[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.
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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