohol concentration.
199.217  On-duty use.
199.219  Pre-duty use.
199.221  Use following an accident.
199.223  Refusal to submit to a required alcohol test.
199.225  Alcohol tests required.
199.227  Retention of records.
199.229  Reporting of alcohol testing results.
199.231  Access to facilities and records.
199.233  Removal from covered function.
199.235  Required evaluation and testing.
199.237  Other alcohol-related conduct.
199.239  Operator obligation to promulgate a policy on the misuse of 
alcohol.
199.241  Training for supervisors.
199.243  Referral, evaluation, and treatment.
199.245  Contractor employees.

Subpart B--Alcohol Misuse Prevention Program


Sec. 199.200  Purpose.

    The purpose of this subpart is to establish programs designed to 
help prevent accidents and injuries resulting from the misuse of 
alcohol by employees who perform covered functions for operators of 
certain pipeline facilities subject to parts 192, 193, or 195 of this 
chapter.


Sec. 199.201  Applicability.

    This subpart applies to gas, hazardous liquid and carbon dioxide 
pipeline operators and liquefied natural gas operators subject to parts 
192, 193, or 195 of this chapter. However, this subpart does not apply 
to operators of master meter systems defined in Sec. 191.3 or liquefied 
petroleum gas (LPG) operators as discussed in Sec. 192.11 of this 
chapter.


Sec. 199.202  Alcohol misuse plan.

    Each operator shall maintain and follow a written alcohol misuse 
plan that conforms to the requirements of this subpart and the DOT 
procedures in part 40 of this title. The plan shall contain methods and 
procedures for compliance with all the requirements of this subpart, 
including required testing, recordkeeping, reporting, education and 
training elements.


Sec. 199.203  Alcohol testing procedures.

    Each operator shall ensure that all alcohol testing conducted under 
this subpart complies with the procedures set forth in part 40 of this 
title. The provisions of 49 CFR part 40 that address alcohol testing 
are made applicable to operators by this subpart.


Sec. 199.205  Definitions.

    As used in this subpart:
    Accident means an incident reportable under part 191 of this 
chapter involving gas pipeline facilities or LNG facilities, or an 
accident reportable under part 195 of this chapter involving hazardous 
liquid or carbon dioxide pipeline facilities.
    Administrator means the Administrator of the Research and Special 
Programs Administration (RSPA), or any person who has been delegated 
authority in the matter concerned.
    Alcohol means the intoxicating agent in beverage alcohol, ethyl 
alcohol or other low molecular weight alcohols including methyl or 
isopropyl alcohol.
    Alcohol concentration (or content) means the alcohol in a volume of 
breath expressed in terms of grams of alcohol per 210 liters of breath 
as indicated by an evidential breath test under this subpart.
    Alcohol use means the consumption of any beverage, mixture, or 
preparation, including any medication, containing alcohol.
    Confirmation test means a second test, following a screening test 
with a result 0.02 or greater, that provides quantitative data of 
alcohol concentration.
    Consortium means an entity, including a group or association of 
employers, recipients, or contractors, that provides alcohol testing as 
required by this subpart or other DOT alcohol testing rules and that 
acts on behalf of the operators.
    Covered employee means a person who performs on a pipeline or at an 
LNG facility an operation, maintenance, or emergency-response function 
regulated by parts 192, 193, or 195 of this chapter. Covered employee 
and individual or individual to be tested have the same meaning for the 
purposes of this subpart. The term covered employee does not include 
clerical, truck driving, accounting, or other functions not subject to 
parts 192, 193, or 195. The person may be employed by the operator, be 
a contractor engaged by the operator, or be employed by such a 
contractor.
    Covered function (safety-sensitive function) means an operation, 
maintenance, or emergency-response function that is performed on a 
pipeline or LNG facility and the function is regulated by parts 192, 
193, or 195.
    DOT agency An agency (or operating administration) of the United 
States Department of Transportation administering regulations requiring 
alcohol testing (14 CFR parts 61, 63, 65, 121, 135; 49 CFR parts 199, 
219, 382, and 654) in accordance with part 40 of this title.
    Employer or operator means a person who owns or operates a pipeline 
or LNG facility subject to parts 192, 193, or 195 of this chapter.
    Performing (a covered function): An employee is considered to be 
performing a covered function (safety-sensitive function) during any 
period in which he or she is actually performing, ready to perform, or 
immediately available to perform such covered functions.
    Refuse to submit (to an alcohol test) means that a covered employee 
fails to provide adequate breath for testing without a valid medical 
explanation after he or she has received notice of the requirement to 
be tested in accordance with the provisions of this subpart, or engages 
in conduct that clearly obstructs the testing process.
    Screening test means an analytical procedure to determine whether a 
covered employee may have a prohibited concentration of alcohol in his 
or her system.
    State agency means an agency of any of the several states, the 
District of Columbia, or Puerto Rico that participates under section 5 
of the Natural Gas Pipeline Safety Act of 1968 (49 App. U.S.C. 1674) or 
section 205 of the Hazardous Liquid Pipeline Safety Act of 1979 (49 
App. U.S.C. 2009).
    Substance abuse professional means a licensed physician (Medical 
Doctor or Doctor of Osteopathy), or a licensed or certified 
psychologist, social worker, employee assistance professional, or 
addiction counselor (certified by the National Association of 
Alcoholism and Drug Abuse Counselors Certification Commission), with 
knowledge of and clinical experience in the diagnosis and treatment of 
alcohol-related disorders.


