[Code of Federal Regulations] [Title 49, Volume 3, Parts 186 to 199] [Revised as of October 1, 1998] From the U.S. Government Printing Office via GPO Access [CITE: 49CFR199] [Page 176-192] TITLE 49--TRANSPORTATION CHAPTER I--RESEARCH AND SPECIAL PROGRAMS ADMINISTRATION, DEPARTMENT OF TRANSPORTATION--Continued PART 199--DRUG AND ALCOHOL TESTING Subpart A Sec. 199.1 Scope and compliance. 199.3 Definitions. 199.5 DOT procedures. 199.7 Anti-drug plan. 199.9 Use of persons who fail or refuse a drug test. 199.11 Drug tests required. 199.13 Drug testing laboratory. 199.15 Review of drug testing results. 199.17 Retention of sample and retesting. 199.19 Employee assistance program. 199.21 Contractor employees. 199.23 Recordkeeping. 199.25 Reporting of anti-drug testing results. Subpart B--Alcohol Misuse Prevention Program 199.200 Purpose. 199.201 Applicability. 199.202 Alcohol misuse plan. 199.203 Alcohol testing procedures. 199.205 Definitions. 199.207 Preemption of State and local laws. 199.209 Other requirements imposed by operators. 199.211 Requirement for notice. 199.213 Starting date for alcohol testing programs. 199.215 Alcohol concentration. 199.217 On-duty use. 199.219 Pre-duty use. 199.221 Use following an accident. 199.223 Refusal to submit to a required alcohol test. 199.225 Alcohol tests required. 199.227 Retention of records. 199.229 Reporting of alcohol testing results. 199.231 Access to facilities and records. 199.233 Removal from covered function. 199.235 Required evaluation and testing. 199.237 Other alcohol-related conduct. 199.239 Operator obligation to promulgate a policy on the misuse of alcohol. 199.241 Training for supervisors. 199.243 Referral, evaluation, and treatment. 199.245 Contractor employees. Authority: 49 U.S.C. 5103, 60102, 60104, 60108, 60117, and 60118; 49 CFR 1.53. Source: 53 FR 47096, Nov. 21, 1988, unless otherwise noted. Subpart A 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 employees for the presence of prohibited drugs and provide an employee assistance program. However, this subpart does not apply to operators of ``master meter systems'' as defined in Sec. 191.3 of this chapter or to liquefied petroleum gas (LPG) operators. (b) Operators with more than 50 employees subject to drug testing under this part need not comply with this part until April 20, 1990. Operators with 50 or fewer employees subject to drug testing under this part need not comply with this part until August 21, 1990. (c) This part shall not apply to any person for whom compliance with this part would violate the domestic laws or policies of another country. (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). [53 FR 47096, Nov. 21, 1988, as amended by Amdt. 199-1, 54 FR 14923, Apr. 13, 1989; Amdt. No. 7, 57 FR 31280, July 14, 1992; 58 FR 68260, Dec. 23, 1993; Amdt. 199-16, 62 FR 67294, Dec. 24, 1997] Sec. 199.3 Definitions. As used in this part-- Accident means an incident reportable under part 191 of this chapter involving gas pipeline facilities or LNG facilities, or an accident reportable under part 195 of this chapter involving hazardous liquid pipeline facilities. Administrator means the Administrator of the Research and Special Programs Administration or any person to whom authority in the matter concerned has been delegated by the Secretary of Transportation. 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. [[Page 177]] 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. DOT Procedures means the Procedures for Transportation Workplace Drug Testing Programs published by the Office of the Secretary of Transportation in part 40 of this title. Fail a drug test means that the confirmation test result shows positive evidence of the presence under DOT Procedures of a prohibited drug in an employee's system. Operator means a person who owns or operates pipeline facilities subject to part 192, 193, or 195 of this chapter. Pass a drug test means that initial testing or confirmation testing under DOT Procedures does not show evidence of the presence of a prohibited drug in a person's system. Positive rate means the number of positive results for random drug tests conducted under this subpart plus the number of refusals of random tests required by this subpart, divided by the total number of random drug tests conducted under this subpart plus the number of refusals of random tests required by this subpart. Prohibited drug means any of the following substances specified in Schedule I or Schedule II of the Controlled Substances Act, 21 U.S.C. 801.812 (1981 & 1987 Cum.P.P.): marijuana, cocaine, opiates, amphetamines, and phencyclidine (PCP). In addition, for the purposes of reasonable cause testing, ``prohibited drug'' includes any substance in Schedule I or II if an operator has obtained prior approval from RSPA, pursuant to the ``DOT Procedures'' in 49 CFR part 40, to test for such substance, and if the Department of Health and Human Services has established an approved testing protocol and positive threshold for such substance. Refuse to submit means that a covered employee fails to provide a urine sample as required by 49 CFR Part 40, without a genuine inability to provide a specimen (as determined by a medical evaluation), after he or she has received notice of the requirement to be tested in accordance with the provisions of this subpart, or engages in conduct that clearly obstructs the testing process. State agency means an agency of any of the several states, the District of Columbia, or Puerto Rico that participates under the pipeline safety laws (49 U.S.C. 60101 et seq.) [53 FR 47096, Nov. 21, 1988, as amended by Amdt. 199-2, 54 FR 51850, Dec. 18, 1989; 59 FR 62227, Dec. 2, 1994; Amdt. 199-13, 61 FR 18518, Apr. 26, 1996; Amdt. 199-15, 63 FR 13000, Mar. 17, 1998] Sec. 199.5 DOT procedures. The anti-drug program required by this part must be conducted according to the requirements of this part and the DOT Procedures. In the event of conflict, the provisions of this part prevail. Terms and concepts used in this part have the same meaning as in the DOT Procedures. Sec. 199.7 Anti-drug plan. (a) Each operator shall maintain and follow a written anti-drug plan that conforms to the requirements of this part and the DOT Procedures. The plan must contain-- (1) Methods and procedures for compliance with all the requirements of this part, including the employee assistance program; (2) The name and address of each laboratory that analyzes the specimens collected for drug testing; (3) The name and address of the operator's Medical Review Officer, and Substance Abuse Professional; and (4) Procedures for notifying employees of the coverage and provisions of the plan. (b) The Administrator or the State Agency that has submitted a current certification under the pipeline safety laws (49 U.S.C. 60101 et seq.) with respect to the pipeline facility governed by an operator's plans and procedures may, after notice and opportunity for hearing as provided in 49 CFR 190.237 or the relevant State procedures, require the operator to amend its plans and [[Page 178]] procedures as necessary to provide a reasonable level of safety. [53 FR 47096, Nov. 21, 1988, as amended by Amdt. 199-2, 54 FR 51850, Dec. 18, 1989; Amdt. 199-4, 56 FR 31091, July 9, 1991; 56 FR 41077, Aug. 19, 1991; Amdt. 199-13, 61 FR 18518, Apr. 26, 1996; Amdt. 199-15, 63 FR 36863, July 8, 1998] Sec. 199.9 Use of persons who fail or refuse a drug test. (a) An operator may not knowingly use as an employee any person who-- (1) Fails a drug test required by this part and the medical review officer makes a determination under Sec. 199.15(d)(2); or (2) Refuses to take a drug test required by this part. (b) Paragraph (a)(1) of this section does not apply to a person who has-- (1) Passed a drug test under DOT Procedures; (2) Been recommended by the medical review officer for return to duty in accordance with Sec. 199.15(c); and (3) Not failed a drug test required by this part after returning to duty. [53 FR 47096, Nov. 21, 1988, as amended by Amdt. 199-2, 54 FR 51850, Dec. 18, 1989] Sec. 199.11 Drug tests required. Each operator shall conduct the following drug tests for the presence of a prohibited drug: (a) Pre-employment testing. No operator may hire or contract for the use of any person as an employee unless that person passes a drug test or is covered by an anti-drug program that conforms to the requirements of this part. (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. 