[Federal Register Volume 66, Number 83 (Monday, April 30, 2001)]
[Proposed Rules]
[Pages 21506-21511]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-9412]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 199

[Docket No. RSPA-00-8417; Notice 1]
RIN 2137-AD55


Drug and Alcohol Testing for Pipeline Facility Employees

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: We propose to conform the pipeline facility drug and 
alcohol testing regulations with corresponding DOT regulations 
(Procedures for Transportation Workplace Drug and Alcohol Testing 
Programs). We also propose miscellaneous changes to the pipeline 
facility drug and alcohol testing regulations to make them easier to 
apply and understand. The proposals are intended to ensure the pipeline 
facility drug and alcohol testing regulations are clear and consistent 
with the DOT regulations.

DATES: Persons interested in submitting written comments on the 
proposed rules must do so by June 14, 2001. Late filed comments will be 
considered so far as practicable.

ADDRESSES: You may submit written comments by mailing or 
delivering an original and two copies to the Dockets Facility, U.S. 
Department of Transportation, Room PL-401, 400 Seventh Street, SW., 
Washington, DC 20590-0001. The Dockets Facility is open from 10:00 a.m. 
to 5:00 p.m., Monday through Friday, except on Federal holidays when 
the facility is closed. Or you may submit written comments to the 
docket electronically at the following Web address: http://dms.dot.gov. 
See the SUPPLEMENTARY INFORMATION section for additional filing 
information.

FOR FURTHER INFORMATION CONTACT: L. M. Furrow by phone at 202-
366-4559, by fax at 202-366-4566, by mail at U.S. Department of 
Transportation, 400 Seventh Street, SW., Washington, DC, 20590, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

Filing Information, Electronic Access, and General Program 
Information

    All written comments should identify the docket and notice numbers 
stated in the heading of this notice. Anyone who wants confirmation of 
mailed comments must include a self-addressed stamped postcard. To file 
written comments electronically, after logging onto http://dms.dot.gov, 
click on ``Electronic Submission.'' You can read comments and other 
material in the docket at this Web address: http://dms.dot.gov. General 
information about our pipeline safety program is available at this 
address: http://ops.dot.gov.

Background

    On April 29, 1996, DOT issued an advance notice of proposed 
rulemaking (61 FR 18713) concerning changes to its regulations called 
Procedures for Transportation Workplace Drug and Alcohol Testing 
Programs (49 CFR Part 40). These regulations prescribe requirements 
applicable to all employers who must conduct drug and alcohol testing 
under separate regulations administered by DOT agencies such as RSPA. 
Subsequently, on December 9, 1999, DOT issued a notice of proposed 
rulemaking (64 FR 69076) to change Part 40 comprehensively. The Final 
Rule document revising Part 40 has now been published (65 FR 79462; 
December 19, 2000). Consequently, we are proposing to amend the drug 
and alcohol testing regulations for pipeline facilities (49 CFR Part 
199) to conform them to revised Part 40.

Common Preamble

    Elsewhere is today's Federal Register, DOT is publishing a 
preamble related to the notices of proposed rulemaking that RSPA and 
other DOT agencies are publishing to conform their drug and alcohol 
testing regulations to revised Part 40. This common preamble provides 
an overview of the issues involved.

Proposed Amendments to Part 199

Structure and Organization

    When the rules in Subpart B-Alcohol Misuse Prevention Program were 
added

[[Page 21507]]

