[Federal Register Volume 66, Number 176 (Tuesday, September 11, 2001)]
[Rules and Regulations]
[Pages 47114-47119]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-22581]



[[Page 47114]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 199

[Docket No. RSPA-00-8417; Amdt. 199-19]
RIN 2137-AD55


Drug and Alcohol Testing for Pipeline Facility Employees

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We are conforming our pipeline facility drug and alcohol 
testing regulations with DOT's ``Procedures for Transportation 
Workplace Drug and Alcohol Testing Programs.'' In addition, we are 
changing the format of the regulations to make them easier to apply and 
understand. The purpose of these changes is to make the regulations 
clearer and consistent with DOT's drug and alcohol testing policies.

EFFECTIVE DATE: This Final Rule takes effect September 11, 2001.

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:

Effective Date

    Federal law requires pipeline safety standards to take effect 30 
days after publication unless we for good cause establish a different 
effective date based on the time reasonably necessary to comply with 
the standards. The primary purpose of this Final Rule is to conform 
RSPA's drug and alcohol testing regulations with DOT's revised 
procedures on drug and alcohol testing. A secondary purpose is to make 
RSPA's regulations easier to apply and understand through appropriate 
changes in format. Agreement between RSPA's drug and alcohol 
regulations and DOT's revised procedures is essential to avoid overlap, 
conflict, duplication, or confusion in applying the regulations, and 
the format changes support this aim. Because DOT's revised procedures 
are effective August 1, 2001, any delay in achieving agreement after 
publication of this Final Rule would be contrary to the public 
interest. So we are making this Final Rule effective upon publication, 
rather than 30 days from now. Because the revised DOT procedures were 
published over eight months ago and RSPA's regulations already 
incorporate the DOT procedures by reference, affected parties have had 
ample time to prepare to implement the revised procedures to which this 
Final Rule refers.

Background

    Last year DOT's Office of the Secretary comprehensively revised its 
regulations in 49 CFR Part 40 called ``Procedures for Transportation 
Workplace Drug and Alcohol Testing Programs'' (65 FR 79462; Dec. 19, 
2000). Through separate regulations published by various DOT operating 
administrations, including RSPA, these DOT procedures apply to all 
employers who must test transportation personnel for illegal drugs and 
alcohol. RSPA's separate regulations for drug and alcohol testing apply 
to operators of gas and hazardous liquid pipeline facilities (49 CFR 
Part 199).
    To conform the Part 199 regulations with the revised DOT procedures 
and make other clarifying changes to Part 199, we published a notice of 
proposed rulemaking (NPRM) (66 FR 21506; Apr. 30, 2001). The NPRM 
invited interested persons to submit written comments by June 14, 2001. 
We published the NPRM concurrently with similar notices published by 
other DOT agencies. In addition, we joined these other agencies and the 
Office of the Secretary in publishing a Common Preamble that gave an 
overview of significant issues (66 FR 21491; Apr. 30, 2001).