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. 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. (c) Random testing. (1) Except as provided in paragraphs (c)(2) through (4) of this section, the minimum annual percentage rate for random drug testing shall be 50 percent of covered employees. (2) The Administrator's decision to increase or decrease the minimum annual percentage rate for random drug testing is based on the reported positive rate for the entire industry. All information used for this determination is drawn from the drug MIS reports required by this subpart. In order to ensure reliability of the data, the Administrator considers the quality and completeness of the reported data, may obtain additional information or reports from operators, and may make appropriate modifications in calculating the industry positive rate. Each year, the Administrator will publish in the Federal Register the minimum annual percentage rate for random drug testing of covered employees. The new minimum annual percentage rate for random drug testing will be applicable starting January 1 of the calendar year following publication. (3) When the minimum annual percentage rate for random drug testing is 50 percent, the Administrator may lower this rate to 25 percent of all covered employees if the Administrator determines that the data received under the reporting requirements of Sec. 199.25 for two consecutive calendar years indicate that the reported positive rate is less than 1.0 percent. (4) When the minimum annual percentage rate for random drug testing is 25 percent, and the data received under the reporting requirements of Sec. 199.25 for any calendar year indicate that the reported positive rate is equal to or greater than 1.0 percent, the Administrator will increase the minimum annual percentage rate for random drug testing to 50 percent of all covered employees. (5) The selection of employees for random drug testing shall be made by a scientifically valid method, such as a random number table or a computer- [[Page 179]] based random number generator that is matched with employees' Social Security numbers, payroll identification numbers, or other comparable identifying numbers. Under the selection process used, each covered employee shall have an equal chance of being tested each time selections are made. (6) The operator shall randomly select a sufficient number of covered employees for testing during each calendar year to equal an annual rate not less than the minimum annual percentage rate for random drug testing determined by the Administrator. If the operator conducts random drug testing through a consortium, the number of employees to be tested may be calculated for each individual operator or may be based on the total number of covered employees covered by the consortium who are subject to random drug testing at the same minimum annual percentage rate under this subpart or any DOT drug testing rule. (7) Each operator shall ensure that random drug tests conducted under this subpart are unannounced and that the dates for administering random tests are spread reasonably throughout the calendar year. (8) If a given covered employee is subject to random drug testing under the drug testing rules of more than one DOT agency for the same operator, the employee shall be subject to random drug testing at the percentage rate established for the calendar year by the DOT agency regulating more than 50 percent of the employee's function. (9) If an operator is required to conduct random drug testing under the drug testing rules of more than one DOT agency, the operator may-- (i) Establish separate pools for random selection, with each pool containing the covered employees who are subject to testing at the same required rate; or (ii) Randomly select such employees for testing at the highest percentage rate established for the calendar year by any DOT agency to which the operator is subject. (d) Testing based on reasonable cause. Each operator shall drug test each employee when there is reasonable cause to believe the employee is using a prohibited drug. The decision to test must be based on a reasonable and articulable belief that the employee is using a prohibited drug on the basis of specific, contemporaneous physical, behavioral, or performance indicators of probable drug use. At least two of the employee's supervisors, one of whom is trained in detection of the possible symptoms of drug use, shall substantiate and concur in the decision to test an employee. The concurrence between the two supervisors may be by telephone. However, in the case of operators with 50 or fewer employees subject to testing under this part, only one supervisor of the employee trained in detecting possible drug use symptoms shall substantiate the decision to test. (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 been evaluated face-to-face by a SAP, has properly followed any prescribed assistance, has passed a return-to-duty drug test administered under this part, and the SAP has determined that the employee may return to duty. (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 [[Page 180]] substance abuse professional determines that such testing is no longer necessary. [53 FR 47096, Nov. 21, 1988, as amended by Amdt. 199-2, 54 FR 51850, Dec. 18, 1989; 59 FR 62227, Dec. 2, 1994; Amdt. 199-15, 63 FR 13000, Mar. 17, 1998; Amdt 199-15, 63 FR 36863, July 8, 1998] Sec. 199.13 Drug testing laboratory. (a) Each operator shall use for the drug testing required by this part only drug testing laboratories certified by the Department of Health and Human Services under the DOT Procedures. (b) The drug testing laboratory must permit-- (1) Inspections by the operator before the laboratory is awarded a testing contract; and (2) Unannounced inspections, including examination of records, at any time, by the operator, the Administrator, and if the operator is subject to state agency jurisdiction, a representative of that state agency. Sec. 199.15 Review of drug testing results. (a) MRO appointment. Each operator shall designate or appoint a medical review officer (MRO). If an operator does not have a qualified individual on staff to serve as MRO, the operator may contract for the provision of MRO services as part of its anti-drug program. (b) MRO qualifications. The MRO must be a licensed physician with knowledge of drug abuse disorders. (c) MRO duties. The MRO shall perform the following functions for the operator: (1) Review the results of drug testing before they are reported to the operator. (2) Review and interpret each confirmed positive test result as follows to determine if there is an alternative medical explanation for the confirmed positive test result: (i) Conduct a medical interview with the individual tested. (ii) Review the individual's medical history and any relevant biomedical factors. (iii) Review all medical records made