to Part 199, the drug testing requirements in Sec. Sec. 199.1 through 
199.25 were designated as Subpart A. However, Sec. 199.1, ``Scope and 
compliance,'' Sec. 199.3, ``Definitions,'' and Sec. 199.5, ``DOT 
procedures,'' are relevant to Part 199 in general. So we propose to 
designate Sec. 199.1 through Sec. 199.5 as Subpart A--General. Sections 
199.7 through 199.25 would be designated as Subpart B--Drug Testing and 
redesignated as Sec. Sec. 199.101 through 199.119, respectively. The 
heading ``Subpart B-Alcohol Misuse Prevention Program'' would be 
redesignated as ``Subpart C--Alcohol Misuse Prevention Program.''
    Another section that relates to Part 199 in general is 
Sec. 199.207, ``Preemption of state and local laws.'' We propose to 
transfer this section to Subpart A--General as Sec. 199.7.
    In Sec. 199.1, the first sentence of paragraph (a) would be revised 
to state that the scope of Part 199 includes both drug and alcohol 
testing. And the second sentence of paragraph (a), concerning the 
exclusion from Part 199 of master meter and petroleum gas systems, 
would be clarified and transferred to new Sec. 199.2. In view of these 
proposed changes concerning the scope and applicability of Part 199 in 
general, Sec. 199.201, concerning the applicability of Subpart B, would 
be removed as superfluous.
    Sections 199.1(b) and 199.213, which provide compliance dates, 
would be removed because the dates have expired.
    The first sentence of Sec. 199.5 now provides that the ``anti-drug 
program'' required by Part 199 must be conducted according to the 
requirements of Part 199 and DOT Procedures (or 49 CFR part 40). To 
make this sentence apply to the Part 199 alcohol program as well, we 
propose to change ``anti-drug program'' to ``anti-drug and alcohol 
programs.'' In view of this proposed change, Sec. 199.203, which makes 
DOT Procedures applicable to alcohol tests under Part 199, would be 
removed as superfluous. The definition of ``DOT Procedures'' in 
Sec. 199.3 would be revised similarly.
    Under Sec. 199.9(b)(2) [or redesignated Sec. 199.103(b)(2)], a 
medical review officer's recommendation for return to duty is one of 
three conditions an employee must meet to escape the consequences of 
failing or refusing a drug test. We propose to make this condition 
consistent with Sec. 199.11(e) [or redesignated Sec. 199.105(e)] and 
DOT Procedures. First, the reference to the medical review officer's 
recommendation for return to duty would be deleted. Under Part 40 
substance abuse professionals, not medical review officers, play the 
lead role in the return to duty process. Secondly, this point would be 
emphasized by adding that a substance abuse professional must have 
determined that the employee has successfully completed any required 
education or treatment.
    Sections 199.225(a)(2)(ii) and 199.225(b)(4)(ii) require operators 
to submit certain post-accident and reasonable-suspicion test records 
for the years 1995, 1996, and 1997. Because the deadlines for 
compliance with these reporting requirements have expired, we propose 
to remove Sec. Sec. 199.225(a)(2)(ii) and 199.225(b)(4)(ii).

