[Federal Register Volume 59, Number 231 (Friday, December 2, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29391]


[[Page Unknown]]

[Federal Register: December 2, 1994]


_______________________________________________________________________

Part VII





Department of Transportation





_______________________________________________________________________



Research and Special Programs Administration



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49 CFR Part 199




Alcohol Misuse Prevention Program; Final Rule
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Research and Special Programs Administration
49 CFR Part 199
[Docket No. PS-128, Amdt. No. 199-10]
RIN 2137-AC21
 
Alcohol Misuse Prevention Program
AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Response to petition for reconsideration and request for 
clarification; Final rule.

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SUMMARY: This action responds to a petition for reconsideration and 
request for clarification of a final rule, published February 15, 1994 
(59 FR 7426), requiring operators of gas, hazardous liquid, and carbon 
dioxide pipelines and liquefied natural gas facilities subject to the 
pipeline safety regulations to implement alcohol misuse prevention 
programs for employees who perform certain safety-sensitive functions. 
The petition for reconsideration is granted in part and denied in part, 
for the reasons set forth below.

EFFECTIVE DATE: January 1, 1995.

FOR FURTHER INFORMATION CONTACT: Mary M. Crouter, Special Counsel, 
Office of the Chief Counsel, RSPA, DOT, 400 Seventh Street, SW., 
Washington, DC 20590-0001 (202-366-4400) or the RSPA Dockets Unit, 
(202) 366-4453, for copies of this final rule or other material in the 
docket.
SUPPLEMENTARY INFORMATION:
Background

    On February 15, 1994, RSPA published a final rule (59 FR 7426) to 
require 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. On March 
15, 1994, RSPA received a Joint Petition for Reconsideration and 
Request for Clarification (Jt. Pet.) of the final rule from the 
American Gas Association and the Interstate Natural Gas Association of 
America (Petitioners). Discussion of the issues and RSPA's responses 
follow.

1. RSPA Should Stay the Effective Date of the Final Rule on Alcohol 
Misuse Prevention Programs Until RSPA Issues Final Rules in Currently 
Pending Rulemaking Proceedings