Sec. 199.207  Preemption of State and local laws.

    (a) Except as provided in paragraph (b) of this section, this 
subpart preempts any State or local law, rule, regulation, or order to 
the extent that:
    (1) Compliance with both the State or local requirement and this 
subpart is not possible;
    (2) Compliance with the State or local requirement is an obstacle 
to the accomplishment and execution of any requirement in this subpart; 
or
    (3) The State or local requirement is a pipeline safety standard 
applicable to interstate pipeline facilities.
    (b) This subpart shall not be construed to preempt provisions of 
State criminal law that impose sanctions for reckless conduct leading 
to actual loss of life, injury, or damage to property, whether the 
provisions apply specifically to transportation employees or employers 
or to the general public.


Sec. 199.209  Other requirements imposed by operators.

    Except as expressly provided in this subpart, nothing in this 
subpart shall be construed to affect the authority of operators, or the 
rights of employees, with respect to the use or possession of alcohol, 
including authority and rights with respect to alcohol testing and 
rehabilitation.


Sec. 199.211  Requirement for notice.

    Before performing an alcohol test under this subpart, each operator 
shall notify a covered employee that the alcohol test is required by 
this subpart. No operator shall falsely represent that a test is 
administered under this subpart.


Sec. 199.213  Starting date for alcohol testing programs.

    (a) Large operators. Each operator with more than fifty covered 
employees on February 15, 1994 shall implement the requirements of this 
subpart beginning on January 1, 1995.
    (b) Small operators. Each operator with fifty or fewer covered 
employees on February 15, 1994 shall implement the requirements of this 
subpart beginning on January 1, 1996.
    (c) All operators commencing operations after February 15, 1994 
shall have an alcohol misuse program that conforms to this subpart by 
January 1, 1996, or by the date an operator begins operations, 
whichever is later.


Sec. 199.215  Alcohol concentration.

    Each operator shall prohibit a covered employee from reporting for 
duty or remaining on duty requiring the performance of covered 
functions while having an alcohol concentration of 0.04 or greater. No 
operator having actual knowledge that a covered employee has an alcohol 
concentration of 0.04 or greater shall permit the employee to perform 
or continue to perform covered functions.


Sec. 199.217  On-duty use.

    Each operator shall prohibit a covered employee from using alcohol 
while performing covered functions. No operator having actual knowledge 
that a covered employee is using alcohol while performing covered 
functions shall permit the employee to perform or continue to perform 
covered functions.


Sec. 199.219  Pre-duty use.

    Each operator shall prohibit a covered employee from using alcohol 
within four hours prior to performing covered functions, or, if an 
employee is called to duty to respond to an emergency, within the time 
period after the employee has been notified to report for duty. No 
operator having actual knowledge that a covered employee has used 
alcohol within four hours prior to performing covered functions or 
within the time period after the employee has been notified to report 
for duty shall permit that covered employee to perform or continue to 
perform covered functions.


Sec. 199.221  Use following an accident.