Definitions

    The definitions in Part 199 are now stated in two sections: 
Sec. Sec. 199.3 and 199.205. To make it easier to find and use Part 199 
definitions and to eliminate unnecessary repetition within Part 199 and 
with Part 40, we propose to transfer to Sec. 199.3 those definitions in 
Sec. 199.205 that are not duplicated in either Sec. 199.3 or Part 40. 
Section 199.205 would then be removed.
    Section 199.205 contains definitions of the following terms that 
also are defined in Sec. 199.3: accident, administrator, covered 
employee, covered function, operator, and state agency. The proposed 
transfer would make this repetition unnecessary. In addition, 
Sec. 199.205 defines the following terms that also are defined in 49 
CFR 40.3: alcohol, alcohol concentration, alcohol use, confirmation 
test, consortium, DOT agency, employer, and screening test. Because 
Sec. 199.5 provides that terms and concepts used in Part 199 have the 
same meaning as in Part 40, it is unnecessary to transfer these 
definitions to Sec. 199.3. Consequently, only definitions of the 
following two terms in Sec. 199.205 would be transferred to Sec. 199.3: 
performing a covered function, and refuse to submit to an alcohol test. 
The definition of ``performing a covered function'' would be revised 
for clarity.
    The definitions of ``covered employee'' and ``covered function'' 
included in Sec. Sec. 199.3 and 199.205 may be unclear because similar 
terms are used in both definitions. So we propose to clarify these 
definitions. The term ``covered employee'' (and ``employee'' or 
``individual to be tested'') would be defined as a person who performs 
a covered function, including persons employed by operators, 
contractors engaged by operators, and persons employed by such 
contractors. The term ``covered function'' would be defined as an 
operations, maintenance, or emergency-response function regulated by 
[49 CFR] part 192, 193, or 195 that is performed on a pipeline or LNG 
facility. The statement in the present definition of ``covered 
employee'' that covered functions do not include clerical, truck 
driving, accounting, or other functions not subject to part 192, 193, 
or 195 would be deleted as unnecessary.
    The definition of ``prohibited drug'' in Sec. 199.3 would be 
revised by removing the second sentence, which authorizes operators, 
under certain conditions, to test for drugs other than marijuana, 
cocaine, opiates, amphetamines, and phencyclidine. This revision is 
necessary because specimens collected for purposes of drug testing 
under Part 199 may not be tested for any other drugs (49 CFR 40.85). As 
indicated by 49 CFR 40.13, operators may collect other specimens to 
test for other drugs.
    The definition of ``refuse to submit'' in Sec. 199.3 would be 
clarified to explain that it applies equally to the terms ``refuse'' 
and ``refuse to take'' a drug test. Moreover, the definition would be 
revised to refer to DOT procedures on refusal to take a drug test (49 
CFR 40.191(b)). Under these procedures, refusal to take a drug test 
includes submission of an adulterated or substituted specimen. The 
definition would be further revised to include a similar definition 
proposed to be transferred from Sec. 199.205 regarding alcohol testing 
and to refer to DOT procedures on refusal to take an alcohol test (49 
CFR 40.261).

Enforcing DOT Procedures

    Part 199 refers to the drug and alcohol testing procedures in Part 
40 as ``DOT Procedures'' and incorporates these procedures by reference 
(Sec. 199.5). Our practice is to enforce compliance with Part 40 as if 
it were a Part 199 regulation. To remove any uncertainty about this 
enforcement practice, we propose to amend Sec. 199.5 to make it clear 
that a violation of Part 40 is a violation of Part 199. In addition, to 
further the enforceability of Part 40, we propose to remove from 
Sec. 199.5 the statement that in the event of conflict with Part 40, 
Part 199 prevails. If there is a substantive difference between Part 40 
and Part 199, we will state the difference explicitly in Part 199.

Drug Tests Required

    DOT Procedures (49 CFR 40.61) cover the appropriate steps to 
collect urine specimens from employees who need medical attention. 
Moreover, Sec. 40.61(b)(3) specifically forbids collection from an 
unconscious employee. Therefore, we propose to delete the following 
sentence from

[[Page 21508]]

Sec. 199.11(b) [or redesignated Sec. 199.105(b)]: ``If an employee is 
injured, unconscious, or otherwise unable to evidence consent to the 
drug test, all reasonable steps must be taken to obtain a urine 
sample.''
    Section 199.11(e) prescribes the role of a substance abuse 
professional in returning to duty a covered employee who refuses or 
fails a drug test. For consistency with Part 40, Sec. 199.11(e) [or 
redesignated Sec. 199.105(e)] would be revised to refer to DOT 
Procedures.

