[Federal Register: April 30, 2001 (Volume 66, Number 83)]
[Proposed Rules]
[Page 21506-21511]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30ap01-29]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Part 199
[Docket No. RSPA-00-8417; Notice 1]
RIN 2137-AD55
Drug and Alcohol Testing for Pipeline Facility Employees
AGENCY: Research and Special Programs Administration (RSPA),
DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: We propose to conform the pipeline facility drug and
alcohol testing regulations with corresponding DOT regulations
(Procedures for Transportation Workplace Drug and Alcohol Testing
Programs). We also propose miscellaneous changes to the pipeline
facility drug and alcohol testing regulations to make them easier to
apply and understand. The proposals are intended to ensure the pipeline
facility drug and alcohol testing regulations are clear and consistent
with the DOT regulations.
DATES: Persons interested in submitting written comments on the
proposed rules must do so by June 14, 2001. Late filed comments will be
considered so far as practicable.
ADDRESSES: You may submit written comments by mailing or
delivering an original and two copies to the Dockets Facility, U.S.
Department of Transportation, Room PL-401, 400 Seventh Street, SW.,
Washington, DC 20590-0001. The Dockets Facility is open from 10:00 a.m.
to 5:00 p.m., Monday through Friday, except on Federal holidays when
the facility is closed. Or you may submit written comments to the
docket electronically at the following Web address: http://dms.dot.gov.
See the SUPPLEMENTARY INFORMATION section for additional filing
information.
FOR FURTHER INFORMATION CONTACT: L. M. Furrow by phone at 202-
366-4559, by fax at 202-366-4566, by mail at U.S. Department of
Transportation, 400 Seventh Street, SW., Washington, DC, 20590, or by
e-mail at buck.furrow@rspa.dot.gov.
SUPPLEMENTARY INFORMATION:
Filing Information, Electronic Access, and General Program
Information
All written comments should identify the docket and notice numbers
stated in the heading of this notice. Anyone who wants confirmation of
mailed comments must include a self-addressed stamped postcard. To file
written comments electronically, after logging onto http://dms.dot.gov,
click on ``Electronic Submission.'' You can read comments and other
material in the docket at this Web address: http://dms.dot.gov. General
information about our pipeline safety program is available at this
address: http://ops.dot.gov.
Background
On April 29, 1996, DOT issued an advance notice of proposed
rulemaking (61 FR 18713) concerning changes to its regulations called
Procedures for Transportation Workplace Drug and Alcohol Testing
Programs (49 CFR Part 40). These regulations prescribe requirements
applicable to all employers who must conduct drug and alcohol testing
under separate regulations administered by DOT agencies such as RSPA.
Subsequently, on December 9, 1999, DOT issued a notice of proposed
rulemaking (64 FR 69076) to change Part 40 comprehensively. The Final
Rule document revising Part 40 has now been published (65 FR 79462;
December 19, 2000). Consequently, we are proposing to amend the drug
and alcohol testing regulations for pipeline facilities (49 CFR Part
199) to conform them to revised Part 40.
Common Preamble
Elsewhere is today's Federal Register, DOT is publishing a
preamble related to the notices of proposed rulemaking that RSPA and
other DOT agencies are publishing to conform their drug and alcohol
testing regulations to revised Part 40. This common preamble provides
an overview of the issues involved.
Proposed Amendments to Part 199
Structure and Organization
When the rules in Subpart B-Alcohol Misuse Prevention Program were
added
[[Page 21507]]
to Part 199, the drug testing requirements in Sec. Sec. 199.1 through
199.25 were designated as Subpart A. However, Sec. 199.1, ``Scope and
compliance,'' Sec. 199.3, ``Definitions,'' and Sec. 199.5, ``DOT
procedures,'' are relevant to Part 199 in general. So we propose to
designate Sec. 199.1 through Sec. 199.5 as Subpart A--General. Sections
199.7 through 199.25 would be designated as Subpart B--Drug Testing and
redesignated as Sec. Sec. 199.101 through 199.119, respectively. The
heading ``Subpart B-Alcohol Misuse Prevention Program'' would be
redesignated as ``Subpart C--Alcohol Misuse Prevention Program.''
Another section that relates to Part 199 in general is
Sec. 199.207, ``Preemption of state and local laws.'' We propose to
transfer this section to Subpart A--General as Sec. 199.7.