    The Petitioners noted that, in addition to the alcohol misuse 
rules, DOT also published two proposed rules on the use of alcohol 
screening devices and the use of blood alcohol tests in post-accident 
and reasonable suspicion situations when an evidential breath testing 
device (EBT) is not reasonably available.
    The Petitioners request that RSPA stay implementation of the 
alcohol misuse rule until such time as DOT issues final regulations 
concerning screening devices and blood tests. The Petitioners contend 
that delaying implementation of the final rule does not present a 
safety issue because the type of alcohol testing required by the rule 
(e.g., post-accident, reasonable suspicion) is already performed by 
most natural gas utilities and pipeline operators.
    The Petitioners note that the proposal on alternate screening 
devices would allow employers to use them to determine the presence of 
alcohol and then perform confirmation tests using approved EBTs. With 
regard to the proposed rule on blood testing, the Petitioners note that 
the rule would allow blood tests in post-accident and reasonable 
suspicion situations where operators may not have reasonable access to 
an EBT. The Petitioners are concerned that, to comply with the current 
final rule, operators will have to purchase EBTs and train operators, 
or enter into contractual agreements for testing with EBTs, only to 
learn that DOT has now issued a rule authorizing blood testing. The 
Petitioners are concerned that pipeline operators will unnecessarily 
spend thousands of dollars to comply with a rule that may soon be 
revised. In addition, Petitioners request that, since pipeline 
operators are not required to conduct pre-employment or random alcohol 
testing, RSPA should allow blood testing as an unqualified alternative 
to EBTs. The Petitioners state that in the pipeline industry, where 
many employees are located at remote sites, there will be numerous 
situations where operators will not be able to transport quickly an 
employee to a testing facility or have a breath alcohol technician and 
equipment readily available. Moreover, the Petitioners contend that 
mandating the use of EBTs will significantly add to the costs of 
carrying out alcohol prevention programs, in terms of procuring new 
equipment, developing training manuals, and instructing employees on 
their use, even though there exists a real possibility that operators 
will be unable to use the devices in the majority of testing 
situations.
    The Petitioners note that the Omnibus Transportation Employee 
Testing Act of 1991 did not apply to the pipeline industry, and 
therefore RSPA is not constrained by the Act in promulgating alcohol 
regulations. The Petitioners also note that DOT's regulations attempt 
to protect employees from the invasiveness of blood testing, by 
requiring the use of EBTs. Petitioners contend, however, that the need 
for protection is most necessary in a random test, where the employee 
has done nothing to warrant being singled out for testing. In contrast, 
Petitioners state that, in the case of a post-accident or reasonable 
suspicion test, employee protection ``is counterbalanced by the need to 
establish if alcohol use is a threat to safety or has played a role in 
an accident.'' (Jt. Pet. at 8).
    RSPA Response. RSPA is denying the Petitioners' request. DOT's 
alcohol testing regulations are based on the concept that evidential 
breath testing is the preferred method of testing for the presence of 
alcohol. The reasons underlying the decision to select breath testing 
were discussed at some length in the Common Preamble (59 FR 7315). 
Evidential breath testing devices are reliable and highly accurate at 
detecting even low alcohol concentrations, and their use is possible in 
all transportation settings because they are portable. The devices have 
been in use a long time, and all States accept EBT results as reliable 
evidence of an individual's violation of a law establishing a per se 
prohibited blood alcohol concentration, as long as the devices are 
properly calibrated and operated by trained personnel. As important, 
EBTs provide an immediate confirmed result, which enables the immediate 
removal of an employee who has misused alcohol.
    In contrast, blood alcohol testing is invasive, does not provide an 
immediate result, and requires extensive sample collection, shipping, 
and laboratory analysis procedures to implement. The NPRM on blood 
testing proposed to allow blood testing only in a limited set of 
circumstances where an EBT is not readily available. As stated in the 
preamble to the NPRM,

    [B]ecause of its greater invasiveness and because it does not 
produce an immediate result, the use of blood alcohol testing is 
intended to be used only in those reasonable suspicion and post-
accident testing circumstances where it is not practicable to use 
breath testing. Blood alcohol testing is not intended, under the 
proposal, to be an equal alternative method that an employer can 
choose as a matter of preference.

59 FR 7367.

    Regardless of whether the blood testing proposal is adopted, we 
believe that the pipeline industry must make reasonable efforts to 
arrange for the use of a sufficient number of EBTs to conduct 
reasonable suspicion and post-accident testing. Pipeline operators may 
arrange for the use of EBTs through purchase, lease, or contract with a 
consortium or other third-party provider. An operator need not purchase 
EBTs, but can make arrangements with a third party provider for those 
relatively few reasonable suspicion or post-accident tests that may 
need to be conducted. RSPA's experience with drug testing is that fewer 
than 3% of the total tests conducted have been in post-accident and 
reasonable suspicion situations.
    We do not expect an operator to arrange for an EBT at every 
possible testing location, but an operator can certainly arrange for 
EBTs in locations where substantial numbers of employees are 
concentrated, and at any locations where accident or leak history 
suggests the need for an EBT. Large operators (those with more than 50 
covered employees) should not encounter difficulty in arranging for the 
use of EBTs by the January 1, 1995 compliance date. EBTs are readily 
available for purchase from several manufacturers, and the inventory of 
EBTs is sufficient to enable most manufacturers to ship EBTs in five to 
ten days. In addition to inventory, there is sufficient production 
capacity to manufacture approximately 7,500 new units each month. The 
National Highway Traffic Safety Administration (NHTSA) has issued final 
Model Specifications for the performance and testing of alcohol 
screening devices (August 2, 1994; 59 FR 39382), and will soon publish 
a Conforming Products List (CPL) identifying devices that meet the 
Model Specifications. The CPL is expected to include several 
preliminary breath testing devices (PBTs) and at least one saliva 
device.
    Pipeline operators were advised of the final alcohol rule on 
February 15, 1994, allowing them almost one year (for large operators) 
and almost two years (for small operators) to make preparations for 
compliance with their respective January 1, 1995, and January 1, 1996 
dates. Issuance of this decision on the petition for reconsideration 
should resolve any remaining uncertainty and provide sufficient time 
for operators to achieve compliance by the respective compliance dates.