Disposition of Comments

    This section of the preamble summarizes the written comments we 
received in response to the NPRM. It also describes how we treated 
those comments in developing this Final Rule. If a proposed section is 
not mentioned, no significant comments were received on that section 
and we are adopting it as final.
    Validity testing and access to information. In a joint comment, the 
Air Line Pilots Association and the Transportation Trades Department, 
AFL-CIO, expressed concerns about the new requirement in 49 CFR 40.89 
that laboratories must conduct validity testing to determine whether 
certain adulterants or foreign substances were added to the urine, if 
the urine was diluted, or if the urine specimen was substituted. In 
light of this new regulation, these commenters also questioned the 
adequacy of Part 40 provisions concerning release of information, and 
they objected to DOT agency proposals to delete their separate 
regulations on release of information. We believe this comment relates 
to across-the-board Part 40 issues that are beyond the scope of the 
NPRM. The NPRM did not propose to remove the separate Part 199 
requirements on release of information. DOT's Office of the Secretary 
addressed these commenters' concerns in a separate Federal Register 
publication associated with this Final Rule entitled ``Transportation 
Workplace Drug and Alcohol Testing Programs: Response to Comments on 
Pre-Employment Inquiry Requirement; Common Preamble for DOT Agency 
Conforming Rules'' (66 FR 41955; Aug. 9, 2001).
    Follow-up testing. Blair & Burke commented on the different wording 
that Part 199 and revised Part 40 use to state the authority of a 
substance abuse professional (SAP) to terminate follow-up testing. 
Existing Secs. 199.111(f) and 199.243(c)(2)( ii) provide that a SAP may 
terminate follow-up testing at any time after the first six tests have 
been administered. In contrast, 49 CFR 40.307(f) states that SAPs may 
modify their determinations concerning follow-up tests but not the 
requirement that the employee take at least six follow-up tests within 
the first 12 months after returning to a safety-sensitive function. As 
an example, Sec. 40.307(f) states that if the SAP recommends follow-up 
testing beyond the first 12 months, the SAP can terminate the testing 
requirement at any time after the first year of testing. Blair & Burke 
was concerned that if an SAP recommends more than six tests in the 
first 12 months, under Sec. 40.307(f) the SAP could not terminate 
testing until after the first year of testing, not after the first six 
tests as Secs. 199.111(f) and 199.243(c)(2)( ii) provide. We think 
Blair & Burke may have mistaken the example in Sec. 40.307(f) for the 
rule. The example only concerns modification of testing that is to take 
place after the first 12 months, but the rule allows modification of 
any testing other than the minimum six tests in 12 months. So any 
required testing in the first 12 months beyond the minimum six tests 
could be terminated under Sec. 40.307(f). We do not see any need to 
change Secs. 199.111(f) and 199.243(c)(2)( ii) to make these rules 
consistent with Sec. 40.307(f).
    Affirming pre-employment testing exemptions and tests. Part 199 
exempts an individual from pre-employment drug testing if the 
individual participates in an anti-drug program that conforms to the 
requirements of Part 199 (existing Sec. 199.11(a)). To minimize 
erroneous exemptions, the Drug and Alcohol Testing Industry Association 
(DATIA) suggested that DOT agencies adopt the Federal Motor Carrier 
Safety

[[Page 47115]]