In Sec. 199.1, the first sentence of paragraph (a) would be revised
to state that the scope of Part 199 includes both drug and alcohol
testing. And the second sentence of paragraph (a), concerning the
exclusion from Part 199 of master meter and petroleum gas systems,
would be clarified and transferred to new Sec. 199.2. In view of these
proposed changes concerning the scope and applicability of Part 199 in
general, Sec. 199.201, concerning the applicability of Subpart B, would
be removed as superfluous.
Sections 199.1(b) and 199.213, which provide compliance dates,
would be removed because the dates have expired.
The first sentence of Sec. 199.5 now provides that the ``anti-drug
program'' required by Part 199 must be conducted according to the
requirements of Part 199 and DOT Procedures (or 49 CFR part 40). To
make this sentence apply to the Part 199 alcohol program as well, we
propose to change ``anti-drug program'' to ``anti-drug and alcohol
programs.'' In view of this proposed change, Sec. 199.203, which makes
DOT Procedures applicable to alcohol tests under Part 199, would be
removed as superfluous. The definition of ``DOT Procedures'' in
Sec. 199.3 would be revised similarly.
Under Sec. 199.9(b)(2) [or redesignated Sec. 199.103(b)(2)], a
medical review officer's recommendation for return to duty is one of
three conditions an employee must meet to escape the consequences of
failing or refusing a drug test. We propose to make this condition
consistent with Sec. 199.11(e) [or redesignated Sec. 199.105(e)] and
DOT Procedures. First, the reference to the medical review officer's
recommendation for return to duty would be deleted. Under Part 40
substance abuse professionals, not medical review officers, play the
lead role in the return to duty process. Secondly, this point would be
emphasized by adding that a substance abuse professional must have
determined that the employee has successfully completed any required
education or treatment.
Sections 199.225(a)(2)(ii) and 199.225(b)(4)(ii) require operators
to submit certain post-accident and reasonable-suspicion test records
for the years 1995, 1996, and 1997. Because the deadlines for
compliance with these reporting requirements have expired, we propose
to remove Sec. Sec. 199.225(a)(2)(ii) and 199.225(b)(4)(ii).
Definitions
The definitions in Part 199 are now stated in two sections:
Sec. Sec. 199.3 and 199.205. To make it easier to find and use Part 199
definitions and to eliminate unnecessary repetition within Part 199 and
with Part 40, we propose to transfer to Sec. 199.3 those definitions in
Sec. 199.205 that are not duplicated in either Sec. 199.3 or Part 40.
Section 199.205 would then be removed.
Section 199.205 contains definitions of the following terms that
also are defined in Sec. 199.3: accident, administrator, covered
employee, covered function, operator, and state agency. The proposed
transfer would make this repetition unnecessary. In addition,
Sec. 199.205 defines the following terms that also are defined in 49
CFR 40.3: alcohol, alcohol concentration, alcohol use, confirmation
test, consortium, DOT agency, employer, and screening test. Because
Sec. 199.5 provides that terms and concepts used in Part 199 have the
same meaning as in Part 40, it is unnecessary to transfer these
definitions to Sec. 199.3. Consequently, only definitions of the
following two terms in Sec. 199.205 would be transferred to Sec. 199.3:
performing a covered function, and refuse to submit to an alcohol test.
The definition of ``performing a covered function'' would be revised
for clarity.
The definitions of ``covered employee'' and ``covered function''
included in Sec. Sec. 199.3 and 199.205 may be unclear because similar
terms are used in both definitions. So we propose to clarify these
definitions. The term ``covered employee'' (and ``employee'' or
``individual to be tested'') would be defined as a person who performs
a covered function, including persons employed by operators,
contractors engaged by operators, and persons employed by such
contractors. The term ``covered function'' would be defined as an
operations, maintenance, or emergency-response function regulated by
[49 CFR] part 192, 193, or 195 that is performed on a pipeline or LNG
facility. The statement in the present definition of ``covered
employee'' that covered functions do not include clerical, truck
driving, accounting, or other functions not subject to part 192, 193,
or 195 would be deleted as unnecessary.
The definition of ``prohibited drug'' in Sec. 199.3 would be
revised by removing the second sentence, which authorizes operators,
under certain conditions, to test for drugs other than marijuana,
cocaine, opiates, amphetamines, and phencyclidine. This revision is
necessary because specimens collected for purposes of drug testing
under Part 199 may not be tested for any other drugs (49 CFR 40.85). As
indicated by 49 CFR 40.13, operators may collect other specimens to
test for other drugs.