Medical Review Officers

    Section 199.15(b) loosely defines the qualifications required of a 
medical review officer (MRO). To assure consistency and compliance with 
the detailed MRO qualifications stated in 49 CFR 40.121, we propose to 
revise Sec. 199.15(b) [or redesignated Sec. 199.109(b)] to refer to 
those qualifications.
    Section 199.15(c) states a few functions of medical review 
officers, focusing primarily on the review of positive and negative 
test results. In contrast, Part 40 covers MRO functions 
comprehensively, including the review of reports of tests not performed 
for reasons including adulterated or substituted specimens. Therefore, 
we propose to amend Sec. 199.15(c) [or redesignated Sec. 199.109(c)] to 
state that the MRO must provide functions for the operator as required 
by DOT Procedures.
    Section 199.15(d)(1) provides that MROs are not required to take 
further action if they determine there is a legitimate medical 
explanation for a confirmed positive test result other than the 
unauthorized use of prohibited drugs. However, Part 40 does require 
MROs to take further action in these circumstances. Under Sec. 40.163, 
MROs must report all test results to employers. Also, Sec. 199.15(d)(2) 
is jumbled and could be misinterpreted to require MROs to refer 
individuals with verified positive test results to a substance abuse 
professional, when under Part 40 employers make such referrals. So we 
propose to amend Sec. 199.15(d) [or redesignated Sec. 199.109(d)] to 
state that MROs must report all test results to operators in accordance 
with DOT Procedures. Because other Part 40 requirements describe what 
employers must do after receiving MRO reports, the existing provisions 
in Sec. 199.15(d) regarding further proceedings and evaluation by a 
substance abuse professional would be deleted as superfluous.

Retention of Samples and Retesting

    Under Sec. 199.17(b), if an MRO determines there is no legitimate 
medical explanation for a confirmed positive test result other than the 
unauthorized use of a prohibited drug, the ``original sample'' must be 
retested if the employee makes a written request for retesting within 
60 days of receipt of the final test result from the MRO. This 
provision is inconsistent with 49 CFR 40.153(b), which allows employees 
only 72 hours to make a timely request for an additional test, and the 
request need not be in writing. So we propose to revise Sec. 199.17(b) 
[or redesignated Sec. 199.111(b)] to require additional testing if the 
employee makes a timely request for additional testing according to DOT 
Procedures.
    Revised Part 40 requires split specimen collections (49 CFR 
40.71(a)). And the reference to DOT Procedures in Sec. Sec. 199.5 and 
199.7 will make split specimen collections mandatory under Part 199. 
Under the Part 40 split specimen collection process, employers divide 
each collected urine specimen into a primary specimen and a split 
specimen. If a covered employee requests additional testing, Part 40 
requires that the test be done only on the split specimen (49 CFR 
40.153).
    In view of this requirement, we are concerned about the 
appropriateness of the term ``original sample'' in Sec. 199.17(b). We 
believe ``original sample'' could be misunderstood to mean ``primary 
specimen.'' We propose to amend Sec. 199.17(b) [or redesignated 
Sec. 199.111(b)] to indicate that the split specimen must be tested 
when a covered employee requests additional testing. Also, since the 
concept of ``retesting'' is no longer suitable under this section, the 
term would be dropped and replaced by ``testing'' or ``additional 
testing''.

Pre-Employment Alcohol Testing

    Part 199 does not require operators to conduct pre-employment tests 
for alcohol. However, Sec. 199.209 makes it clear that Part 199 does 
not affect the authority of operators to conduct tests for alcohol that 
are not required by Part 199. We are proposing to amend Sec. 199.209 to 
require that if operators conduct pre-employment tests for alcohol, the 
tests must be done according to DOT Procedures.

Stand-Down Waivers

    Revised Part 40 prohibits employers from temporarily removing 
employees from performing safety-sensitive functions based on an 
unverified positive drug test result (49 CFR 40.21(a)). At the same 
time, Part 40 permits employers to petition DOT agencies to waive this 
stand-down restriction (49 CFR 40.21(b)). To facilitate this waiver 
process, we are proposing a new procedural rule, Sec. 199.9, for 
operators to follow when seeking from RSPA a waiver of the Part 40 
stand-down restriction. The proposed rule advises operators how they 
should prepare stand-down waiver requests and to whom the requests 
should be sent.

Checking Previous Test Results

    Under revised Part 40, employers may not hire or use any person in 
a safety-sensitive position unless they seek to obtain from previous 
DOT-regulated employers of the person certain drug and alcohol testing 
information (49 CFR 40.25). To call attention to this new requirement, 
we propose to refer to it in new Sec. 199.11. In addition, consistent 
with Sec. 40.25, we propose to require operators to remove employees 
from covered functions, pending successful completion of the return-to-
duty process, if after reviewing the information the operator learns 
the employee violated a DOT agency drug or alcohol testing rule.