2. RSPA Should Clarify Its Position on Dual Modal Coverage

    The Petitioners contend that the RSPA final rule does not make 
clear the status of employees who may be subject to both the RSPA and 
the Federal Highway Administration (FHWA) rules. The Petitioners state 
that the Common Preamble to the DOT final rules (59 FR 7301, 7377) 
``specifically includes the example of an employee that is a pipeline 
worker and holds a commercial drivers license.'' (Jt. Pet. at 8). The 
Petitioners state that the Common Preamble states that, based upon an 
employee's major job function, an employer may designate an employee as 
either a pipeline employee or a driver for purposes of random alcohol 
testing. (59 FR 7337). Petitioners contend that DOT employees have made 
contradictory statements regarding this issue, and urge RSPA to clarify 
that employees who perform pipeline functions the majority of the time, 
would not have to be tested under the FHWA rules.
    RSPA Response. RSPA is granting the request to clarify this issue, 
but is denying the Petitioners' request to classify an employee, for 
testing purposes, solely by the percentage of time the employee spends 
performing pipeline functions. Therefore, no change to the rule itself 
is necessary.
    The Omnibus Transportation Employee Testing Act of 1991 (Omnibus 
Act) amended the Commercial Motor Vehicle Safety Act of 1986 (now 
codified in 49 U.S.C. 31306) to require that all drivers of commercial 
motor vehicles (CMVs) who are required to obtain commercial driver's 
licenses (CDLs), be subject to testing for the illegal use of alcohol 
and controlled substances.
    Therefore, a pipeline employee who is required by his or her 
employer (a pipeline operator) to hold a CDL as a condition of 
employment, and who is required to be available to drive a CMV as part 
of his or her job, is subject to the FHWA rules, including random 
testing. This requirement applies regardless of the amount of time that 
the employee actually drives a CMV or performs other safety-sensitive 
duties as defined in the FHWA regulations under 49 CFR part 382 (e.g., 
loading/unloading vehicles, waiting to be dispatched, performing 
vehicle inspections). The timing of any random test, however, does 
depend upon when the employee is performing that driving function. The 
employee may be subject to random alcohol testing under the FHWA rules 
at any time just before, during, or just after driving a CMV. If a 
pipeline employee may be called upon to drive a CMV at any time during 
the work week, then the employee is subject to random testing at any 
time during the employee's scheduled work shift. If, however, the 
employee is called upon to drive a CMV only two days a week (e.g., 
Monday and Friday), then the employee is only subject to random testing 
on those two days.
    In addition, 49 U.S.C. 31306 requires that a driver required to 
obtain a CDL must be subject to pre-employment/pre-duty testing. 
Therefore, a pipeline employee who is required to obtain a CDL as a 
condition of employment, and who is required to be available to drive a 
CMV, is subject to pre-employment/pre-duty testing under the FHWA 
rules. Requirements for pre-employment/pre-duty testing under the FHWA 
rules are contained in 49 CFR 382.301.
    With respect to post-accident and reasonable suspicion testing, an 
employee is subject to testing while performing either pipeline or 
driving functions. If an employee is involved in accident while driving 
a CMV, then the operator should look to the FHWA rules (49 CFR 390.5) 
to determine whether the accident is one that requires testing. 
Similarly, if an employee is involved in an accident while performing a 
covered pipeline function, the definition of an accident in section 
199.205 applies.
    Conversely, a pipeline employee who is not required by his or her 
employer (a pipeline operator) to hold a CDL as a condition of 
employment and does not drive a CMV as part of his or her job, is not 
subject to testing under the FHWA rules.