available by the individual tested to determine if a confirmed positive test resulted from legally prescribed medication. (iv) If necessary, require that the original specimen be reanalyzed to determine the accuracy of the reported test result. (v) Verify that the laboratory report and assessment are correct. (3) Ensure that an employee has been drug tested in accordance with the DOT Procedures before the employee returns to duty. (d) MRO determinations. The following rules govern MRO determinations: (1) If the MRO determines, after appropriate review, that there is a legitimate medical explanation for the confirmed positive test result other than the unauthorized use of a prohibited drug, the MRO is not required to take further action. (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. (3) Based on a review of laboratory inspection reports, quality assurance and quality control data, and other drug test results, the MRO may conclude that a particular drug test result is scientifically insufficient for further action. Under these circumstances, the MRO should conclude that the test is negative for the presence of a prohibited drug or drug metabolite in an individual's system. (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 [[Page 181]] 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. [53 FR 47096, Nov. 21, 1988, as amended by Amdt. 199-2, 54 FR 51850, Dec. 18, 1989; Amdt. 199-15, 63 FR 13000, Mar. 17, 1998; Amdt. 199-15, 63 FR 36863, July 8, 1998] Sec. 199.17 Retention of samples and retesting. (a) Samples that yield positive results on confirmation must be retained by the laboratory in properly secured, long-term, frozen storage for at least 365 days as required by the DOT Procedures. Within this 365-day period, the employee or the employee's representative, the operator, the Administrator, or, if the operator is subject to the jurisdiction of a state agency, the state agency may request that the laboratory retain the sample for an additional period. If, within the 365-day period, the laboratory has not received a proper written request to retain the sample for a further reasonable period specified in the request, the sample may be discarded following the end of the 365-day period. (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, 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. The employee may specify retesting by the original laboratory or by a second laboratory that is certified by the Department of Health and Human Services. The operator may require the employee to pay in advance the cost of shipment (if any) and reanalysis of the sample, but the employee must be reimbursed for such expense if the retest is negative. (c) If the employee specifies retesting by a second laboratory, the original laboratory must follow approved chain-of-custody procedures in transferring a portion of the sample. (d) Since some analytes may deteriorate during storage, detected levels of the drug below the detection limits established in the DOT Procedures, but equal to or greater than the established sensitivity of the assay, must, as technically appropriate, be reported and considered corroborative of the original positive results. [53 FR 47096, Nov. 21, 1988; 55 FR 797, Jan. 9, 1990, as amended by Amdt. 199-17, 63 FR 7723, Feb. 17, 1998] Sec. 199.19 Employee assistance program. (a) Each operator shall provide an employee assistance program (EAP) for its employees and supervisory personnel who will determine whether an employee must be drug tested based on reasonable cause. The operator may establish the EAP as a part of its internal personnel services or the operator may contract with an entity that provides EAP services. Each EAP must include education and training on drug use. At the discretion of the operator, the EAP may include an opportunity for employee rehabilitation. (b) Education under each EAP must include at least the following elements: display and distribution of informational material; display and distribution of a community service hot-line telephone number for employee assistance; and display and distribution of the employer's policy regarding the use of prohibited drugs. (c) Training under each EAP for supervisory personnel who will determine whether an employee must be drug tested based on reasonable cause must include one 60-minute period of training on the specific, contemporaneous physical, behavioral, and performance indicators of probable drug use. [[Page 182]] Sec. 199.21 Contractor employees. With respect to those employees who are contractors or employed by a contractor, an operator may provide by contract that the drug testing, education, and training required by this part be carried out by the contractor provided: (a) The operator remains responsible for ensuring that the requirements of this part are complied with; and (b) The contractor allows access to property and records by the operator, the Administrator, and if the operator is subject to the jurisdiction of a state agency, a representative of the state agency for the purpose of monitoring the operator's compliance with the requirements of this part. Sec. 199.23 Recordkeeping. (a) Each operator shall keep the following records for the periods specified and permit access to the records as provided by paragraph (b) of this section: (1) Records that demonstrate the collection process conforms to this part must be kept for at least 3 years. (2) Records of employee drug test results that show employees who had a positive test, and the type of test (e.g., post-accident), and records that demonstrate rehabilitation, if any, must be kept for at least 5 years, and include the following information: (i) The function performed by each employee who had a positive drug test result. (ii) The prohibited drug(s) that were used by an employee who had a positive drug test. (iii) The disposition of each employee who had a positive drug test or refused a drug test (e.g., termination, rehabilitation, removed from covered function, other). (3) Records of employee drug test results that show employees passed a drug test must be kept for at least 1 year. (4) A record of the number of employees tested, by type of test (e.g., post-accident), must be kept for at least 5 years. (5) Records confirming that supervisors and employees have been trained as required by this part must be kept for at least 3 years. (b) Information regarding an individual's drug testing results or rehabilitation may be released only upon the written consent of the individual, except that such information must be released regardless of consent to the Administrator or the representative of a state agency upon request as part of an accident investigation. Statistical data related to drug testing and rehabilitation that is not name-specific and training records must be made available to the Administrator or the representative of a state agency upon request. [53 FR 47096, Nov. 21, 1988, as amended at 58 FR 68260, Dec. 23, 1993] Sec. 199.25 Reporting of anti-drug testing results. (a) Each large operator (having more than 50 covered employees) shall submit an annual MIS report to RSPA of its anti-drug testing results in the form and manner prescribed by the Administrator, not later than March 15 of each year for the prior calendar year (January 1 through December 31). The Administrator shall require by written notice that small operators (50 or fewer covered employees) not otherwise required to submit annual MIS reports to prepare and submit such reports to RSPA. (b) Each report, required under this section, shall be submitted to the Office of Pipeline Safety Compliance (OPS), Research and Special Programs Administration, Department