Administration's rule (49 CFR 382.301) that requires employers to 
investigate and document the validity of such programs. DATIA further 
suggested that we require managers of random testing pools to have 
written proof of pre-employment tests, or written proof of exemptions, 
before enrolling persons in random testing pools. We believe this 
comment relates to across-the-board Part 40 issues that are beyond the 
scope of the NPRM. The NPRM did not propose regulations on the matter 
DATIA advances in this comment. DOT's Office of the Secretary addressed 
this commenter's concern in a separate Federal Register publication 
associated with this Final Rule entitled ``Transportation Workplace 
Drug and Alcohol Testing Programs: Response to Comments on Pre-
Employment Inquiry Requirement; Common Preamble for DOT Agency 
Conforming Rules'' (66 FR 41955; Aug. 9, 2001).
    Self-employed individuals. DATIA suggested that DOT agencies 
authorize any Consortium/Third-party administrator (C/TPA) to determine 
if a self-employed individual has refused to take a drug or alcohol 
test requested by the C/TPA. DATIA said this rule change would bring 
accountability to the testing process for small companies. We believe 
this comment relates to across-the-board Part 40 issues that are beyond 
the scope of the NPRM. The NPRM did not propose regulations on the 
matter DATIA advances in this comment. DOT's Office of the Secretary 
addressed these commenter's concern in a separate Federal Register 
publication associated with this Final Rule entitled ``Transportation 
Workplace Drug and Alcohol Testing Programs: Response to Comments on 
Pre-Employment Inquiry Requirement; Common Preamble for DOT Agency 
Conforming Rules'' (66 FR 41955; Aug. 9, 2001).
    Publishing random testing rate. The Common Preamble suggested that 
DOT agencies may consider adopting a proposal by the Federal Motor 
Carrier Safety Administration (FMCSA) to publish the random testing 
rate only when the rate changes. At present RSPA publishes the testing 
rate applicable to the pipeline industry annually, as existing 
Sec. 199.11(c)(2) requires. DATIA recommended that we not adopt FMCSA's 
proposal. We agree with DATIA that annual publication is an important 
source of information for the industry, and so have not changed 
existing Sec. 199.11(c)(2). DATIA also suggested that DOT agencies 
jointly publish their random testing rates. We believe the objective of 
this comment is being met by DOT's Office of Drug and Alcohol Policy by 
publishing each agency's random rate on its Web site (http://www.dot.gov/ost/dapc/main/testrate.htm).
    Stand-down waivers. Regarding the proposed procedures for seeking 
stand-down waivers (proposed Sec. 199.9 or new Sec. 199.7), Equilon 
Pipeline Company, LLC, asked if we would consider a waiver request for 
all covered employees of a company or just specific employees. The 
proposed procedures relate to waivers authorized by 49 CFR 40.21. This 
regulation prohibits employers from temporarily removing employees from 
performing safety-sensitive functions based on an unverified positive 
drug test result unless a concerned DOT agency waives this restriction. 
Because waiver authority under Sec. 40.21 is not limited to particular 
employees or groups of employees, neither are the proposed waiver 
procedures. So we will consider waiver requests on a company-wide basis 
provided the request contains all the information required by 
Sec. 40.21 and new Sec. 199.7.
    Checking previous test results. Under 49 CFR 40.25 employers who 
intend to use a person for a safety-sensitive function must seek 
certain information from former DOT-regulated employers about that 
person's drug and alcohol testing records. The purpose of proposed new 
Sec. 199.11 was simply to call operators' attention to this new 
information collection requirement. However, the Iowa Utilities Board 
(IUB) commented that Sec. 199.11(a) lacked guidance for operators if an 
employee does not consent to release of information by a former 
employer. IUB was also concerned that proposed new Sec. 199.11(b) would 
require a person who had violated a DOT agency drug or alcohol rule to 
undergo the new employer's return-to-duty process even if that person 
had successfully completed the previous employer's return-to-duty 
process. Both of these concerns are answered by Sec. 40.25. Under 
Sec. 40.25(a), if a person refuses to provide written consent, the 
employer may not permit the person to perform a safety-sensitive 
function. And under Secs. 40.25(e) and (j), if an employer learns the 
person has violated a DOT agency drug or alcohol rule, the employer may 
not use the person to perform a safety-sensitive function unless the 
employer also obtains information that the person has successfully 
completed the return-to-duty process. Only if that process was not 
successfully completed would the person have to undergo the new 
employer's return-to-duty process.
    In light of IUB's comments, it appears that proposed Sec. 199.11 
has the potential to cause varied applications of Sec. 40.25. 
Considering that revised Part 40, including Sec. 40.25, will apply to 
operators through incorporation by reference in Part 199, we decided 
proposed Sec. 199.11 is not necessary and dropped it from this Final 
Rule.
    Return-to-duty testing. IUB also thought the wording of proposed 
Sec. 199.105(e) could be clearer. So we edited the wording in the final 
rule.
    Drug and alcohol plans. The Southwest Gas Corporation asked that we 
allow operators at least 6 months to update their written drug and 
alcohol plans under Sec. 199.7 (redesignated as Sec. 199.101) and 
Sec. 199.202 to conform to the Part 40 and Part 199 revisions. DOT 
published revised Part 40 on December 19, 2000, but delayed the 
effective date until August 1, 2001, to ease the impact of the 
transition between the old and revised rules. This delay of more than 6 
months gave all covered employers, including pipeline operators, ample 
time to digest the rule changes and prepare to implement them. Because 
Secs. 199.7 and 199.202 incorporate Part 40 by reference, and the NPRM 
did not propose to change these sections, operators have had notice 
since December 19, 2000, that they would have to revise their drug and 
alcohol plans to conform to revised Part 40. The NPRM simplified this 
task by advising operators their plans would no longer have to allow 
for inconsistencies between Parts 40 and Part 199. So we do not feel 
that operators as a whole need more time to conform their plans to 
revised Part 40 and Part 199. Should an individual operator have good 
reasons for not completing its revisions before revised Part 40 takes 
effect, RSPA inspection personnel will take the reasons into account in 
evaluating the operator's level of compliance. And we will encourage 
State authorities who participate in the Federal pipeline safety 
program to do likewise.
    Additionally, Southwest Gas suggested that as a guideline for 
preparing revised drug and alcohol plans, we develop model plans 
similar to the ones we developed for the old rules. The old model plans 
Southwest Gas referred to are posted on the Web at http://ops.dot.gov/pub.htm#pub. These model plans now have limited usefulness because we 
have not yet updated them to reflect changes to Part 40. Even if the 
model plans are not updated in time to help operators before the August 
1 deadline, this circumstance would not lessen the duty of operators to 
develop and follow revised alcohol and drug plans.