3. RSPA Should Clarify That Operators Are Only Responsible for 
Preventing Employees From Driving Company Vehicles

    The Petitioners state that the ``Background Material'' accompanying 
the 49 CFR part 40 final regulations states that employees testing 
positive for alcohol ``should not drive.'' (59 FR 7340, 7346). 
Petitioners contend that enforcing a broad prohibition on driving 
raises serious legal questions. The Petitioners request that DOT 
clarify that the employer's responsibility extends only to limiting 
employees from driving company vehicles or for company purposes, and 
that employers should not be responsible for policing the actions of an 
employee after he or she has tested positive.
    RSPA Response. RSPA is granting the Petitioners' request to clarify 
this issue. The preamble to the 49 CFR part 40 regulations states that 
the DOT alcohol testing form includes a statement, to be signed by the 
employee, that persons who test positive should not drive or perform 
other safety-sensitive functions. (59 FR 7346). The requirement to sign 
the statement applies to the employee, not to the employer. The 
statement in the preamble that employers have a responsibility, as part 
of their alcohol education for employees, to emphasize that employees 
must cease performing safety-sensitive functions if they test positive 
does not mean that employers must police the private conduct of 
employees who test positive.
    The employer's specific responsibility is set forth in 49 CFR 
199.215 and 199.237, which provide that an operator may not permit a 
covered employee who has an alcohol concentration of 0.02 or greater to 
perform or continue to perform covered functions until certain 
requirements are met. An operator may not permit such an employee, for 
example, to drive a CMV or perform a pipeline safety function. The 
rules do not require an operator to prohibit an employee from driving 
his or her own vehicle after having tested positive. However, under 49 
CFR 199.239, an operator has an obligation to promulgate a policy on 
the misuse of alcohol, including providing educational materials to 
employees concerning the effects of alcohol misuse on an individual's 
health, work, and personal life. Such materials frequently include 
information advising on the dangers of driving while under the 
influence of alcohol. Therefore, no change to the rule is necessary.

4. RSPA Should Clarify That Operators Are Not Responsible for the 
Storage of EBT Devices

    The Petitioners state that the DOT regulations in 49 CFR 40.55(c) 
require that employers store EBTs in a secure space. The Petitioners 
contend that it will often be the case that EBTs will not be in the 
control of the employer, but will be maintained by hospitals, 
contractors, and consortiums. Where testing devices are in the 
possession of others, the Petitioners contend, employers will have 
limited ability to control maintenance and operation of the devices. 
The Petitioners maintain that all that reasonably can be required of 
employers is that they contractually require third parties to abide by 
the regulations. The Petitioners contend that, as for emergency 
personnel and hospitals, employers obviously cannot be required to 
monitor their operations.
    RSPA Response. Section 40.55(c) stipulates that when the employer 
is not using the EBT at an alcohol testing site, the employer shall 
store the EBT in a secure space. This provision plainly is directed to 
those situations when the employer is conducting the testing, either 
directly or through a contract with a third party provider. If the 
employer is conducting the testing, then the employer must secure the 
EBT when it is not in use. If the employer is conducting testing 
through a contractor, then the contract must provide that the 
contractor will secure the EBT when it is not in use. Therefore, no 
change to the rule is necessary.

