[Federal Register Volume 62, Number 161 (Wednesday, August 20, 1997)]
[Proposed Rules]
[Pages 44250-44253]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22048]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Part 199
[RSPA Docket PS-128; Amdt. 199-15]
RIN 2137-AC84
Drug and Alcohol Testing; Substance Abuse Professional Evaluation
for Drug Use
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Research and Special Programs Administration proposes to
modify current procedures in its drug testing regulations governing
situations in which pipeline employees test positive on a drug test.
The proposed changes would require pipeline operators to require
employees who test positive for the presence of prohibited drugs or who
refuse to take a required drug test to be evaluated by a substance
abuse professional (SAP), who could require an employee to undergo a
rehabilitation program prior to the
[[Page 44251]]
employee's return to duty. The reason for this change is to conform
RSPA's drug and alcohol testing regulations with the drug and alcohol
regulations of the other Department of Transportation operating
administrations. In addition, RSPA is proposing to define ``covered
employee'' and ``covered function.'' Finally, this rule would allow
Medical Review Officers (MROs) who meet the SAP qualifications to
perform the evaluation of individuals who have had a verified positive
drug test or who have refused to take a required test.
DATES: Comments should be received by October 20, 1997. Late-filed
comments will be considered to the extent practicable.
ADDRESSES: Comments should be sent to the Dockets Unit, Room 8421, U.S.
Department of Transportation, Research and Special Programs
Administration, 400 Seventh Street, SW., Washington, DC 20590-0001.
Comments should identify the Docket Number PS-128 and the RSPA
Rulemaking Number 2137-AC84. Commenters should submit 3 copies.
Commenters wishing to receive confirmation of receipt of their comments
must include a stamped, self-addressed postcard with their comments.
The docket clerk will date stamp the postcard and return it to the
commenter. Comments will be available for inspection and copying in
Room 8421 between 8:30 a.m. and 5 p.m. each business day.
FOR FURTHER INFORMATION CONTACT: Catrina M. Pavlik, Drug/Alcohol
Program Analyst, Research and Special Programs Administration, Office
of Pipeline Safety, Room 2335, 400 Seventh Street, SW., Washington, DC
20590. Telephone: (202) 366-6199, Fax: (202) 366-4566, e-mail:
[email protected].
SUPPLEMENTARY INFORMATION: The February 15, 1994, publication of the
Department's common preamble to the Limitation on Alcohol Use by
Transportation Workers discusses the requirement for a substance abuse
professional evaluation when an employee tests positive for alcohol (59
FR 7302). RSPA's alcohol testing regulations include a requirement that
pipeline operators use a SAP to evaluate pipeline employees whose test
results indicate an alcohol concentration of 0.04% or greater, or who
fail or refuse to undergo an alcohol test. These individuals are
required to follow a rehabilitation program that is prescribed by the
SAP before returning to duty. Unlike the other modal administrations,
RSPA did not incorporate a similar requirement on pipeline operators
whose employees tested positive for the presence of prohibited drugs or
refused to undergo a drug test. Under RSPA's drug testing regulations,
an employee who either tests positive for a prohibited drug or who
refuses to take a required drug test must be interviewed by an MRO to
confirm a positive drug test and to determine whether there is a
legitimate medical explanation for the confirmed test or for an
employee's refusal to be tested. Once confirmed, the MRO is required to
determine when the employee is eligible to take a return-to-duty test.
Unlike the alcohol testing rules, the drug testing rules do not require
employees to follow a rehabilitation program prescribed by a SAP. Upon
receiving a negative test result from a return-to-duty test, the MRO is
responsible for establishing an unannounced follow-up testing schedule
for that employee. This schedule is not permitted to exceed 60 months.
Because of the desire to conform RSPA's drug testing regulations
with the drug testing regulations of the other modal administrations,
RSPA is proposing to require pipeline operators to utilize SAPs to
evaluate pipeline employees who have either received a positive drug
test or have refused a drug test required by RSPA. In addition, the SAP
could require an employee to complete a rehabilitation program before
being eligible to return to duty.
Conformity among the modes will assist with overall administration
of RSPA's drug testing regulations. Currently 14% of the pipeline
employees subject to RSPA's drug testing regulations are also subject
to the drug testing regulations of one or more of the other DOT modes.