[[Page 47116]]

Structure and Organization

    Although there were no comments on the proposed structural and 
organizational changes to Part 199, we have edited final Secs. 199.1 
and 199.2. In Sec. 199.1, the title is changed from ``Scope and 
compliance'' to ``Scope,'' and the text is limited to stating that Part 
199 requires operators of pipeline facilities subject to 49 CFR Part 
192, 193, or 195 to test covered employees for the presence of 
prohibited drugs and alcohol. As proposed, the second sentence of the 
present Sec. 199.1(a), concerning the exclusion from Part 199 of master 
meter and petroleum gas systems, is clarified and transferred to new 
Sec. 199.2, Applicability. In addition, we edited and transferred 
paragraphs (c) and (d) of Sec. 199.1 to this new section because these 
paragraphs also concern the applicability of Part 199.
    As proposed, the present Subpart B on alcohol misuse is 
redesignated as Subpart C. The present Secs. 199.7 through 199.25 are 
designated as new Subpart B--Drug Testing and then redesignated as 
Secs. 199.101 through 199.119, respectively. In new Subpart B, we have 
added new Sec. 199.100, Purpose, to parallel Sec. 199.200, which 
explains the purpose of redesignated Subpart C.
    The NPRM proposed to amend existing Sec. 199.23(b) [or redesignated 
Sec. 199.117(b)] to make this section consistent with revised Part 40 
regulations on releasing name-specific drug testing records without the 
employee's consent in certain legal proceedings and to RSPA and 
jurisdictional state agencies. Although there were no comments on this 
proposal, we have recognized an inconsistency between Sec. 199.23(b) 
and the parallel regulation for alcohol testing, Sec. 199.231(b). The 
first sentence of existing and proposed Sec. 199.23(b) reads in part: 
``Information * * * may be released only upon the written consent of 
the individual. * * *'' In contrast, the first sentence of 
Sec. 199.231(b) states: ``A covered employee is entitled, upon written 
request, to obtain copies of any records pertaining to the employee's 
use of alcohol, including any records pertaining to his or her alcohol 
tests.'' While Sec. 199.231(b) requires operators to provide employees 
access to records of their alcohol testing upon written request, 
existing and proposed Sec. 199.23(b) only authorize operators to 
provide employees access to drug testing information upon written 
request. To make Secs. 199.23(b) and 199.231(b) consistent, in final 
Sec. 199.23(b) we changed ``may be released'' to ``must be released.'' 
Because of this change, the reference to DOT Procedures in proposed 
Sec. 199.23(b), which was stated as an exception, is stated 
affirmatively in the final rule.