5. RSPA Should Clarify That Operators May Combine Drug and Alcohol 
Training Requirements

    The Petitioners state that the Common Preamble indicates that 
employers may combine their alcohol and drug training programs for 
supervisors, for a total time of two hours. The Petitioners contend 
that much of the information pertaining to detecting alcohol and drug 
abuse will overlap, and it is not necessary to require a two-hour 
training session. The Petitioners urge DOT to clarify that employers 
need only provide combined training on drugs and alcohol for one hour.
    RSPA Response. RSPA is denying the Petitioners' request. The Common 
Preamble clearly provides that ``[e]mployers are free to combine 
supervisor training for alcohol misuse detection with the comparable 
training for drug use detection currently required by the OA drug 
testing rules for a total of two hours to minimize costs and 
inconvenience.'' (59 FR 7334). The Petitioners did not provide any 
justification for reducing the supervisory training to a total of one 
hour for both drugs and alcohol, other than to suggest that ``much of 
the information * * * will overlap.'' (Jt. Pet. at 11). Although some 
of the symptoms of drug and alcohol use may be similar, the symptoms 
vary widely depending on the type and quantity of the substance 
ingested. Many commenters recommended that additional supervisory 
training on alcohol misuse (more than one hour) be required, and many 
employers voluntarily offer recurrent or follow-up training to ensure 
that supervisors have sufficient awareness of the indicators of alcohol 
and drug use. Therefore, RSPA is retaining the requirement that 
operators must provide a minimum of one hour of supervisory training 
for drug use and one hour for alcohol misuse, which may be combined 
into a single two-hour training period. Accordingly, no change to the 
rule is necessary.

6. RSPA Should Clarify Its Position on Follow-Up Tests for Alcohol and 
Drugs

    The Petitioners state that the RSPA regulations in 49 CFR 
199.225(d)(1) require follow-up alcohol tests in certain situations, 
but do not address whether it is appropriate for a substance abuse 
professional (SAP) also to require follow-up drug tests, when an 
individual also shows signs of drug abuse. The Petitioners point out 
that the Common Preamble, however, indicates that the rules will permit 
an employer to conduct follow-up drug tests, if the SAP suspects drug 
involvement. The Petitioners request that RSPA clarify that the 
authority in the Common Preamble also extends to RSPA operators.
    RSPA Response. RSPA is granting the Petitioners' request to clarify 
this issue. Section 199.225(d)(1) provides that follow-up testing shall 
be conducted in accordance with the provisions of 
Sec. 199.243(b)(2)(ii). This reference is in error, and should be to 
Sec. 199.243(c)(2)(ii), which provides that follow-up testing may 
include testing for drugs, as directed by the SAP, to be performed in 
accordance with 49 CFR part 40. RSPA is amending Sec. 199.225(d)(1) to 
include the correct reference.