    Each operator shall prohibit a covered employee who has actual 
knowledge of an accident in which his or her performance of covered 
functions has not been discounted by the operator as a contributing 
factor to the accident from using alcohol for eight hours following the 
accident, unless he or she has been given a post-accident test under 
Sec. 199.225(a), or the operator has determined that the employee's 
performance could not have contributed to the accident.


Sec. 199.223  Refusal to submit to a required alcohol test.

    Each operator shall require a covered employee to submit to a post-
accident alcohol test required under Sec. 199.225(a), a reasonable 
suspicion alcohol test required under Sec. 199.225(b), or a follow-up 
alcohol test required under Sec. 199.225(d). No operator shall permit 
an employee who refuses to submit to such a test to perform or continue 
to perform covered functions.


Sec. 199.225  Alcohol tests required.

    Each operator shall conduct the following types of alcohol tests 
for the presence of alcohol:
    (a) Post-accident. (1) As soon as practicable following an 
accident, each operator shall test each surviving covered employee for 
alcohol if that employee's performance of a covered function either 
contributed to the accident or cannot be completely discounted as a 
contributing factor to the accident. The decision not to administer a 
test under this section shall be based on the operator's determination, 
using the best available information at the time of the determination, 
that the covered employee's performance could not have contributed to 
the accident.
    (2) If a test required by this section is not administered within 2 
hours following the accident, the operator shall prepare and maintain 
on file a record stating the reasons the test was not promptly 
administered. If a test required by paragraph (a) is not administered 
within 8 hours following the accident, the operator shall cease 
attempts to administer an alcohol test and shall state in the record 
the reasons for not administering the test.
    (3) A covered employee who is subject to post-accident testing who 
fails to remain readily available for such testing, including notifying 
the operator or operator representative of his/her location if he/she 
leaves the scene of the accident prior to submission to such test, may 
be deemed by the operator to have refused to submit to testing. Nothing 
in this section shall be construed to require the delay of necessary 
medical attention for injured people following an accident or to 
prohibit a covered employee from leaving the scene of an accident for 
the period necessary to obtain assistance in responding to the accident 
or to obtain necessary emergency medical care.
    (b) Reasonable suspicion testing. (1) Each operator shall require a 
covered employee to submit to an alcohol test when the operator has 
reasonable suspicion to believe that the employee has violated the 
prohibitions in this subpart.
    (2) The operator's determination that reasonable suspicion exists 
to require the covered employee to undergo an alcohol test shall be 
based on specific, contemporaneous, articulable observations concerning 
the appearance, behavior, speech, or body odors of the employee. The 
required observations shall be made by a supervisor who is trained in 
detecting the symptoms of alcohol misuse. The supervisor who makes the 
determination that reasonable suspicion exists shall not conduct the 
breath alcohol test on that employee.
    (3) Alcohol testing is authorized by this section only if the 
observations required by paragraph (b)(2) of this section are made 
during, just preceding, or just after the period of the work day that 
the employee is required to be in compliance with this subpart. A 
covered employee may be directed by the operator to undergo reasonable 
suspicion testing for alcohol only while the employee is performing 
covered functions; just before the employee is to perform covered 
functions; or just after the employee has ceased performing covered 
functions.
    (4) (i) If a test required by this section is not administered 
within 2 hours following the determination under paragraph (b)(2) of 
this section, the operator shall prepare and maintain on file a record 
stating the reasons the test was not promptly administered. If a test 
required by this section is not administered within 8 hours following 
the determination under paragraph (b)(2) of this section, the operator 
shall cease attempts to administer an alcohol test and shall state in 
the record the reasons for not administering the test. Records shall be 
submitted to RSPA upon request of the Administrator.
    (ii) Notwithstanding the absence of a reasonable suspicion alcohol 
test under this section, an operator shall not permit a covered 
employee to report for duty or remain on duty requiring the performance 
of covered functions while the employee is under the influence of or 
impaired by alcohol, as shown by the behavioral, speech, or performance 
indicators of alcohol misuse, nor shall an operator permit the covered 
employee to perform or continue to perform covered functions, until:
    (A) An alcohol test is administered and the employee's alcohol 
concentration measures less than 0.02; or
    (B) The start of the employee's next regularly scheduled duty 
period, but not less than 8 hours following the determination under 
paragraph (b)(2) of this section that there is reasonable suspicion to 
believe that the employee has violated the prohibitions in this 
subpart.
    (iii) Except as provided in paragraph (b)(4)(ii), no operator shall 
take any action under this subpart against a covered employee based 
solely on the employee's behavior and appearance in the absence of an 
alcohol test. This does not prohibit an operator with the authority 
independent of this subpart from taking any action otherwise consistent 
with law.
    (c) Return-to-duty testing. Each operator shall ensure that before 
a covered employee returns to duty requiring the performance of a 
covered function after engaging in conduct prohibited by Secs. 199.215 
through 199.223, the employee shall undergo a return-to-duty alcohol 
test with a result indicating an alcohol concentration of less than 
0.02.
    (d) Follow-up testing. (1) Following a determination under 
Sec. 199.243(b) that a covered employee is in need of assistance in 
resolving problems associated with alcohol misuse, each operator shall 
ensure that the employee is subject to unannounced follow-up alcohol 
testing as directed by a substance abuse professional in accordance 
with the provisions of Sec. 199.243(b)(2)(ii).
    (2) Follow-up testing shall be conducted when the covered employee 
is performing covered functions; just before the employee is to perform 
covered functions; or just after the employee has ceased performing 
such functions.
    (e) Retesting of covered employees with an alcohol concentration of 
0.02 or greater but less than 0.04. Each operator shall retest a 
covered employee to ensure compliance with the provisions of 
Sec. 199.237, if an operator chooses to permit the employee to perform 
a covered function within 8 hours following the administration of an 
alcohol test indicating an alcohol concentration of 0.02 or greater but 
less than 0.04.