Release of Information

    New Part 40 authorizes employers to release employee-specific drug 
and alcohol testing information without the employee's consent in 
connection with certain legal proceedings (Sec. 40.323). However, 
Sec. 199.23(b) does not permit releases of drug information in legal 
proceedings without employee consent. And although Sec. 199.231(g) 
permits releases of alcohol information without employee consent in 
certain legal proceedings, Sec. 199.231(g) is not consistent with 
Sec. 40.323 in several respects. In addition, Sec. 199.23(b) limits the 
drug test information operators must furnish RSPA or a state pipeline 
safety agency regardless of employee consent to information related to 
accident investigations. A similar limitation is not in Sec. 199.231(d) 
governing the release to RSPA and state agencies of alcohol test 
information, nor is it in Sec. 40.331 governing the release of name-
specific alcohol and drug information to DOT and state agencies. 
Consequently, we propose to amend Sec. 199.23(b) [redesignated 
Sec. 199.117(b)] to provide that operators may or are required to 
release information without the employee's consent as provided by DOT 
Procedures. Section 199.231(g) would be amended to permit releases 
without consent in legal proceedings as provided by DOT Procedures.

[[Page 21509]]

Regulatory Analyses and Notices

Executive Order 12866 and DOT Policies and Procedures

    RSPA does not consider this proposed rulemaking to be a significant 
regulatory action under Section 3(f) of Executive Order 12866 (58 FR 
51735; Oct. 4, 1993). Therefore, the Office of Management and Budget 
(OMB) has not received a copy of this rulemaking to review. RSPA also 
does not consider this proposed rulemaking to be significant under DOT 
regulatory policies and procedures (44 FR 11034: February 26, 1979).
    The proposed rules are non-significant because they would merely 
change Part 199 to conform it to revised 49 CFR part 40, which has 
already had extensive comment and analysis. The economic impacts of the 
underlying Part 40 changes were analyzed in connection with the Part 40 
rulemaking, and the proposed rules would not have any incremental 
economic impacts on their own. Regarding the clarifying and 
organizational changes we are proposing that are not directly due to 
revised Part 40, our assessment of these changes is that the economic 
impact would be too minimal to warrant the preparation of a Regulatory 
Evaluation.

Regulatory Flexibility Act

    The proposed rules are consistent with revised Part 40 and have no 
incremental economic impacts of their own. Therefore, based on the 
facts available about the anticipated impacts of this proposed 
rulemaking, I certify, pursuant to Section 605 of the Regulatory 
Flexibility Act (5 U.S.C. 605), that the proposed rules, if adopted as 
final, would not have a significant impact on a substantial number of 
small entities.

Paperwork Reduction Act

    All the information collection requirements of Part 40 have been 
analyzed and approved by OMB. These proposed rules would impose no 
information collection requirements that have not already been reviewed 
in the Part 40 rulemaking. So no further Paperwork Reduction Act review 
is necessary.

Executive Order 12612

    The proposed rules would not have a 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), we have determined that 
the proposed rules would not have sufficient federalism implications to 
warrant preparation of a federalism assessment.

Executive Order 13084

    The proposed rules have been analyzed in accordance with the 
principles and criteria contained in Executive Order 13084, 
``Consultation and Coordination with Indian Tribal Governments.'' 
Because the proposed rules would not significantly or uniquely affect 
the communities of the Indian tribal governments and would not impose 
substantial direct compliance costs, the funding and consultation 
requirements of Executive Order 13084 do not apply.

Executive Order 13132

    Revised Part 40 has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism''). The 
proposed rules have no incremental Federalism impacts for purposes of 
Executive Order 13132. So no further analysis is needed for Federalism 
purposes.

