[Federal Register Volume 63, Number 51 (Tuesday, March 17, 1998)]
[Rules and Regulations]
[Pages 12998-13000]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-6859]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 199

[RSPA Docket PS-128; Amendment 199-15]
RIN 2137-AC84


Drug and Alcohol Testing; Substance Abuse Professional Evaluation 
for Drug Use

AGENCY: Research and Special Programs Administration, DOT.

ACTION: Final rule.

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SUMMARY: In this final rule, the Research and Special Programs 
Administration (RSPA) modifies current procedures in its drug testing 
regulations by requiring a face-to-face evaluation by substance abuse 
professionals (SAP) for 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 a pipeline employee to complete a 
rehabilitation program before being eligible to return to duty. Similar 
requirements are included in the drug testing regulations of the other 
modal administrations. Adding these requirements will ensure conformity 
among the modal administrations which will assist with the overall 
management of RSPA's drug testing regulations.

DATES: This rule is effective April 16, 1998.

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:

Background

    In accordance with 49 U.S.C. 60601 of the pipeline safety law, RSPA 
administers drug testing regulations for pipeline operators.
    On August 20, 1997, RSPA published in the Federal Register (62 FR 
44250, Docket No. PS-128, Amendment 15) a notice of proposed rulemaking 
to modify current procedures in its drug testing regulations governing 
situations in which pipeline employees test positive on a drug test. 
Because similar requirements are found in the drug testing regulations 
of the other modal administrations, and in RSPA's alcohol testing 
regulations, RSPA proposed to make the procedures and policy in those 
regulations applicable to pipeline operators under the drug testing 
regulations. RSPA proposed to require pipeline operators to utilize a 
substance abuse professional (SAP) 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, if needed. RSPA also proposed to revise the word ``employee'' to 
``covered employee'' and to add the definition for ``covered 
function.'' Comments to the notice of proposed rulemaking were due on 
or before October 20, 1997.

Comments Received

    RSPA received 10 comments: 6 from pipeline operators, 1 from a 
trade association and 3 from consortia. The comments fell within the 
following general categories: (1) Review of Drug Testing Results; (2) 
Drug Test Required--Return to Duty Testing; (3) SAP Determines Follow-
up Testing; (4) Qualification for a SAP; and (5) Other Comments. The 
comments are addressed based on those categories.

1. Review of Drug Testing Results

    The notice of proposed rulemaking proposed that if the Medical 
Review Officer (MRO) determines, after appropriate review, that there 
is no legitimate medical explanation for the confirmed positive test 
result, other than the unauthorized use of prohibited drug(s), the MRO 
shall verify the test result as positive. If unauthorized use is

[[Page 12999]]

found, the MRO shall require that the covered employee who engages in 
conduct prohibited under Section 199.9, be evaluated face-to-face by a 
substance abuse professional who shall determine what assistance, if 
any, the covered employee needs in resolving problems associated with 
illegal drug use.
    All ten commenters supported this portion of the notice of proposed 
rulemaking. They stated that they were already performing this function 
for employees that are covered by another operating administration. 
They also said that conformity among the modes would make administering 
this program much easier.
    RSPA received 2 comments on the continued employment of a covered 
employee after a positive drug test result or a refusal to test. In 
addressing the concerns of these commenters, RSPA has decided to change 
the language so that the MRO, not only must refer the covered employee 
to a SAP, but must also refer him/her to the personnel or 
administrative officer for the pipeline operator. This will enable the 
operator to follow through with internal proceedings that are in 
accordance with the operator's anti-drug plan.