Sec. 199.227  Retention of records.

    (a) General requirement. Each operator shall maintain records of 
its alcohol misuse prevention program as provided in this section. The 
records shall be maintained in a secure location with controlled 
access.
    (b) Period of retention. Each operator shall maintain the records 
in accordance with the following schedule:
    (1) Five years. Records of employee alcohol test results with 
results indicating an alcohol concentration of 0.02 or greater, 
documentation of refusals to take required alcohol tests, calibration 
documentation, employee evaluation and referrals, and MIS annual report 
data shall be maintained for a minimum of five years.
    (2) Two years. Records related to the collection process (except 
calibration of evidential breath testing devices), and training shall 
be maintained for a minimum of two years.
    (3) One year. Records of all test results below 0.02 (as defined in 
49 CFR part 40) shall be maintained for a minimum of one year.
    (c) Types of records. The following specific records shall be 
maintained:
    (1) Records related to the collection process:
    (i) Collection log books, if used.
    (ii) Calibration documentation for evidential breath testing 
devices.
    (iii) Documentation of breath alcohol technician training.
    (iv) Documents generated in connection with decisions to administer 
reasonable suspicion alcohol tests.
    (v) Documents generated in connection with decisions on post- 
accident tests.
    (vi) Documents verifying existence of a medical explanation of the 
inability of a covered employee to provide adequate breath for testing.
    (2) Records related to test results:
    (i) The operator's copy of the alcohol test form, including the 
results of the test.
    (ii) Documents related to the refusal of any covered employee to 
submit to an alcohol test required by this subpart.
    (iii) Documents presented by a covered employee to dispute the 
result of an alcohol test administered under this subpart.
    (3) Records related to other violations of this subpart.
    (4) Records related to evaluations:
    (i) Records pertaining to a determination by a substance abuse 
professional concerning a covered employee's need for assistance.
    (ii) Records concerning a covered employee's compliance with the 
recommendations of the substance abuse professional.
    (5) Record(s) related to the operator's MIS annual testing data.
    (6) Records related to education and training:
    (i) Materials on alcohol misuse awareness, including a copy of the 
operator's policy on alcohol misuse.
    (ii) Documentation of compliance with the requirements of 
Sec. 199.231.
    (iii) Documentation of training provided to supervisors for the 
purpose of qualifying the supervisors to make a determination 
concerning the need for alcohol testing based on reasonable suspicion.
    (iv) Certification that any training conducted under this subpart 
complies with the requirements for such training.


Sec. 199.229  Reporting of alcohol testing results.