Advisory Committee Consideration

    We discussed the highlights of the NPRM with the Technical Pipeline 
Safety Standards Committee (TPSSC) and the Technical Hazardous Liquid 
Pipeline Safety Standards Committee (THLPSSC) at a meeting in 
Washington, DC on February 6, 2001 (66 FR 132; Jan. 2, 2001). The 
committees are statutorily mandated advisory committees that advise us 
on proposed safety standards and other policies for gas and hazardous 
liquid pipelines. Each committee has an authorized membership of 15 
persons, five each representing government, industry, and the public. 
Each member is qualified to consider the technical feasibility, 
reasonableness, cost-effectiveness, and practicability of proposed 
pipeline safety standards. A transcript of the February 6 meeting as 
well as other material related to the committees' consideration of the 
NPRM are available in Docket No. RSPA-98-4470.
    Following publication of the NPRM, we asked the members of each 
committee to review the NPRM and vote by letter-ballot on whether the 
proposed rules are technically feasible, reasonable, cost-effective, 
and practicable. We also sent each member a copy of the Regulatory 
Evaluation we prepared for this Final Rule. Of the TPSSC members who 
returned ballots, four voted to approve the proposed rules and three 
voted to approve the proposed rules with changes. All THLPSSC members 
who returned ballots voted to approve the proposed rules and no member 
commented on the Regulatory Evaluation. The changes recommended by the 
TPSSC members are discussed next.
    Eric Thomas, Director of Engineering, Southern Natural Gas Company, 
objected to the stand-down waiver process under 49 CFR 40.21 and 
proposed Sec. 199.9. He said the ability to remove from covered 
positions employees with unverified positive drug tests is imperative 
for safety, and the waiver process will overburden operators without 
any guarantee waivers will be granted. The preamble to the Part 40 
revisions gave the reasons DOT established the prohibition against 
stand down in Sec. 40.21: ``stand-down undercuts the rationale for 
[medical review officer] review, can compromise the confidentiality of 
test results, and may result in unfair stigmatization of an employee as 
a drug user.'' (65 FR 79463; Dec. 19, 2000). However, recognizing the 
safety concerns of commenters favoring stand-down, DOT also established 
a waiver process in Sec. 40.21 to permit employers, on a case-by-case 
basis, to request DOT agency approval for a specific, well-founded 
stand-down plan that effectively protects the interests of employees. 
The purpose of proposed Sec. 199.9 is merely to establish a mechanism 
to implement the waiver process for pipeline operators. RSPA does not 
have authority to change DOT policy expressed in Sec. 40.21. Although 
Mr. Thomas is correct that there is no guarantee a waiver application 
will be successful, we will give each application full and fair 
consideration.
    Mr. Thomas also opposed the proposal on checking previous test 
results (proposed new Sec. 199.11), as did Ricky Cotton, Director of 
Pipeline Safety, Mississippi Public Service Commission, and John Leiss, 
Geologist, Federal Energy Regulatory Commission. Mr. Thomas and Mr. 
Cotton considered pre-employment testing alone to be a sufficient 
standard, and they thought requiring operators to check testing by 
previous employers would not be beneficial. In contrast, Mr. Leiss said 
we should expand the proposed rule to cover current covered employees 
and job applicants not previously employed by a DOT regulated employer. 
We proposed new Sec. 199.11 simply to call operators' attention to the 
new information collection requirement in 49 CFR 40.25. We do not have 
authority to change DOT policy expressed in Sec. 40.25. At the same 
time, we do not think the problem of illegal drug use among pipeline 
workers warrants establishing in Part 199 a regulation broader than 
Sec. 40.25.
    Because of maritime industry concerns, DOT recently opened a 30-day 
comment period on Sec. 40.25 (66 FR 32248; June 14, 2001). DOT's Office 
of the Secretary will address the comments in a separate Federal 
Register publication associated with this Final Rule.

Regulatory Analyses and Notices

Executive Order 12866 and DOT Policies and Procedures

    RSPA does not consider this 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 rulemaking to be significant under DOT 
regulatory policies and procedures (44 FR 11034: February 26, 1979).

[[Page 47117]]

    The final rules are non-significant because they merely conform 
Part 199 to revised Part 40, which has already had extensive comment 
and analysis, and make other clarifying and organizational changes to 
Part 199. The economic impact of revised Part 40 was analyzed in 
connection with the Part 40 rulemaking, and the final Part 199 rules 
will not have any incremental economic impact of their own. As to the 
clarifying and organizational changes not directly related to revised 
Part 40, we assessed the economic impact of these changes as minimal. A 
copy of the Regulatory Evaluation of costs and benefits is available in 
the docket for this proceeding.

Regulatory Flexibility Act

    The final 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 final rules will 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. The final rules will not impose any 
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 final rules will 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 final rules will not have sufficient federalism implications to 
warrant preparation of a federalism assessment.

Executive Order 13084

    The final 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 final rules will not significantly or uniquely affect the 
communities of the Indian tribal governments and will 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 
final 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 final rules do not mandate business process 
changes or require modifications to computer systems. Because the final 
rules will not affect the ability of organizations to respond to those 
problems, we are not delaying the effectiveness of the requirements.