of Transportation, room 2335, 400 Seventh Street, SW., Washington, DC 20590. (c) Each report shall be submitted in the form and manner prescribed by the Administrator. No other form, including another DOT Operating Administration's MIS form, is acceptable for submission to RSPA. (d) Each report shall be signed by the Operator's anti-drug manager or designated representative. RSPA will allow the operator the option of sending the report on the computer disk provided by RSPA. If this option is used, a signature page attesting to the validity of the information on the computer disk must be sent to the address in paragraph (b) of this section. (e) Each operator's report with verified positive test results or refusals to [[Page 183]] test shall include all of the following informational elements: (1) Number of covered employees. (2) Number of covered employees subject to testing under the anti- drug rules of another operating administration. (3) Number of specimens collected by type of test. (4) Number of positive test results, verified by a Medical Review Officer (MRO), by type of test and type of drug. (5) Number of employee action(s) taken following verified positive(s), by type of action(s). (6) Number of negative tests reported by an MRO by type of test. (7) Number of persons denied a position as a covered employee following a verified positive drug test. (8) Number of covered employees, returned to duty during this reporting period after having failed or refused a drug test required under the RSPA rule. (9) Number of covered employees with tests verified positive by an MRO for multiple drugs. (10) Number of covered employees who refused to submit to a random or non-random (post-accident, reasonable cause, return-to- duty, or follow-up) drug test and the action taken in response to each refusal. (11) Number of supervisors who have received required initial training during the reporting period. (f) Each operator's report with only negative test results shall include all of the following informational elements: (1) Number of covered employees. (2) Number of covered employees subject to testing under the anti- drug rules of another operating administration. (3) Number of specimens collected by type of test. (4) Number of negative tests reported by an MRO by type of test. (5) Number of covered employees who refused to submit to a random or non-random (post-accident, reasonable cause, return-to-duty, or follow- up) drug test and the action taken in response to each refusal. (6) Number of supervisors who have received required initial training during the reporting period. [58 FR 68261, Dec. 23, 1993, as amended by Amdt. 199-14, 61 FR 65365, Dec. 12, 1996] Subpart B--Alcohol Misuse Prevention Program Source: Amdt. 199-9, 59 FR 7430, Feb. 15, 1994, unless otherwise noted. Sec. 199.200 Purpose. The purpose of this subpart is to establish programs designed to help prevent accidents and injuries resulting from the misuse of alcohol by employees who perform covered functions for operators of certain pipeline facilities subject to parts 192, 193, or 195 of this chapter. Sec. 199.201 Applicability. This subpart applies to gas, hazardous liquid and carbon dioxide pipeline operators and liquefied natural gas operators subject to parts 192, 193, or 195 of this chapter. However, this subpart does not apply to operators of master meter systems defined in Sec. 191.3 or liquefied petroleum gas (LPG) operators as discussed in Sec. 192.11 of this chapter. Sec. 199.202 Alcohol misuse plan. Each operator shall maintain and follow a written alcohol misuse plan that conforms to the requirements of this subpart and the DOT procedures in part 40 of this title. The plan shall contain methods and procedures for compliance with all the requirements of this subpart, including required testing, recordkeeping, reporting, education and training elements. Sec. 199.203 Alcohol testing procedures. Each operator shall ensure that all alcohol testing conducted under this subpart complies with the procedures set forth in part 40 of this title. The provisions of 49 CFR part 40 that address alcohol testing are made applicable to operators by this subpart. Sec. 199.205 Definitions. As used in this subpart: [[Page 184]] Accident means an incident reportable under part 191 of this chapter involving gas pipeline facilities or LNG facilities, or an accident reportable under part 195 of this chapter involving hazardous liquid or carbon dioxide pipeline facilities. Administrator means the Administrator of the Research and Special Programs Administration (RSPA), or any person who has been delegated authority in the matter concerned. Alcohol means the intoxicating agent in beverage alcohol, ethyl alcohol or other low molecular weight alcohols including methyl or isopropyl alcohol. Alcohol concentration (or content) means the alcohol in a volume of breath expressed in terms of grams of alcohol per 210 liters of breath as indicated by an evidential breath test under this subpart. Alcohol use means the consumption of any beverage, mixture, or preparation, including any medication, containing alcohol. Confirmation test means a second test, following a screening test with a result 0.02 or greater, that provides quantitative data of alcohol concentration. Consortium means an entity, including a group or association of employers, recipients, or contractors, that provides alcohol testing as required by this subpart or other DOT alcohol testing rules and that acts on behalf of the operators. Covered employee means a person who performs on a pipeline or at an LNG facility an operation, maintenance, or emergency-response function regulated by parts 192, 193, or 195 of this chapter. Covered employee and individual or individual to be tested have the same meaning for the purposes of this subpart. The term covered employee does not include clerical, truck driving, accounting, or other functions not subject to parts 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 (safety-sensitive function) means an operation, maintenance, or emergency-response function that is performed on a pipeline or LNG facility and the function is regulated by parts 192, 193, or 195. DOT agency An agency (or operating administration) of the United States Department of Transportation administering regulations requiring alcohol testing (14 CFR parts 61, 63, 65, 121, 135; 49 CFR parts 199, 219, 382, and 654) in accordance with part 40 of this title. Employer or operator means a person who owns or operates a pipeline or LNG facility subject to parts 192, 193, or 195 of this chapter. Performing (a covered function): An employee is considered to be performing a covered function (safety-sensitive function) during any period in which he or she is actually performing, ready to perform, or immediately available to perform such covered functions. Refuse to submit (to an alcohol test) means that a covered employee fails to provide adequate breath for testing without a valid medical explanation after he or she has received notice of the requirement to be tested in accordance with the provisions of this subpart, or engages in conduct that clearly obstructs the testing process. Screening test means an analytical procedure to determine whether a covered employee may have a prohibited concentration of alcohol in his or her system. State agency means an agency of any of the several states, the District of Columbia, or Puerto Rico that participates under the pipeline safety laws (49 U.S.C. 60101 et seq.). [Amdt. 199-9, 59 FR 7430, Feb. 15, 1994, as amended by Amdt. 199-13, 61 FR 18519, Apr. 26, 1996; 61 FR 37224, July 17, 1996] Sec. 199.207 Preemption of State and local