    (a) Each large operator (having more than 50 covered employees) 
shall submit an annual management information system (MIS) report to 
RSPA of its alcohol testing results in the form and manner prescribed 
by the Administrator, by March 15 of each year for the previous 
calendar year (January 1 through December 31). The Administrator may 
require by written notice that a small operator (50 or fewer covered 
employees), not otherwise required to submit annual MIS reports, submit 
such a report to RSPA.
    (b) Each operator that is subject to more than one DOT agency 
alcohol rule shall identify each employee covered by the regulations of 
more than one DOT agency. The identification will be by the total 
number of covered employees. Prior to conducting any alcohol test on a 
covered employee subject to the rules of more than one DOT agency, the 
employer shall determine which DOT agency rule or rules authorizes or 
requires the test. The test result information shall be directed to the 
appropriate DOT agency or agencies.
    (c) Each report, required under this section, shall be submitted to 
the Office of Pipeline Safety Compliance (OPS), Research and Special 
Programs Administration, Department of Transportation, room 2335, 400 
Seventh Street, SW., Washington, DC 20590.
    (d) Each report that contains information on an alcohol screening 
test result of 0.02 or greater or a violation of the alcohol misuse 
provisions of Secs. 199.215 through 199.223 of this subpart shall be 
submitted on ``RSPA Alcohol Testing MIS Data Collection Form'' and 
include the following informational elements:
    (1) Number of covered employees.
    (2) Number of covered employees subject to testing under the 
alcohol misuse rule of another operating administration by each agency.
    (3) (i) Number of screening tests by type of test.
    (ii) Number of confirmation tests by type of test.
    (4) Number of confirmation tests indicating an alcohol 
concentration of 0.02 or greater but less than 0.04, by type of test.
    (5) Number of confirmation tests indicating an alcohol 
concentration of 0.04 or greater, by type of test.
    (6) Number of covered employees with a confirmation test indicating 
an alcohol concentration of 0.04 or greater or who have violations of 
other alcohol misuse provisions who were returned to duty in covered 
positions (having complied with the recommendations of a substance 
abuse professional as described in Secs. 199.235 and 199.243).
    (7) Number of covered employees who were administered alcohol and 
drug tests at the same time, with both a positive drug test and an 
alcohol test indicating an alcohol concentration of 0.04 or greater.
    (8) Number of covered employees who were found to have violated 
other provisions of Secs. 199.215 through 199.221, and any action taken 
in response to the violation.
    (9) Number of covered employees who refused to submit to an alcohol 
test required under this subpart, and the action taken in response to 
the refusal.
    (10) Number of supervisors who have received required training 
during the reporting period in determining the existence of reasonable 
suspicion of alcohol misuse.
    (e) Each report with no screening alcohol test results of 0.02, or 
greater or violations of the alcohol misuse provisions of Secs. 199.215 
through 199.223 of this subpart shall be submitted on ``RSPA Alcohol 
Testing MIS Data Collection EZ Form'' and include the following 
informational elements. (This ``EZ'' report may only be submitted if 
the program results meet these criteria)
    (1) Number of covered employees.
    (2) Number of covered employees subject to testing under the 
alcohol misuse rule of another operating administration identified by 
each agency.
    (3) Number of screening tests by type of test.
    (4) Number of covered employees who refused to submit to an alcohol 
test required under this subpart, and the action taken in response to 
the refusal.
    (5) Number of supervisors who have received required training 
during the reporting period in determining the existence of reasonable 
suspicion of alcohol misuse.
    (f) A consortium may prepare reports on behalf of individual 
pipeline operators for purposes of compliance with this reporting 
requirement. However, the pipeline operator shall sign and submit such 
a report and shall remain responsible for ensuring the accuracy and 
timeliness of each report prepared on its behalf by a consortium.


Sec. 199.231  Access to facilities and records.