7. RSPA Should Clarify That Companies Are Not Responsible for Ensuring 
Contractor Compliance With the Final Rule

    The Petitioners contend that operators should not be responsible 
for ensuring that contractors comply with the alcohol misuse program. 
(Jt. Pet. at 11). The Petitioners contend that the monitoring 
responsibility for contractor employees is highly impracticable and 
difficult to achieve, particularly for small operators who rely on many 
contractors, and may enter into contracts at short notice. The 
Petitioners assert that there are practical problems in monitoring 
transient workers, or in knowing which particular contract employees 
will perform certain jobs. The Petitioners state that contractors ``are 
used predominantly for construction, and almost never for operations. 
Therefore, it is difficult to envision circumstances where post-
accident testing would be required for contractors.'' (Jt. Pet. at 12). 
The Petitioners assert that ``for cause'' testing is also unnecessary, 
because currently when an operator suspects a contractor employee is 
alcohol-impaired, the contractor is ordered to remove the employee. The 
Petitioners therefore contend that requiring operators to oversee or 
manage a detailed alcohol compliance program for contractors is an 
inefficient use of resources and an unnecessary burden, given that the 
only testing that is likely to be carried out is ``for cause'' testing, 
which is already handled adequately by operator/contractor agreements.
    RSPA Response. RSPA is denying the Petitioners' request. RSPA's 
longstanding and oft-stated position on this issue is that a pipeline 
operator who chooses to perform safety-sensitive functions by using 
contractors is held responsible for compliance with the Pipeline Safety 
Regulations just as if the operator's own employees were performing the 
work (54 FR 51747, December 18, 1989; 57 FR 59714, December 15, 1992). 
The proper performance of a safety-sensitive function should not be 
dependent on the individual's direct or indirect employment 
relationship with the operator. Furthermore, the alcohol rules are 
limited to persons performing covered functions, i.e., operation, 
maintenance, and emergency response functions that are regulated by 49 
CFR parts 192, 193, or 195 and performed on a pipeline or liquefied 
natural gas facility. Covered functions do not include clerical, truck 
driving, accounting, or other functions not covered by parts 192, 193, 
or 195 (49 CFR 199.205).
    The Petitioners themselves note that contractors are used 
predominantly for construction (which generally is not a covered 
function), are almost never used for operations, and, therefore, post-
accident testing for contractors would be rare. By this same reasoning, 
contractors would only rarely be subject to reasonable suspicion 
testing, i.e., when performing covered functions. If the Petitioners 
are correct that few contractor employees will be performing covered 
functions, then there should be a very minimal burden on operators. If 
a contractor does not perform covered functions, then no operator 
monitoring will be required.
    In those instances where a contractor employee is performing a 
covered function, RSPA is not persuaded that the employee should be 
removed, without a test, because the operator suspects that the 
employee is alcohol-impaired. If the operator has the opportunity to 
observe the employee and determines that reasonable suspicion exists 
that the employee is impaired, the employee must be tested.
    Although an operator may choose, under Sec. 199.245, to allow a 
contractor to carry out the required alcohol testing, training, and 
education, the operator may find that it is simpler and more cost-
effective to assume that responsibility directly. Unlike random and 
pre-employment testing, which involve large numbers of tests, post-
accident and reasonable suspicion testing should result in relatively 
few tests. RSPA's experience with drug testing is that fewer than 3% of 
the total tests conducted have been in post-accident and reasonable 
suspicion situations. Regardless of whether it employs contractors, an 
operator must have an alcohol misuse plan, provide educational 
materials to its employees, train supervisors, and be prepared to 
conduct tests. An operator could make copies of its educational 
materials available to contractor employees, use trained supervisors to 
observe contractor employees who are performing safety-sensitive 
functions, and test contractor employees in those few instances when 
testing is required. The arguments advanced by the Petitioners do not 
demonstrate that the requirement to ensure contractor compliance with 
the alcohol rule is unduly burdensome, impractical, or unnecessary. 
Therefore, RSPA is retaining the requirement that the operator is 
responsible for ensuring that employees who perform covered functions 
for the operator, whether directly or by contract, are subject to the 
requirements of the RSPA rule. Accordingly, no change to the rule is 
necessary.