According to the FY95 Management Information System (MIS) reports there
are approximately 160,906 employees covered by RSPA's drug testing
regulations. Of that number, 41 are also covered by FAA, 26,969 are
also covered by FHWA, 210 are also covered by FTA, 216 are also covered
by USCG and none are covered by FRA. Employees presently dual-covered
by another operating administration are already required to undergo a
substance abuse professional evaluation for a positive drug test. In
addition to conforming RSPA's drug rules with the other modal
administrations, this action would make RSPA's drug testing rule
consistent with RSPA's alcohol rule.
RSPA sought informal feedback from the American Gas Association
(AGA) and the American Petroleum Gas Association (APGA) on whether this
requirement would have an impact on pipeline operators. After an
informal survey of several of their members, AGA and APGA stated that
they felt this requirement would not be a burden to pipeline operators
since those members are already adhering to this procedure for
activities covered by other DOT operating administrations.
Requiring a SAP evaluation for a positive drug test or an
employee's refusal to test would add an additional layer of activity to
the return-to-duty role that has up until now involved only the MRO. If
an MRO is certified as a SAP, he could perform all functions that would
be required under the proposed regulations. This would entail
certifying a test result as a negative/positive drug test. If a test is
confirmed as positive or an individual refuses to take a test, the MRO
could perform the SAP evaluation to determine what treatment, if any,
is needed. Then, the MRO could schedule the return-to-duty test and
follow-up testing. However if the MRO is not certified as a SAP, the
MRO would continue to certify a test result but in the event of a
positive test or refusal to take a test, the MRO would have to refer
the employee to a SAP for evaluation and treatment. The SAP would
consult with the MRO when scheduling the return-to-duty test and the
follow-up testing.
RSPA currently defines ``employee'' in its drug testing regulations
as a person who performs on a pipeline or Liquefied Natural Gas (LNG)
facility an operating, maintenance, or emergency-response function
regulated by part 192, 193, or 195. In addition, RSPA has published
guidance material using and defining the terms ``covered employee'' and
``covered function.'' As used in the guidance, a ``covered employee''
means ``employee.'' RSPA proposes to substitute the word ``employee''
with the term ``covered employee'' in the definition section of the
drug testing regulations (199.3), and proposes to add the definition of
``covered function.'' In the RSPA alcohol testing regulations these
terms are already defined in Sec. 199.205, ``Definitions.'' RSPA has
determined that there is a need to make these definitions part of
Sec. 199.3 for clarification purposes and for consistency between the
RSPA drug and alcohol testing regulations. The proposed changes would
enable pipeline operators to know the accurate meaning of these phrases
and how they pertain to the drug and alcohol testing regulations.
Regulatory Analyses and Notices
Executive Order 12866 and DOT Regulatory Policies and Procedures
This proposal requires that pipeline employees who either test
positive for
[[Page 44252]]
prohibited drugs or refuse to be tested must be evaluated by a
substance abuse professional (SAP) who could require that an employee
undergo rehabilitation prior to the employee's return to duty in a
covered function. The reason for this rule change is to conform RSPA's
drug testing program to its alcohol testing program as well as the drug
and alcohol testing programs of all other DOT modes.
RSPA concluded that because all pipeline companies already employ
SAPs for their alcohol testing programs it is likely the same
professional will be used to perform this same function on the drug
testing program. Further, this proposal requires that employees who
test positive could be required to undergo rehabilitation before their
return to duty. RSPA, however, does not require that the employer pay
for this treatment. Many employees may also be terminated or placed in
non-covered functions rather than be given the opportunity for
treatment. Therefore, the cost of the treatment is not the financial
responsibility of the employer. Another factor that was taken into
account is the fact that the most recent drug testing results show that
only 0.8% of the employees tested positive for drugs. Therefore, the
number of employees who would need to be evaluated by a SAP is minimal.
Given the fact that pipeline companies already employ or presently
contract with SAPs, they are not required to pay for nor offer
rehabilitation for employees who test positive, and that a minimal
number of employees would require evaluation, RSPA believes that this
rule will have little to no economic impact on any pipeline company.
RSPA finds that this rule is not significant under section 3(f) of
Executive Order 12866 and also not significant under the Regulatory
Policies and Procedures of the Department of Transportation.
Executive Order 12612
This regulation would not have substantial direct effect on states,
on the relationship between the Federal Government and the states, or
on the distribution of power and responsibilities among the various
levels of Government. Therefore, in accordance with Executive Order
12612 (52 FR 41685; October 30, 1987), RSPA has determined that this
regulation would not have sufficient federalism implications to warrant
preparation of a federalism assessment.