laws. (a) Except as provided in paragraph (b) of this section, this subpart preempts any State or local law, rule, regulation, or order to the extent that: (1) Compliance with both the State or local requirement and this subpart is not possible; (2) Compliance with the State or local requirement is an obstacle to the accomplishment and execution of any requirement in this subpart; or (3) The State or local requirement is a pipeline safety standard applicable to interstate pipeline facilities. (b) This subpart shall not be construed to preempt provisions of State [[Page 185]] criminal law that impose sanctions for reckless conduct leading to actual loss of life, injury, or damage to property, whether the provisions apply specifically to transportation employees or employers or to the general public. Sec. 199.209 Other requirements imposed by operators. Except as expressly provided in this subpart, nothing in this subpart shall be construed to affect the authority of operators, or the rights of employees, with respect to the use or possession of alcohol, including authority and rights with respect to alcohol testing and rehabilitation. Sec. 199.211 Requirement for notice. Before performing an alcohol test under this subpart, each operator shall notify a covered employee that the alcohol test is required by this subpart. No operator shall falsely represent that a test is administered under this subpart. Sec. 199.213 Starting date for alcohol testing programs. (a) Large operators. Each operator with more than fifty covered employees on February 15, 1994 shall implement the requirements of this subpart beginning on January 1, 1995. (b) Small operators. Each operator with fifty or fewer covered employees on February 15, 1994 shall implement the requirements of this subpart beginning on January 1, 1996. (c) All operators commencing operations after February 15, 1994 shall have an alcohol misuse program that conforms to this subpart by January 1, 1996, or by the date an operator begins operations, whichever is later. Sec. 199.215 Alcohol concentration. Each operator shall prohibit a covered employee from reporting for duty or remaining on duty requiring the performance of covered functions while having an alcohol concentration of 0.04 or greater. No operator having actual knowledge that a covered employee has an alcohol concentration of 0.04 or greater shall permit the employee to perform or continue to perform covered functions. Sec. 199.217 On-duty use. Each operator shall prohibit a covered employee from using alcohol while performing covered functions. No operator having actual knowledge that a covered employee is using alcohol while performing covered functions shall permit the employee to perform or continue to perform covered functions. Sec. 199.219 Pre-duty use. Each operator shall prohibit a covered employee from using alcohol within four hours prior to performing covered functions, or, if an employee is called to duty to respond to an emergency, within the time period after the employee has been notified to report for duty. No operator having actual knowledge that a covered employee has used alcohol within four hours prior to performing covered functions or within the time period after the employee has been notified to report for duty shall permit that covered employee to perform or continue to perform covered functions. Sec. 199.221 Use following an accident. Each operator shall prohibit a covered employee who has actual knowledge of an accident in which his or her performance of covered functions has not been discounted by the operator as a contributing factor to the accident from using alcohol for eight hours following the accident, unless he or she has been given a post-accident test under Sec. 199.225(a), or the operator has determined that the employee's performance could not have contributed to the accident. Sec. 199.223 Refusal to submit to a required alcohol test. Each operator shall require a covered employee to submit to a post- accident alcohol test required under Sec. 199.225(a), a reasonable suspicion alcohol test required under Sec. 199.225(b), or a follow-up alcohol test required under Sec. 199.225(d). No operator shall permit an employee who refuses to submit to such a test to perform or continue to perform covered functions. [[Page 186]] Sec. 199.225 Alcohol tests required. Each operator shall conduct the following types of alcohol tests for the presence of alcohol: (a) Post-accident. (1) As soon as practicable following an accident, each operator shall test each surviving covered employee for alcohol if that employee's performance of a covered function either contributed to the accident or cannot be completely discounted as a contributing factor to the accident. The decision not to administer a test under this section shall be based on the operator's determination, using the best available information at the time of the determination, that the covered employee's performance could not have contributed to the accident. (2)(i) If a test required by this section is not administered within 2 hours following the accident, the operator shall prepare and maintain on file a record stating the reasons the test was not promptly administered. If a test required by paragraph (a) is not administered within 8 hours following the accident, the operator shall cease attempts to administer an alcohol test and shall state in the record the reasons for not administering the test. (ii) For the years stated in this paragraph, employers who submit MIS reports shall submit to RSPA each record of a test required by this section that is not completed within 8 hours. The employer's records of tests that could not be completed within 8 hours shall be submitted to RSPA by March 15, 1996; March 15, 1997; and March 15, 1998; for calendar years 1995, 1996, and 1997, respectively. Employers shall append these records to their MIS submissions. Each record shall include the following information: (A) Type of test (reasonable suspicion/post-accident); (B) Triggering event (including date, time, and location); (C) Employee category (do not include employee name or other identifying information); (D) Reason(s) test could not be completed within 8 hours; and (E) If blood alcohol testing could have been completed within eight hours, the name, address, and telephone number of the testing site where blood testing could have occurred. (3) A covered employee who is subject to post-accident testing who fails to remain readily available for such testing, including notifying the operator or operator representative of his/her location if he/she leaves the scene of the accident prior to submission to such test, may be deemed by the operator to have refused to submit to testing. Nothing in this section shall be construed to require the delay of necessary medical attention for injured people following an accident or to prohibit a covered employee from leaving the scene of an accident for the period necessary to obtain assistance in responding to the accident or to obtain necessary emergency medical care. (b) Reasonable suspicion testing. (1) Each operator shall require a covered employee to submit to an alcohol test when the operator has reasonable suspicion to believe that the employee has violated the prohibitions in this subpart. (2) The operator's determination that reasonable suspicion exists to require the covered employee to undergo an alcohol test shall be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odors of the employee. The required observations shall be made by a supervisor who is trained in detecting the symptoms of alcohol misuse. The supervisor who makes the determination that reasonable