    (a) Except as required by law or expressly authorized or required 
in this subpart, no employer shall release covered employee information 
that is contained in records required to be maintained in Sec. 199.227.
    (b) A covered employee is entitled, upon written request, to obtain 
copies of any records pertaining to the employee's use of alcohol, 
including any records pertaining to his or her alcohol tests. The 
operator shall promptly provide the records requested by the employee. 
Access to a employee's records shall not be contingent upon payment for 
records other than those specifically requested.
    (c) Each operator shall permit access to all facilities utilized in 
complying with the requirements of this subpart to the Secretary of 
Transportation, any DOT agency, or a representative of a state agency 
with regulatory authority over the operator.
    (d) Each operator shall make available copies of all results for 
employer alcohol testing conducted under this subpart and any other 
information pertaining to the operator's alcohol misuse prevention 
program, when requested by the Secretary of Transportation, any DOT 
agency with regulatory authority over the operator, or a representative 
of a state agency with regulatory authority over the operator. The 
information shall include name-specific alcohol test results, records, 
and reports.
    (e) When requested by the National Transportation Safety Board as 
part of an accident investigation, an operator shall disclose 
information related to the operator's administration of any post- 
accident alcohol tests administered following the accident under 
investigation.
    (f) An operator shall make records available to a subsequent 
employer upon receipt of the written request from the covered employee. 
Disclosure by the subsequent employer is permitted only as expressly 
authorized by the terms of the employee's written request.
    (g) An operator may disclose information required to be maintained 
under this subpart pertaining to a covered employee to the employee or 
the decisionmaker in a lawsuit, grievance, or other proceeding 
initiated by or on behalf of the individual, and arising from the 
results of an alcohol test administered under this subpart, or from the 
operator's determination that the covered employee engaged in conduct 
prohibited by Secs. 199.215 through 199.223 (including, but not limited 
to, a worker's compensation, unemployment compensation, or other 
proceeding relating to a benefit sought by the employee).
    (h) An operator shall release information regarding a covered 
employee's records as directed by the specific, written consent of the 
employee authorizing release of the information to an identified 
person. Release of such information by the person receiving the 
information is permitted only in accordance with the terms of the 
employee's consent.


Sec. 199.233  Removal from covered function.

    Except as provided in Secs. 199.239 through 199.243, no operator 
shall permit any covered employee to perform covered functions if the 
employee has engaged in conduct prohibited by Secs. 199.215 through 
199.223 or an alcohol misuse rule of another DOT agency.


Sec. 199.235  Required evaluation and testing.

    No operator shall permit a covered employee who has engaged in 
conduct prohibited by Secs. 199.215 through 199.223 to perform covered 
functions unless the employee has met the requirements of Sec. 199.243.


Sec. 199.237  Other alcohol-related conduct.

    (a) No operator shall permit a covered employee tested under the 
provisions of Sec. 199.225, who is found to have an alcohol 
concentration of 0.02 or greater but less than 0.04, to perform or 
continue to perform covered functions, until:
    (1) The employee's alcohol concentration measures less than 0.02 in 
accordance with a test administered under Sec. 199.225(e); or
    (2) The start of the employee's next regularly scheduled duty 
period, but not less than eight hours following administration of the 
test.
    (b) Except as provided in paragraph (a) of this section, no 
operator shall take any action under this subpart against an employee 
based solely on test results showing an alcohol concentration less than 
0.04. This does not prohibit an operator with authority independent of 
this subpart from taking any action otherwise consistent with law.


Sec. 199.239  Operator obligation to promulgate a policy on the misuse 
of alcohol.

    (a) General requirements. Each operator shall provide educational 
materials that explain these alcohol misuse requirements and the 
operator's policies and procedures with respect to meeting those 
requirements.
    (1) The operator shall ensure that a copy of these materials is 
distributed to each covered employee prior to start of alcohol testing 
under this subpart, and to each person subsequently hired for or 
transferred to a covered position.
    (2) Each operator shall provide written notice to representatives 
of employee organizations of the availability of this information.
    (b) Required content. The materials to be made available to covered 
employees shall include detailed discussion of at least the following:
    (1) The identity of the person designated by the operator to answer 
covered employee questions about the materials.
    (2) The categories of employees who are subject to the provisions 
of this subpart.
    (3) Sufficient information about the covered functions performed by 
those employees to make clear what period of the work day the covered 
employee is required to be in compliance with this subpart.
    (4) Specific information concerning covered employee conduct that 
is prohibited by this subpart.
    (5) The circumstances under which a covered employee will be tested 
for alcohol under this subpart.
    (6) The procedures that will be used to test for the presence of 
alcohol, protect the covered employee and the integrity of the breath 
testing process, safeguard the validity of the test results, and ensure 
that those results are attributed to the correct employee.
    (7) The requirement that a covered employee submit to alcohol tests 
administered in accordance with this subpart.
    (8) An explanation of what constitutes a refusal to submit to an 
alcohol test and the attendant consequences.
    (9) The consequences for covered employees found to have violated 
the prohibitions under this subpart, including the requirement that the 
employee be removed immediately from covered functions, and the 
procedures under Sec. 199.243.
    (10) The consequences for covered employees found to have an 
alcohol concentration of 0.02 or greater but less than 0.04.
    (11) Information concerning the effects of alcohol misuse on an 
individual's health, work, and personal life; signs and symptoms of an 
alcohol problem (the employee's or a coworker's); and including 
intervening evaluating and resolving problems associated with the 
misuse of alcohol including intervening when an alcohol problem is 
suspected, confrontation, referral to any available EAP, and/or 
referral to management.
    (c) Optional provisions. The materials supplied to covered 
employees may also include information on additional operator policies 
with respect to the use or possession of alcohol, including any 
consequences for an employee found to have a specified alcohol level, 
that are based on the operator's authority independent of this subpart. 
Any such additional policies or consequences shall be clearly described 
as being based on independent authority.