Regulatory Flexibility Act
Because this rule will require little to no additional cost to
pipeline operators (see discussion on the regulatory evaluation) RSPA
certifies under section 605 of the Regulatory Flexibility Act (5
U.S.C.) that this rule will not have a significant economic impact on a
substantial number of small entities.
Paperwork Reduction Act
There are no new information collection requirements in this rule.
Unfunded Mandates Reform Act of 1995
This rule does not impose unfunded mandates under the Unfunded
Mandates Reform Act of 1995. It does not result in costs of $100
million or more to either State, local, or tribal governments, in the
aggregate, or to the private sector, and is the least burdensome
alternative that achieves the objective of the rule.
List of Subjects in 49 CFR Part 199
Drug testing, Pipeline safety.
In consideration of the foregoing RSPA proposes to amend, 49 CFR
part 199 as follows:
PART 199--[AMENDED]
1. The authority citation for part 199 continues to read as
follows:
Authority: 49 App. U.S.C. 60101 et seq.; 49 CFR 1.53.
2. Section 199.3 would be amended by revising the definition of
``employee'' and adding a new definition of ``covered function'' to
read as follows:
Sec. 199.3 Definitions.
* * * * *
Covered employee means a person who performs on a pipeline or LNG
facility an operations, maintenance, or emergency-response function
regulated by part 192, 193, or 195 of this chapter. This does not
include clerical, truck driving, accounting, or other functions not
subject to part 192, 193, or 195 of this chapter. The person may be
employed by the operator, be a contractor engaged by the operator, or
be employed by such a contractor.
Covered function means an operations, maintenance, or emergency-
response function conducted on the pipeline or LNG facility that is
regulated by Part 192, 193, or 195.
* * * * *
3. Section 199.11 would be amended by revising paragraph (e) to
read as follows:
Sec. 199.11 Drug tests required.
* * * * *
(e) Return to duty testing. A covered employee who refuses to take
or does not pass a drug test may not return to duty in the covered
function until the covered employee has been evaluated by a substance
abuse professional, and has properly followed any prescribed
rehabilitation program. The covered employee shall be subject to
unannounced follow-up drug tests administered by the operator following
the covered employee's return to duty. The number and frequency of such
follow-up testing shall be determined by a substance abuse
professional, but shall consist of at least six tests in the first 12
months following the covered employee's return to duty. In addition,
follow-up testing may include testing for alcohol as directed by the
substance abuse professional, to be performed in accordance with 49 CFR
part 40. Follow-up testing shall not exceed 60 months from the date of
the covered employee's return to duty. The substance abuse professional
may terminate the requirement for follow-up testing at any time after
the first six tests have been administered, if the substance abuse
professional determines that such testing is no longer necessary.
4. Section 199.15 would be amended by revising paragraph (d)(2) and
adding new paragraphs (e) and (f) to read as follows:
Sec. 199.15 Review of drug testing results.
* * * * *
(d) * * *
(2) If the MRO determines, after appropriate review, that there is
no legitimate medical explanation for the confirmed positive test
result other than the unauthorized use of a prohibited drug, the MRO
shall require that the covered employee who engages in conduct
prohibited under Sec. 199.9 shall be evaluated by a substance abuse
professional who shall determine what assistance, if any, the covered
employee needs in resolving problems associated with illegal drug use.
* * * * *
(e) Evaluation and rehabilitation may be provided by the operator,
by a substance abuse professional under contract with the operator, or
by a substance abuse professional not affiliated with the operator. The
choice of substance abuse professional and assignment of costs shall be
made in accordance with the operator/employee agreements and operator/
employee policies.
(f) The operator shall ensure that a substance abuse professional
who determines that a covered employee requires assistance in resolving
programs with drug abuse does not refer the covered employee to the
substance abuse professional's private practice or to a person or
organization from which the substance abuse professional receives
remuneration or in which the
[[Page 44253]]
substance abuse professional has a financial interest. This paragraph
does not prohibit a substance abuse professional from referring a
covered employee for assistance provided through:
(1) A public agency, such as a State, county, or municipality;
(2) The operator or a person under contract to provide treatment
for drug problems on behalf of the operator;
(3) The sole source of therapeutically appropriate treatment under
the employee's health insurance program, or
(4) The sole source of therapeutically appropriate treatment
reasonably accessible to the employee.
Issued in Washington, DC, on August 13, 1997.
Kelley S. Coyner,
Acting Administrator.
[FR Doc. 97-22048 Filed 8-19-97; 8:45 am]
BILLING CODE 4910-60-P