Impact on Business Processes and Computer Systems

    We do not want to impose new requirements that would mandate 
business process changes when the resources necessary to implement 
those requirements would otherwise be applied to ``Y2K'' or related 
computer problems. The proposed rules would not mandate business 
process changes or require modifications to computer systems. Because 
the proposed rules would not affect the ability of organizations to 
respond to those problems, we are not proposing to delay the 
effectiveness of the requirements.

Unfunded Mandates Reform Act of 1995

    The proposed rules would not impose unfunded mandates under the 
Unfunded Mandates Reform Act of 1995. The rules would 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 would be 
the least burdensome alternative that achieves the objective of the 
rules.

National Environmental Policy Act

    We have analyzed the proposed rules for purposes of the National 
Environmental Policy Act (42 U.S.C. 4321 et seq.). Because the 
proposed rules parallel present requirements of revised Part 40 or 
involve clarifying or organizational changes, we have preliminarily 
determined that the proposed rules would not significantly affect the 
quality of the human environment. A final determination on 
environmental impact will be made after the end of the comment period.

List of Subjects in 49 CFR Part 199

    Drug testing, Pipeline safety, Reporting and recordkeeping 
requirements, Safety, Transportation.

    In consideration of the foregoing, we propose to amend 49 CFR Part 
199 as follows:

PART 199--DRUG AND ALCOHOL TESTING

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

    Authority: 49 U.S.C. 5103, 60102, 60104, 60108, 60117, 
and 60118; 49 CFR 1.53.
    2. The heading for subpart A is revised to read as follows:

Subpart A--General

    3. In Sec. 199.1, paragraph (a) is revised, paragraph (b) is 
removed, and paragraphs (c) and (d) are redesignated as paragraphs (b) 
and (c), respectively, to read as follows:


Sec. 199.1  Scope and compliance.

    (a) This part requires operators of pipeline facilities subject to 
part 192, 193, or 195 of this chapter to test covered employees for the 
presence of prohibited drugs and alcohol.
* * * * *
    4. Section 199.2 is added to read as follows:


Sec. 199.2  Applicability.

    This part does not apply to covered functions performed on--
    (a) Master meter systems, as defined in Sec. 191.3 of this chapter; 
or
    (b) Pipeline systems that transport only petroleum gas or petroleum 
gas/air mixtures.
    5. In Sec. 199.3, the introductory text is revised, the definitions 
of ``Covered employee'' and ``Refuse to submit'' are removed, the 
definitions of ``Covered function,'' ``DOT Procedures,'' and 
``Prohibited drug'' are revised, and definitions of ``Covered employee, 
employee, or individual to be tested,'' ``Performs a covered 
function,'' and ``Refuse to submit, refuse, or refuse to take 
are added in alphabetical order, to read as follows:


Sec. 199.3  Definitions.

    As used in this part--
* * * * *
    Covered employee, employee, or individual to be tested 
means a person who performs a covered function, including persons 
employed by operators, contractors engaged by

[[Page 21510]]

operators, and persons employed by such contractors.
    Covered function means an operations, maintenance, or 
emergency-response function regulated by part 192, 193, or 195 of this 
chapter that is performed on a pipeline or LNG facility.
    DOT Procedures means the Procedures for Transportation 
Workplace Drug and Alcohol Testing Programs published by the Office of 
the Secretary of Transportation in part 40 of this title.
* * * * *
    Performs a covered function includes actually performing, 
ready to perform, or immediately available to perform a covered 
function.
* * * * *
    Prohibited drug means any of the following substances 
specified in Schedule I or Schedule II of the Controlled Substances Act 
(21 U.S.C. 812): marijuana, cocaine, opiates, amphetamines, and 
phencyclidine (PCP).
* * * * *
    Refuse to submit, refuse, or refuse to take means 
behavior consistent with DOT Procedures concerning refusal to take a 
drug test or refusal to take an alcohol test.
* * * * *
    6. Section 199.5 is revised to read as follows:


Sec. 199.5  DOT procedures.