suspicion exists shall not conduct the breath alcohol test on that employee. (3) Alcohol testing is authorized by this section only if the observations required by paragraph (b)(2) of this section are made during, just preceding, or just after the period of the work day that the employee is required to be in compliance with this subpart. A covered employee may be directed by the operator to undergo reasonable suspicion testing for alcohol only while the employee is performing covered functions; just before the employee is to perform covered functions; or just after the employee has ceased performing covered functions. [[Page 187]] (4)(i) If a test required by this section is not administered within 2 hours following the determination under paragraph (b)(2) of this section, the operator shall prepare and maintain on file a record stating the reasons the test was not promptly administered. If a test required by this section is not administered within 8 hours following the determination under paragraph (b)(2) of this section, the operator shall cease attempts to administer an alcohol test and shall state in the record the reasons for not administering the test. Records shall be submitted to RSPA upon request of the Administrator. (ii) For the years stated in this paragraph, employers who submit MIS reports shall submit to RSPA each record of a test required by this section that is not completed within 8 hours. The employer's records of tests that could not be completed within 8 hours shall be submitted to RSPA by March 15, 1996; March 15, 1997; and March 15, 1998; for calendar years 1995, 1996, and 1997, respectively. Employers shall append these records to their MIS submissions. Each record shall include the following information: (A) Type of test (reasonable suspicion/post-accident); (B) Triggering event (including date, time, and location); (C) Employee category (do not include employee name or other identifying information); (D) Reason(s) test could not be completed within 8 hours; and (E) If blood alcohol testing could have been completed within eight hours, the name, address, and telephone number of the testing site where blood testing could have occurred. (iii) Notwithstanding the absence of a reasonable suspicion alcohol test under this section, an operator shall not permit a covered employee to report for duty or remain on duty requiring the performance of covered functions while the employee is under the influence of or impaired by alcohol, as shown by the behavioral, speech, or performance indicators of alcohol misuse, nor shall an operator permit the covered employee to perform or continue to perform covered functions, until: (A) An alcohol test is administered and the employee's alcohol concentration measures less than 0.02; or (B) The start of the employee's next regularly scheduled duty period, but not less than 8 hours following the determination under paragraph (b)(2) of this section that there is reasonable suspicion to believe that the employee has violated the prohibitions in this subpart. (iv) Except as provided in paragraph (b)(4)(ii), no operator shall take any action under this subpart against a covered employee based solely on the employee's behavior and appearance in the absence of an alcohol test. This does not prohibit an operator with the authority independent of this subpart from taking any action otherwise consistent with law. (c) Return-to-duty testing. Each operator shall ensure that before a covered employee returns to duty requiring the performance of a covered function after engaging in conduct prohibited by Secs. 199.215 through 199.223, the employee shall undergo a return-to-duty alcohol test with a result indicating an alcohol concentration of less than 0.02. (d) Follow-up testing. (1) Following a determination under Sec. 199.243(b) that a covered employee is in need of assistance in resolving problems associated with alcohol misuse, each operator shall ensure that the employee is subject to unannounced follow-up alcohol testing as directed by a substance abuse professional in accordance with the provisions of Sec. 199.243(c)(2)(ii). (2) Follow-up testing shall be conducted when the covered employee is performing covered functions; just before the employee is to perform covered functions; or just after the employee has ceased performing such functions. (e) Retesting of covered employees with an alcohol concentration of 0.02 or greater but less than 0.04. Each operator shall retest a covered employee to ensure compliance with the provisions of Sec. 199.237, if an operator chooses to permit the employee to perform a covered function within 8 hours following the [[Page 188]] administration of an alcohol test indicating an alcohol concentration of 0.02 or greater but less than 0.04. [Amdt. 199-9, 59 FR 7430, Feb. 15, 1994, as amended at 59 FR 62239 and 62246, Dec. 2, 1994] Sec. 199.227 Retention of records. (a) General requirement. Each operator shall maintain records of its alcohol misuse prevention program as provided in this section. The records shall be maintained in a secure location with controlled access. (b) Period of retention. Each operator shall maintain the records in accordance with the following schedule: (1) Five years. Records of employee alcohol test results with results indicating an alcohol concentration of 0.02 or greater, documentation of refusals to take required alcohol tests, calibration documentation, employee evaluation and referrals, and MIS annual report data shall be maintained for a minimum of five years. (2) Two years. Records related to the collection process (except calibration of evidential breath testing devices), and training shall be maintained for a minimum of two years. (3) One year. Records of all test results below 0.02 (as defined in 49 CFR part 40) shall be maintained for a minimum of one year. (c) Types of records. The following specific records shall be maintained: (1) Records related to the collection process: (i) Collection log books, if used. (ii) Calibration documentation for evidential breath testing devices. (iii) Documentation of breath alcohol technician training. (iv) Documents generated in connection with decisions to administer reasonable suspicion alcohol tests. (v) Documents generated in connection with decisions on post- accident tests. (vi) Documents verifying existence of a medical explanation of the inability of a covered employee to provide adequate breath for testing. (2) Records related to test results: (i) The operator's copy of the alcohol test form, including the results of the test. (ii) Documents related to the refusal of any covered employee to submit to an alcohol test required by this subpart. (iii) Documents presented by a covered employee to dispute the result of an alcohol test administered under this subpart. (3) Records related to other violations of this subpart. (4) Records related to evaluations: (i) Records pertaining to a determination by a substance abuse professional concerning a covered employee's need for assistance. (ii) Records concerning a covered employee's compliance with the recommendations of the substance abuse professional. (5) Record(s) related to the operator's MIS annual testing data. (6) Records related to education and training: (i) Materials on alcohol misuse awareness, including a copy of the operator's policy on alcohol misuse. (ii) Documentation of compliance with the requirements of Sec. 199.231. (iii) Documentation of training provided to supervisors for the purpose of qualifying the supervisors to make a determination concerning the need for alcohol testing based on reasonable suspicion. (iv) Certification that any training conducted