2. Drug Test Required--Return To Duty Testing

    The notice proposed language in Section 199.11(e) which stated that 
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 SAP, and has properly followed any prescribed 
rehabilitation program.
    We received 3 comments to review and clarify the language in this 
section. The first commenter was concerned that the proposed language 
creates the inference that a covered employee who refuses to take a 
drug test or who does not pass a drug test has a right to return to 
work upon evaluation by a SAP. Specifically, the concern was that the 
wording may have the unintended effect of altering the employer/
employee relationship and requiring an employer to provide a 
rehabilitation opportunity to an employee, with that employee 
thereafter having a right to return to work for the employer. The 
second commenter wanted RSPA to clarify that the evaluation conducted 
by the SAP would be done on a face-to-face basis. The third commenter 
requested clarification of the ``pass or fail'' language.
    RSPA agrees with the three comments and is revising the phrasing of 
the language in Section 199.11(e) along with the previously mentioned 
change in Section 199.15(d)(2). This will not alter the existing 
employer/employee relationship and will not require that the employer 
provide rehabilitation to an employee. RSPA is also clarifying that the 
SAP evaluation must be conducted on a face-to-face basis, and has 
changed the language to use ``positive or negative.''
    One comment suggested that the follow-up testing requirements be 
separated from the return-to-duty requirements. RSPA has modified 
Section 199.11 to add Follow-Up Testing under a new subsection (f).

3. SAP Determines Follow-up Testing

    RSPA received 2 comments requesting clarification of the language 
on the role of the MRO in relation to the SAP when determining the 
follow-up testing schedule. After further consideration, RSPA has 
agreed to remove the consultation requirement between the MRO and the 
SAP when determining the follow-up testing schedule. The role of 
determining the follow-up testing schedule will be the sole function of 
the SAP.

4. Qualifications for a SAP

    RSPA received 1 comment requesting specific language on an MRO's 
ability to serve as a SAP. This change is not necessary because the 
definition of a SAP, found in 49 CFR Part 40, does not prohibit an MRO 
from becoming a SAP.

5. Other Comments

    RSPA received 2 comments from pipeline operators requesting changes 
in parts of the regulations that were not covered by the notice of 
proposed rulemaking, such as, substituting a 72 hour time period for 
the 60 day time period requirement, eliminating the RSPA option for the 
pipeline operator to require payment in advance for a retest, and 
eliminating the RSPA requirement for an MRO to declare a specimen 
negative that has been determined to be scientifically insufficient.
    RSPA received 1 comment requesting clarification on whether a 
positive pre-employment test result necessitates return-to-duty and 
follow-up testing. RSPA currently addresses this in Section 199.11(a). 
It states that no operator may hire or contract any person unless that 
person passes a drug test or is covered by an anti-drug program that 
conforms to the requirements of the drug testing regulations.

Advisory Committee Review

    The Technical Hazardous Liquid Pipeline Safety Standards Committee 
(THLPSSC) and the Technical Pipeline Safety Standards Committee (TPSSC) 
met on November 18, 1997, to consider the items discussed in the August 
20, 1997, Notice of Proposed Rulemaking, in Docket No. PS-128. (The 
THLPSSC and TPSSC were established by statute to evaluate the technical 
feasibility, reasonableness, and practicability of proposed 
regulations.) The consensus of the THLPSSC and TPSSC was to support the 
Notice of Proposed Rulemaking.

Regulatory Analyses and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule requires that pipeline employees who either test 
positive for 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. Furthermore, this final rule 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 that the most recent drug testing results show that only 
0.7% 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 or 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.

[[Page 13000]]

Executive Order 12612

    This final rule 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 
final rule would not have sufficient federalism implications to warrant 
preparation of a federalism assessment.

Regulatory Flexibility Act

    Because this final rule will impose little to no additional cost on 
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 final 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 amends, 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 is amended by removing the definition of Employee 
and adding new definitions of Covered employee and 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. 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 is amended by revising paragraph (e) and adding 
paragraph (f) to read as follows:


Sec. 199.11  Drug tests required.

* * * * *
    (e) Return to duty testing. A covered employee who refuses to take 
or has a positive drug test may not return to duty in the covered 
function until the covered employee has had a face-to-face evaluation 
conducted by a substance abuse professional, and has properly followed 
any prescribed assistance.
    (f) Follow-up testing. A covered employee who refuses to take or 
has a positive drug test 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 is 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 refer:
    (i) The individual tested to a personnel or administrative office 
for further proceedings in accordance with the operator's anti-drug 
plan; and
    (ii) For evaluation by a SAP who shall determine what assistance, 
if any, the employee needs in resolving problems associated with drug 
misuse.
* * * * *
    (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 
problems 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 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 March 11, 1998.
Kelley S. Coyner,
Acting Administrator.
[FR Doc. 98-6859 Filed 3-16-98; 8:45 am]
BILLING CODE 4910-60-P