8. RSPA Should Clarify That Operators May Continue To Remove an 
Employee Without Conducting a Test 

    The Petitioners state that many operators currently remove a 
safety-sensitive employee from the job, without performing an alcohol 
test, who is suspected of being alcohol-impaired. The Petitioners urge 
RSPA to amend the final rule and allow employers to continue this 
practice as long as the employee is made aware that the employer is 
relying on company policy or a labor agreement and not the DOT 
regulations, for the authority to remove the employee. The Petitioners 
contend that if the employee is not allowed to return to the job unless 
the other DOT requirements are met, such as evaluation by a SAP and 
follow-up testing, then the operator should be permitted to remove an 
employee without performing an alcohol test. The Petitioners suggested 
that, for reporting purposes, operators should be required to notify 
DOT of those employees who were not tested, but nonetheless removed 
from the job, counseled in alcohol counseling programs, or dismissed.
    RSPA Response. RSPA is denying the Petitioners' request. Section 
199.225(b) requires each operator to require an employee to submit to 
an alcohol test when the operator has reasonable suspicion to believe 
that the employee has violated the prohibitions in the alcohol misuse 
rule (e.g., has an alcohol concentration of 0.04 or greater, or has 
used alcohol while performing covered functions). Section 
199.225(b)(4)(ii) provides that, notwithstanding the absence of a 
reasonable suspicion test, an operator shall not allow an employee to 
perform covered functions while the employee appears to be under the 
influence of or impaired by alcohol, until eight hours have passed or 
the employee has been tested and has a result below 0.02. As discussed 
in the Common Preamble (59 FR 7328), an employer who observes an 
employee exhibiting the appearance of alcohol misuse, must test that 
employee. However, ``when it is infeasible or impossible to conduct a 
reasonable suspicion test in a timely manner (e.g., an EBT is 
unavailable or broken), the employee is not permitted to perform 
safety-sensitive functions for eight hours (or until obtaining a result 
below 0.02 on a test if an EBT subsequently becomes available within 
the 8-hour period).''
    Section 199.225(b)(4)(iii) specifies that, except as provided in 
Sec. 199.225(b)(4)(ii) (i.e., removal from covered functions for eight 
hours or until a test result of below 0.02), ``no operator shall take 
any action under [the RSPA alcohol misuse rule] against an 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 [rule] from taking any action otherwise 
consistent with law.'' Under the RSPA rule, an operator is required to 
test an employee when the operator has reason to believe the employee 
is under the influence of or impaired by alcohol, or has violated any 
other prohibition in the RSPA rule. The operator may not simply remove 
the employee without conducting a test, unless conducting a test is 
physically impossible because the employee is in a remote location or 
the only available EBT is broken. In such a situation, where a test 
cannot be conducted, the operator must ensure that the employee does 
not perform any covered functions for eight hours or until a test 
result of below 0.02 is obtained, whichever comes first. The operator 
may take no other action against the employee under authority of the 
RSPA rule. If the operator wishes to take additional action under its 
own authority, it may do so, but it must conduct reasonable suspicion 
testing in accordance with the RSPA rule.
    As explained in the preamble to the RSPA final rule (59 FR 7427), 
RSPA will monitor the data that we receive from post-accident and 
reasonable suspicion tests to determine if further action is warranted. 
Alcohol misuse is a problem in society generally, and it is reasonable 
to expect that the pipeline industry is not immune from that problem. 
Testing is vital to determine the extent of any problem, and the 
resulting data is necessary to evaluate the alcohol misuse program and 
develop more effective strategies for eliminating alcohol misuse. 
Accordingly, no change to the rule is necessary.

Regulatory Analyses and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

    Although the February 15, 1994 alcohol misuse final rule was 
significant, this document is not significant because it merely 
clarifies the February 15 rule and makes no substantive changes to the 
rule text. Therefore, this document was not reviewed by the Office of 
Management and Budget under section 3(f) of Executive Order 12866, and 
is not considered significant under the Regulatory Policies and 
Procedures of the Department of Transportation (44 FR 11034). A 
regulatory evaluation prepared for the February 15, 1994 final rule is 
available for review in the docket.

Paperwork Reduction Act

    This document does not contain any new information collection 
requirements subject to the Paperwork Reduction Act.

Regulatory Flexibility Act

    This document merely clarifies the final rule published on February 
15, 1994. Therefore, I certify under Section 605 of the Regulatory 
Flexibility Act (5 U.S.C.) that this action will not have a significant 
economic impact on a substantial number of small entities.

Executive Order 12612

    This action 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, RSPA has determined that this action 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:

PART 199--DRUG AND ALCOHOL TESTING

    1. The authority citation for part 199 is revised to read as 
follows:

    Authority: 49 U.S.C. 60101 et seq.; 49 CFR 1.53.

    2. Section 199.225 is amended by revising paragraph (d)(1) to read 
as follows:


Sec. 199.225  Alcohol tests required.

* * * * *
    (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(c)(2)(ii).
* * * * *
    Issued in Washington, DC on November 22, 1994.
D.K. Sharma,
Administrator, Research and Special Programs Administration.
[FR Doc. 94-29391 Filed 11-29-94; 12:03 pm]
BILLING CODE 4910-60-P