    The anti-drug and alcohol programs required by this part must be 
conducted according to the requirements of this part and DOT 
Procedures. Terms and concepts used in this part have the same meaning 
as in DOT Procedures. Violations of DOT Procedures with respect to 
anti-drug and alcohol programs required by this part are violations of 
this part.
    6a. Subpart B is redesignated as subpart C.
    7. Existing Sec. Sec. 199.7, 199.9, 199.11, 199.13, 199.15, 199.17, 
199.19, 199.21, 199.23, and 199.25 are redesignated as 
Sec. Sec. 199.101, 199.103, 199.105, 199.107, 199.109, 199.111, 
199.113, 199.115, 199.117, and 199.119, respectively, in new subpart B, 
and a subpart B heading is added to read as follows:

Subpart B--Drug Testing

    8. New Sec. 199.9 is added to subpart A to read as follows:


Sec. 199.9  Stand-down waivers.

    (a) Each operator who seeks a waiver under Sec. 40.21 of this title 
from the stand-down restriction shall submit an application for waiver 
in duplicate to the Associate Administrator for Pipeline Safety, 
Research and Special Programs Administration, Department of 
Transportation, Washington, DC 20590.
    (b) Each application must:
    (1) Identify Sec. 40.21 of this title as the rule from which the 
waiver is sought;
    (2) Explain why the waiver is requested and describe the employees 
to be covered by the waiver;
    (3) Contain the information required by Sec. 40.21 of this title 
and any other information or arguments available to support the waiver 
requested; and
    (4) Unless good cause is shown in the application, be submitted at 
least 60 days before the proposed effective date of the waiver.
    (c) No public hearing or other proceeding is held directly on an 
application before its disposition under this section. If the Associate 
Administrator determines that the application contains adequate 
justification, he or she grants the waiver. If the Associate 
Administrator determines that the application does not justify granting 
the waiver, he or she denies the application. The Associate 
Administrator notifies each applicant of the decision to grant or deny 
an application.
    9. New Sec. 199.11 is added to subpart A to read as follows:


Sec. 199.11  Checking Previous Test Results.

    (a) As required by DOT Procedures, no operator may hire or use any 
person to perform a covered function unless the operator has sought to 
obtain from previous DOT-regulated employers of the person certain drug 
and alcohol testing information.
    (b) If, after reviewing the information, the operator learns the 
employee violated a DOT agency drug or alcohol testing rule, the 
operator shall remove the employee from covered functions, pending 
successful completion of the return-to-duty process.
    10. In redesignated Sec. 199.103, paragraph (a)(1) is amended by 
removing the term ``Sec. 199.15(d)(2)'' and adding ``DOT Procedures'' 
in its place, and by revising paragraph (b)(2) to read as follows:


Sec. 199.103  Use of persons who fail or refuse a drug test.

* * * * *
    (b) * * *
    (2) Been considered by the medical review officer in accordance 
with DOT Procedures and been determined by a substance abuse 
professional to have successfully completed required education or 
treatment; and
* * * * *
    11. In redesignated Sec. 199.105, paragraph (b) is revised, 
paragraphs (c)(3) and (c)(4) are amended by removing the term 
``Sec. 199.25'' and adding ``Sec. 199.119'' in its place wherever the 
term appears, and paragraph (e) is revised, to read as follows:


Sec. 199.105  Drug tests required.

* * * * *
    (b) Post-accident testing. As soon as possible but no later 
than 32 hours after an accident, an operator shall drug test each 
employee whose performance either contributed to the accident or cannot 
be completely discounted as a contributing factor to the accident. An 
operator may decide not to test under this paragraph but such a 
decision must be based on the best information available immediately 
after the accident that the employee's performance could not have 
contributed to the accident or that, because of the time between that 
performance and the accident, it is not likely that a drug test would 
reveal whether the performance was affected by drug use.
* * * * *
    (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 complied with DOT 
Procedures on return to duty and the role of a substance abuse 
professional.
* * * * *
    12. In redesignated Sec. 199.109, paragraphs (b), (c), and (d) are 
revised to read as follows:


Sec. 199.109  Review of drug testing results.