Sec. 199.241  Training for supervisors.

    Each operator shall ensure that persons designated to determine 
whether reasonable suspicion exists to require a covered employee to 
undergo alcohol testing under Sec. 199.225(b) receive at least 60 
minutes of training on the physical, behavioral, speech, and 
performance indicators of probable alcohol misuse.


Sec. 199.243  Referral, evaluation, and treatment.

    (a) Each covered employee who has engaged in conduct prohibited by 
Secs. 199.215 through 199.223 of this subpart shall be advised of the 
resources available to the covered employee in evaluating and resolving 
problems associated with the misuse of alcohol, including the names, 
addresses, and telephone numbers of substance abuse professionals and 
counseling and treatment programs.
    (b) Each covered employee who engages in conduct prohibited under 
Secs. 199.215 through 199.223 shall be evaluated by a substance abuse 
professional who shall determine what assistance, if any, the employee 
needs in resolving problems associated with alcohol misuse.
    (c) (1) Before a covered employee returns to duty requiring the 
performance of a covered function after engaging in conduct prohibited 
by Secs. 199.215 through 199.223 of this subpart, the employee shall 
undergo a return-to-duty alcohol test with a result indicating an 
alcohol concentration of less than 0.02.
    (2) In addition, each covered employee identified as needing 
assistance in resolving problems associated with alcohol misuse--
    (i) Shall be evaluated by a substance abuse professional to 
determine that the employee has properly followed any rehabilitation 
program prescribed under paragraph (b) of this section, and
    (ii) Shall be subject to unannounced follow-up alcohol tests 
administered by the operator following the 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 employee's return to duty. 
In addition, follow-up testing may include testing for drugs, 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 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.
    (d) 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.
    (e) The operator shall ensure that a substance abuse professional 
who determines that a covered employee requires assistance in resolving 
problems with alcohol misuse does not refer the 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 substance abuse professional has a 
financial interest. This paragraph does not prohibit a substance abuse 
professional from referring an 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 alcohol 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.


Sec. 199.245  Contractor employees.

    (a) With respect to those covered employees who are contractors or 
employed by a contractor, an operator may provide by contract that the 
alcohol testing, training and education required by this subpart be 
carried out by the contractor provided:
    (b) The operator remains responsible for ensuring that the 
requirements of this subpart and part 40 of this title are complied 
with; and
    (c) The contractor allows access to property and records by the 
operator, the Administrator, any DOT agency with regulatory authority 
over the operator or covered employee, and, if the operator is subject 
to the jurisdiction of a state agency, a representative of the state 
agency for the purposes of monitoring the operator's compliance with 
the requirements of this subpart and part 40 of this title.

    Issued in Washington, DC on January 25, 1994.
Federico Pena,
Secretary of Transportation.
Ana Sol Gutierrez,
Acting Administrator, Research and Special Programs Administration.

    Note: The following appendix and exhibit will not appear in the 
Code of Federal Regulations.
BILLING CODE 4910-60-P

TR15FE94.020


TR15FE94.021


TR15FE94.022


TR15FE94.023


TR15FE94.024


TR15FE94.025


TR15FE94.026


TR15FE94.027


TR15FE94.028


TR15FE94.029


[FR Doc. 94-2034 Filed 2-3-94; 1:00 pm]
BILLING CODE 4910-60-C