[Federal Register Volume 62, Number 247 (Wednesday, December 24, 1997)]
[Rules and Regulations]
[Pages 67293-67294]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33119]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 199

[Docket No. PS-102; Amendment 199-16]
RIN 2137-AC67


Control of Drug Use and Alcohol Misuse in Natural Gas, Liquefied 
Natural Gas, and Hazardous Liquid Pipeline Operations

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

ACTION: Direct final rule.

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SUMMARY: This direct final rule amends the ``Scope and Compliance'' 
section of the Drug Testing Rules to revise the applicability 
requirement with respect to any operator whose employees are located 
outside the territory of the United States.

DATES: This direct final rule is effective on April 15, 1998. If RSPA 
does not receive any adverse comment or notice of intent to file an 
adverse comment by February 23, 1998, the rule will become effective on 
the date specified. RSPA will issue a subsequent notice in the Federal 
Register by March 16, 1998 to confirm that fact and reiterate the 
effective date. If an adverse comment is received, RSPA will issue a 
timely notice in the Federal Register to confirm that fact, and RSPA 
may withdraw the direct final rule in whole or in part. RSPA may then 
incorporate the adverse comment into a subsequent direct final rule or 
may publish a notice of proposed rulemaking.

ADDRESSES: Send comments in duplicate to the Dockets Unit, Room 8421, 
Research and Special Programs Administration, U.S. Department of 
Transportation, 400 Seventh Street, SW, Washington, DC 20590. Please 
identify the docket and amendment number stated in the heading of this 
notice. All comments and docketed material will be available for 
inspection and copying in Room 8421 between 8:30 a.m. and 5:00 p.m. 
each business day.

FOR FURTHER INFORMATION CONTACT: Catrina 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]. Information is also available on the 
Office of Pipeline Safety's internet home page at OPS.dot.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    On November 21, 1988, RSPA, along with other operating 
administrations of the Department of Transportation, adopted 
regulations requiring pre-employment, post-accident, reasonable cause, 
and random drug testing (53 FR 47084).
    The drug testing required by these rules applies to some persons 
located outside of the United States. However, the rule provided that 
drug testing would not apply to any person for whom compliance would 
violate the domestic laws or policies of another country. The rule 
provided that 49 CFR part 199 would not be effective until January 1, 
1990, with respect to any person for whom a foreign government contends 
that application of the rule raises questions of compatibility with the 
country's laws or policies.
    At the same time, RSPA stated that the Department of Transportation 
and other elements of the U.S. Government would enter into discussions 
with foreign governments to attempt to resolve any conflict between our 
rules and foreign government laws or policies. If as a result of those 
discussions an amendment to the rules

[[Page 67294]]

was necessary, we committed to issue an amendment by December 1, 1989.
    On April 13, 1989, RSPA published an amendment to part 199 (Amdt. 
No. 199-1; 54 FR 14922) which provided that the rules would not be 
effective until January 1, 1991, with respect to persons with a foreign 
law conflict. Similar amendments were published on December 27, 1989, 
extending the effective date to January 2, 1992 (Amdt. No. 199-3; 54 FR 
53290), April 24, 1991, extending the date to January 2, 1993 (Amdt. 
No. 199-5; 56 FR 18986), and July 14, 1992, extending the date to 
January 2, 1995 (Amdt. No. 199-7; 57 FR 31279). These amendments 
provided additional time for government-to-government discussions to 
reach a permanent resolution of this issue.
    RSPA has revisited the issue of requiring foreign operators to drug 
test persons located outside of the United States who are performing 
covered functions. Due to the complexity of the legal issues, RSPA has 
determined that it would be a better use of agency resources to 
concentrate its enforcement efforts on operators whose employees are 
located within U.S. territory including the outer continental shelf. 
There are few pipeline employees who would be excepted by this rule. 
Because of the legal issues, these employees have never been subject to 
drug or alcohol testing by RSPA.

II. Regulatory Analyses and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This amendment will alleviate the burden for pipeline operators 
whose employees are located outside the territory of the United States 
to comply with the requirement to subject those employees who perform a 
covered function (such as, SCADA system operators) to the drug testing 
regulations. Currently, there are approximately 50 covered employees 
performing a covered function who are located in Canada. Most pipelines 
that run from Canada to the United States have either a metering 
facility or valves located at the border. This delineates a separation 
of entities at the border. At that point, a U.S. operator becomes 
responsible for the pipeline (i.e., operations, maintenance, and 
emergency-response functions). At this time, there are no SCADA systems 
located in Mexico. There are pipelines that run from Mexico to the 
U.S., but the SCADA control system is located in the U.S. Because of 
the minimal number of operators with employees who perform covered 
functions outside of the United States, RSPA concludes that it would 
not be cost effective for those pipeline operators to comply with this 
regulation. In addition, RSPA does not have sufficient resources to 
inspect these operators to ensure that they are complying with part 
199. Therefore, this part of the regulation is being revised to exclude 
pipeline operators with employees located outside United States' 
territory, including the outer continental shelf.
    This amendment is non-major under Executive Order 12866, and is not 
considered significant under DOT Regulatory Policy and Procedures (44 
FR 22034; February 26, 1979). There is no additional cost to the 
pipeline operators to delete this portion of the rule. This change does 
not warrant the preparation of a Regulatory Evaluation.

Executive Order 12612

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 12612 (``Federalism''), and 
RSPA has determined that preparation of a federalism assessement is not 
warranted.

Regulatory Flexibility Act

    Based on the above facts, I certify under Section 606 of the 
Regulatory Flexibility Act that this amendment does not have a 
significant impact on a substantial number of small entities.

Paperwork Reduction Act

    This final rule does not impose any new information collection 
requirements.

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

    Alcohol testing, Drug testing, Pipeline safety.

    In consideration of the foregoing, RSPA is amending 49 CFR as 
follows:

PART 199--DRUG AND ALCOHOL TESTING

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

    Authority: 49 U.S.C. 5103, 60102, 60104, 60108, 60117, and 
60118; 49 CFR 1.53.


Sec. 199.1  [Amended]

    2. Paragraph (d) of Sec. 199.1 is revised to read as follows:


Sec. 199.1  Scope and compliance.

* * * * *
    (d) This part applies to pipeline operators, only with respect to 
pipeline employees located within the territory of the United States, 
including those employees located within the limits of the outer 
continental shelf as that term is defined in the Outer Continental 
Shelf Lands Act (43 U.S.C. 1331).

    Issued in Washington, D.C. on December 10, 1997.
Kelley S. Coyner,
Acting Administrator.
[FR Doc. 97-33119 Filed 12-23-97; 8:45 am]
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