under this subpart complies with the requirements for such training. Sec. 199.229 Reporting of alcohol testing results. (a) Each large operator (having more than 50 covered employees) shall submit an annual management information system (MIS) report to RSPA of its alcohol testing results in the form and manner prescribed by the Administrator, by March 15 of each year for the previous calendar year (January 1 through December 31). The Administrator may require by written notice that a small operator (50 or fewer covered employees), not otherwise required to submit annual MIS reports, submit such a report to RSPA. (b) Each operator that is subject to more than one DOT agency alcohol rule shall identify each employee covered by the regulations of more than [[Page 189]] one DOT agency. The identification will be by the total number of covered employees. Prior to conducting any alcohol test on a covered employee subject to the rules of more than one DOT agency, the employer shall determine which DOT agency rule or rules authorizes or requires the test. The test result information shall be directed to the appropriate DOT agency or agencies. (c) Each report, required under this section, shall be submitted to the Office of Pipeline Safety, Research and Special Programs Administration, Department of Transportation, room 2335, 400 Seventh Street, SW., Washington, DC 20590. RSPA will allow the operator the option of sending the report on the computer disk provided by RSPA. If this option is used, a signature page attesting to the validity of the information on the computer disk must be sent to the address in this section. (d) Each report that contains information on an alcohol screening test result of 0.02 or greater or a violation of the alcohol misuse provisions of Secs. 199.215 through 199.223 of this subpart shall be submitted on ``RSPA Alcohol Testing MIS Data Collection Form'' and include the following informational elements: (1) Number of covered employees. (2) Number of covered employees subject to testing under the alcohol misuse rule of another operating administration by each agency. (3)(i) Number of screening tests by type of test. (ii) Number of confirmation tests by type of test. (4) Number of confirmation tests indicating an alcohol concentration of 0.02 or greater but less than 0.04, by type of test. (5) Number of confirmation tests indicating an alcohol concentration of 0.04 or greater, by type of test. (6) Number of covered employees with a confirmation test indicating an alcohol concentration of 0.04 or greater or who have violations of other alcohol misuse provisions who were returned to duty in covered positions (having complied with the recommendations of a substance abuse professional as described in Secs. 199.235 and 199.243). (7) Number of covered employees who were administered alcohol and drug tests at the same time, with both a positive drug test and an alcohol test indicating an alcohol concentration of 0.04 or greater. (8) Number of covered employees who were found to have violated other provisions of Secs. 199.215 through 199.221, and any action taken in response to the violation. (9) Number of covered employees who refused to submit to an alcohol test required under this subpart, and the action taken in response to the refusal. (10) Number of supervisors who have received required training during the reporting period in determining the existence of reasonable suspicion of alcohol misuse. (e) Each report with no screening alcohol test results of 0.02, or greater or violations of the alcohol misuse provisions of Secs. 199.215 through 199.223 of this subpart shall be submitted on ``RSPA Alcohol Testing MIS Data Collection EZ Form'' and include the following informational elements. (This ``EZ'' report may only be submitted if the program results meet these criteria) (1) Number of covered employees. (2) Number of covered employees subject to testing under the alcohol misuse rule of another operating administration identified by each agency. (3) Number of screening tests by type of test. (4) Number of covered employees who refused to submit to an alcohol test required under this subpart, and the action taken in response to the refusal. (5) Number of supervisors who have received required training during the reporting period in determining the existence of reasonable suspicion of alcohol misuse. (f) A consortium may prepare reports on behalf of individual pipeline operators for purposes of compliance with this reporting requirement. However, the pipeline operator shall sign and submit such a report and shall remain responsible for ensuring the accuracy and timeliness of each report prepared on its behalf by a consortium. [Amdt. 199-9, 59 FR 7430, Feb. 15, 1994, as amended by Amdt. 199-14, 61 FR 65365, Dec. 12, 1996] [[Page 190]] Sec. 199.231 Access to facilities and records. (a) Except as required by law or expressly authorized or required in this subpart, no employer shall release covered employee information that is contained in records required to be maintained in Sec. 199.227. (b) 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. The operator shall promptly provide the records requested by the employee. Access to a employee's records shall not be contingent upon payment for records other than those specifically requested. (c) Each operator shall permit access to all facilities utilized in complying with the requirements of this subpart to the Secretary of Transportation, any DOT agency, or a representative of a state agency with regulatory authority over the operator. (d) Each operator shall make available copies of all results for employer alcohol testing conducted under this subpart and any other information pertaining to the operator's alcohol misuse prevention program, when requested by the Secretary of Transportation, any DOT agency with regulatory authority over the operator, or a representative of a state agency with regulatory authority over the operator. The information shall include name-specific alcohol test results, records, and reports. (e) When requested by the National Transportation Safety Board as part of an accident investigation, an operator shall disclose information related to the operator's administration of any post- accident alcohol tests administered following the accident under investigation. (f) An operator shall make records available to a subsequent employer upon receipt of the written request from the covered employee. Disclosure by the subsequent employer is permitted only as expressly authorized by the terms of the employee's written request. (g) An operator may disclose information required to be maintained under this subpart pertaining to a covered employee to the employee or the decisionmaker in a lawsuit, grievance, or other proceeding initiated by or on behalf of the individual, and arising from the results of an alcohol test administered under this subpart, or from the operator's determination that the covered employee engaged in conduct prohibited by Secs. 199.215 through 199.223 (including, but not limited to, a worker's compensation, unemployment compensation, or other proceeding relating to a benefit sought by the employee). (h) An operator shall release information regarding a covered employee's records as directed by the specific, written consent of the employee authorizing release of the information to an identified person. Release of such information by the person receiving the information is permitted only in accordance with the terms of the employee's consent. Sec. 199.233 Removal from covered function. Except as provided in Secs. 199.239 through 199.243, no operator shall permit any covered employee