* * * * *
    (b) MRO qualifications. Each MRO must be a licensed 
physician who has the qualifications required by DOT Procedures.
    (c) MRO duties. The MRO shall perform functions for the 
operator as required by DOT Procedures.
    (d) MRO reports. The MRO shall report all drug test results 
to the operator in accordance with DOT Procedures.
* * * * *
    13. In redesignated Sec. 199.111, the section heading and the first 
sentence of paragraph (b) are revised, the second sentence of paragraph 
(b) and paragraph (c) are amended by removing the term ``retesting'' 
and adding ``testing'' in its place wherever the term appears, and the 
last sentence of paragraph (b) is amended by removing the term 
``retest'' and adding ``additional test'' in its place, to read as 
follows:

[[Page 21511]]

Sec. 199.111  Retention of samples and additional testing.

* * * * *
    (b) If the medical review officer (MRO) determines there is no 
legitimate medical explanation for a confirmed positive test result 
other than the unauthorized use of a prohibited drug, and if timely 
additional testing is requested by the employee according to DOT 
Procedures, the split specimen must be tested. * * *
* * * * *
    14. The first sentence of redesignated Sec. 199.117(b) is revised 
to read as follows:


Sec. 199.117  Recordkeeping.

* * * * *
    (b) Information regarding an individual's drug testing results or 
rehabilitation may be released only upon the written consent of the 
individual, except as provided by DOT Procedures. * * *


Sec. 199.201  [Removed and Reserved]

    15. Section 199.201 is removed and reserved.
    16. In Sec. 199.202, the first sentence is revised to read as 
follows:


Sec. 199.202  Alcohol misuse plan.

    Each operator shall maintain and follow a written alcohol misuse 
plan that conforms to the requirements of this part and DOT Procedures 
concerning alcohol testing programs. * * *


Sec. Sec. 199.203, 199.205  [Removed and Reserved]

    17. Sections 199.203 and 199.205 are removed and reserved.
    18. Section 199.207 is redesignated as new Sec. 199.7 and 
transferred to subpart A, and redesignated Sec. 199.7 is amended by 
removing the term ``subpart'' and adding ``part'' in its place wherever 
the term appears.
    19. In Sec. 199.209, the existing text is designated as paragraph 
(a) and new paragraph (b) is added to read as follows:


Sec. 199.209  Other requirements imposed by operators.

* * * * *
    (b) As an operator, you may, but are not required to, conduct pre-
employment alcohol testing under this part. If you choose to conduct 
pre-employment alcohol testing, you must comply with the following 
requirements:
    (1) You must conduct a pre-employment alcohol test before the first 
performance of covered functions by every covered employee (whether a 
new employee or someone who has transferred to a position involving the 
performance of covered functions).
    (2) You must treat all covered employees the same for the purpose 
of pre-employment alcohol testing (i.e., you must not test some covered 
employees and not others).
    (3) You must conduct the pre-employment tests after making a 
contingent offer of employment or transfer, subject to the employee 
passing the pre-employment alcohol test.
    (4) You must conduct all pre-employment alcohol tests using the 
alcohol testing procedures in DOT Procedures.
    (5) You must not allow a covered employee to begin performing 
covered functions unless the result of the employee's test indicates an 
alcohol concentration of less than 0.04.


Sec. 199.213  [Removed and Reserved]

    20. Section 199.213 is removed and reserved.


Sec. 199.225  [Amended]

    21. In Sec. 199.225, paragraphs (a)(2)(ii) and (b)(4)(ii) are 
removed and reserved.
    22. Section 199.231(g) is revised to read as follows:


Sec. 199.231  Access to facilities and records.

* * * * *
    (g) An operator may disclose information without employee consent 
as provided by DOT Procedures concerning certain legal proceedings.
* * * * *

    Issued in Washington, DC, on March 30, 2001.
Stacey L. Gerard,
Associate Administrator for Pipeline Safety.
[FR Doc. 01-9412 Filed 4-27-01; 8:45 am]
BILLING CODE 4910-60-P