Unfunded Mandates Reform Act of 1995

    The final rules will not impose unfunded mandates under the 
Unfunded Mandates Reform Act of 1995. The rules will 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 are the 
least burdensome alternative that achieves the objective of the rules.

National Environmental Policy Act

    We have analyzed the final rules for purposes of the National 
Environmental Policy Act (42 U.S.C. 4321 et seq.). Because the rules 
parallel present requirements of revised Part 40 or involve clarifying 
or organizational changes, we have determined that the rules will not 
significantly affect the quality of the human environment.

Executive Order 13211

    This rulemaking is not a ``Significant energy action'' under 
Executive Order 13211. It is not a significant regulatory action under 
Executive Order 12866 and is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy. Further, this 
rulemaking has not been designated by the Administrator of the Office 
of Information and Regulatory Affairs as a significant energy action.

List of Subjects in 49 CFR Part 199

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


    In consideration of the foregoing, we are amending 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. Section 199.1, is revised to read as follows:


Sec. 199.1  Scope.

    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.

    (a) This part applies to pipeline operators only with respect to 
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).
    (b) This part does not apply to any person for whom compliance with 
this part would violate the domestic laws or policies of another 
country.
    (c) This part does not apply to covered functions performed on--
    (1) Master meter systems, as defined in Sec. 191.3 of this chapter; 
or
    (2) 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 47118]]

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 on an 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.

    7. Subpart B is redesignated as subpart C.

    8. Existing Secs. 199.7, 199.9, 199.11, 199.13, 199.15, 199.17, 
199.19, 199.21, 199.23, and 199.25 are redesignated as Secs. 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

    9. New Sec. 199.7 is added to subpart A to read as follows:


Sec. 199.7  Stand-down waivers.

    (a) Each operator who seeks a waiver under Sec. 40.21 of this title 
from the stand-down restriction must 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.

    10. New Sec. 199.100 is added to Subpart B to read as follows:


Sec. 199.100  Purpose.

    The purpose of this subpart is to establish programs designed to 
help prevent accidents and injuries resulting from the use of 
prohibited drugs by employees who perform covered functions for 
operators of certain pipeline facilities subject to part 192, 193, or 
195 of this chapter.
    11. 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
* * * * *
    12. 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 applicable 
provisions of DOT Procedures concerning substance abuse professionals 
and the return-to-duty process.
* * * * *

    13. 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 must perform functions for the operator as 
required by DOT Procedures.
    (d) MRO reports. The MRO must report all drug test results to the 
operator in accordance with DOT Procedures.
* * * * *

    14. 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:


Sec. 199.111  Retention of samples and additional testing.

    (b) If the medical review officer (MRO) determines there is no 
legitimate

[[Page 47119]]

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. * * *
* * * * *

    15. 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 must be released upon the written consent of the 
individual and as provided by DOT Procedures. * * *


Sec. 199.201  [Removed and Reserved]

    16. Section 199.201 is removed and reserved.

    17. In Sec. 199.202, the first sentence is revised to read as 
follows:


Sec. 199.202  Alcohol misuse plan.

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


Secs. 199.203, 199.205  [Removed and Reserved]

    18. Sections 199.203 and 199.205 are removed and reserved.

    19. Section 199.207 is redesignated as new Sec. 199.9 and 
transferred to subpart A, and redesignated Sec. 199.9 is amended by 
removing the term ``subpart'' and adding ``part'' in its place wherever 
the term appears.

    20. 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) Operators may, but are not required to, conduct pre-employment 
alcohol testing under this subpart. Each operator that conducts pre-
employment alcohol testing must--
    (1) 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) 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) 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) Conduct all pre-employment alcohol tests using the alcohol 
testing procedures in DOT Procedures; and
    (5) Not allow any 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]

    21. Section 199.213 is removed and reserved.


Sec. 199.225  [Amended]

    22. In Sec. 199.225, paragraphs (a)(2)(ii) and (b)(4)(ii) are 
removed and reserved.

    23. 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 August 29, 2001.
Edward A. Brigham,
Acting Deputy Administrator.
[FR Doc. 01-22581 Filed 9-10-01; 8:45 am]
BILLING CODE 4910-60-P