to perform covered functions if the employee has engaged in conduct prohibited by Secs. 199.215 through 199.223 or an alcohol misuse rule of another DOT agency. Sec. 199.235 Required evaluation and testing. No operator shall permit a covered employee who has engaged in conduct prohibited by Secs. 199.215 through 199.223 to perform covered functions unless the employee has met the requirements of Sec. 199.243. Sec. 199.237 Other alcohol-related conduct. (a) No operator shall permit a covered employee tested under the provisions of Sec. 199.225, who is found to have an alcohol concentration of 0.02 or greater but less than 0.04, to perform or continue to perform covered functions, until: (1) The employee's alcohol concentration measures less than 0.02 in accordance with a test administered under Sec. 199.225(e); or (2) The start of the employee's next regularly scheduled duty period, but [[Page 191]] not less than eight hours following administration of the test. (b) Except as provided in paragraph (a) of this section, no operator shall take any action under this subpart against an employee based solely on test results showing an alcohol concentration less than 0.04. This does not prohibit an operator with authority independent of this subpart from taking any action otherwise consistent with law. Sec. 199.239 Operator obligation to promulgate a policy on the misuse of alcohol. (a) General requirements. Each operator shall provide educational materials that explain these alcohol misuse requirements and the operator's policies and procedures with respect to meeting those requirements. (1) The operator shall ensure that a copy of these materials is distributed to each covered employee prior to start of alcohol testing under this subpart, and to each person subsequently hired for or transferred to a covered position. (2) Each operator shall provide written notice to representatives of employee organizations of the availability of this information. (b) Required content. The materials to be made available to covered employees shall include detailed discussion of at least the following: (1) The identity of the person designated by the operator to answer covered employee questions about the materials. (2) The categories of employees who are subject to the provisions of this subpart. (3) Sufficient information about the covered functions performed by those employees to make clear what period of the work day the covered employee is required to be in compliance with this subpart. (4) Specific information concerning covered employee conduct that is prohibited by this subpart. (5) The circumstances under which a covered employee will be tested for alcohol under this subpart. (6) The procedures that will be used to test for the presence of alcohol, protect the covered employee and the integrity of the breath testing process, safeguard the validity of the test results, and ensure that those results are attributed to the correct employee. (7) The requirement that a covered employee submit to alcohol tests administered in accordance with this subpart. (8) An explanation of what constitutes a refusal to submit to an alcohol test and the attendant consequences. (9) The consequences for covered employees found to have violated the prohibitions under this subpart, including the requirement that the employee be removed immediately from covered functions, and the procedures under Sec. 199.243. (10) The consequences for covered employees found to have an alcohol concentration of 0.02 or greater but less than 0.04. (11) Information concerning the effects of alcohol misuse on an individual's health, work, and personal life; signs and symptoms of an alcohol problem (the employee's or a coworker's); and including intervening evaluating and resolving problems associated with the misuse of alcohol including intervening when an alcohol problem is suspected, confrontation, referral to any available EAP, and/or referral to management. (c) Optional provisions. The materials supplied to covered employees may also include information on additional operator policies with respect to the use or possession of alcohol, including any consequences for an employee found to have a specified alcohol level, that are based on the operator's authority independent of this subpart. Any such additional policies or consequences shall be clearly described as being based on independent authority. Sec. 199.241 Training for supervisors. Each operator shall ensure that persons designated to determine whether reasonable suspicion exists to require a covered employee to undergo alcohol testing under Sec. 199.225(b) receive at least 60 minutes of training on the physical, behavioral, speech, and performance indicators of probable alcohol misuse. [[Page 192]] Sec. 199.243 Referral, evaluation, and treatment. (a) Each covered employee who has engaged in conduct prohibited by Secs. 199.215 through 199.223 of this subpart shall be advised of the resources available to the covered employee in evaluating and resolving problems associated with the misuse of alcohol, including the names, addresses, and telephone numbers of substance abuse professionals and counseling and treatment programs. (b) Each covered employee who engages in conduct prohibited under Secs. 199.215 through 199.223 shall be evaluated by a substance abuse professional who shall determine what assistance, if any, the employee needs in resolving problems associated with alcohol misuse. (c)(1) Before a covered employee returns to duty requiring the performance of a covered function after engaging in conduct prohibited by Secs. 199.215 through 199.223 of this subpart, the employee shall undergo a return-to-duty alcohol test with a result indicating an alcohol concentration of less than 0.02. (2) In addition, each covered employee identified as needing assistance in resolving problems associated with alcohol misuse-- (i) Shall be evaluated by a substance abuse professional to determine that the employee has properly followed any rehabilitation program prescribed under paragraph (b) of this section, and (ii) Shall be subject to unannounced follow-up alcohol tests administered by the operator following the 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 employee's return to duty. In addition, follow-up testing may include testing for drugs, 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 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. (d) 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. (e) The operator shall ensure that a substance abuse professional who determines that a covered employee requires assistance in resolving problems with alcohol misuse does not refer the 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 an 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 alcohol 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. Sec. 199.245 Contractor employees. (a) With respect to those covered employees who are contractors or employed by a contractor, an operator may provide by contract that the alcohol testing, training and education required by this subpart be carried out by the contractor provided: (b) The operator remains responsible for ensuring that the requirements of this subpart and part 40 of this title are complied with; and (c) The contractor allows access to property and records by the operator, the Administrator, any DOT agency with regulatory authority over the operator or covered employee, and, if the operator is subject to the jurisdiction of a state agency, a representative of the state agency for the purposes of monitoring the operator's compliance with the requirements of this subpart and part 40 of this title. [[Page 193]]