The definition of ``refuse to submit'' in Sec. 199.3 would be
clarified to explain that it applies equally to the terms ``refuse''
and ``refuse to take'' a drug test. Moreover, the definition would be
revised to refer to DOT procedures on refusal to take a drug test (49
CFR 40.191(b)). Under these procedures, refusal to take a drug test
includes submission of an adulterated or substituted specimen. The
definition would be further revised to include a similar definition
proposed to be transferred from Sec. 199.205 regarding alcohol testing
and to refer to DOT procedures on refusal to take an alcohol test (49
CFR 40.261).
Enforcing DOT Procedures
Part 199 refers to the drug and alcohol testing procedures in Part
40 as ``DOT Procedures'' and incorporates these procedures by reference
(Sec. 199.5). Our practice is to enforce compliance with Part 40 as if
it were a Part 199 regulation. To remove any uncertainty about this
enforcement practice, we propose to amend Sec. 199.5 to make it clear
that a violation of Part 40 is a violation of Part 199. In addition, to
further the enforceability of Part 40, we propose to remove from
Sec. 199.5 the statement that in the event of conflict with Part 40,
Part 199 prevails. If there is a substantive difference between Part 40
and Part 199, we will state the difference explicitly in Part 199.
Drug Tests Required
DOT Procedures (49 CFR 40.61) cover the appropriate steps to
collect urine specimens from employees who need medical attention.
Moreover, Sec. 40.61(b)(3) specifically forbids collection from an
unconscious employee. Therefore, we propose to delete the following
sentence from
[[Page 21508]]
Sec. 199.11(b) [or redesignated Sec. 199.105(b)]: ``If an employee is
injured, unconscious, or otherwise unable to evidence consent to the
drug test, all reasonable steps must be taken to obtain a urine
sample.''
Section 199.11(e) prescribes the role of a substance abuse
professional in returning to duty a covered employee who refuses or
fails a drug test. For consistency with Part 40, Sec. 199.11(e) [or
redesignated Sec. 199.105(e)] would be revised to refer to DOT
Procedures.
Medical Review Officers
Section 199.15(b) loosely defines the qualifications required of a
medical review officer (MRO). To assure consistency and compliance with
the detailed MRO qualifications stated in 49 CFR 40.121, we propose to
revise Sec. 199.15(b) [or redesignated Sec. 199.109(b)] to refer to
those qualifications.
Section 199.15(c) states a few functions of medical review
officers, focusing primarily on the review of positive and negative
test results. In contrast, Part 40 covers MRO functions
comprehensively, including the review of reports of tests not performed
for reasons including adulterated or substituted specimens. Therefore,
we propose to amend Sec. 199.15(c) [or redesignated Sec. 199.109(c)] to
state that the MRO must provide functions for the operator as required
by DOT Procedures.
Section 199.15(d)(1) provides that MROs are not required to take
further action if they determine there is a legitimate medical
explanation for a confirmed positive test result other than the
unauthorized use of prohibited drugs. However, Part 40 does require
MROs to take further action in these circumstances. Under Sec. 40.163,
MROs must report all test results to employers. Also, Sec. 199.15(d)(2)
is jumbled and could be misinterpreted to require MROs to refer
individuals with verified positive test results to a substance abuse
professional, when under Part 40 employers make such referrals. So we
propose to amend Sec. 199.15(d) [or redesignated Sec. 199.109(d)] to
state that MROs must report all test results to operators in accordance
with DOT Procedures. Because other Part 40 requirements describe what
employers must do after receiving MRO reports, the existing provisions
in Sec. 199.15(d) regarding further proceedings and evaluation by a
substance abuse professional would be deleted as superfluous.
Retention of Samples and Retesting
Under Sec. 199.17(b), if an MRO determines there is no legitimate
medical explanation for a confirmed positive test result other than the
unauthorized use of a prohibited drug, the ``original sample'' must be
retested if the employee makes a written request for retesting within
60 days of receipt of the final test result from the MRO. This
provision is inconsistent with 49 CFR 40.153(b), which allows employees
only 72 hours to make a timely request for an additional test, and the
request need not be in writing. So we propose to revise Sec. 199.17(b)
[or redesignated Sec. 199.111(b)] to require additional testing if the
employee makes a timely request for additional testing according to DOT
Procedures.
Revised Part 40 requires split specimen collections (49 CFR
40.71(a)). And the reference to DOT Procedures in Sec. Sec. 199.5 and
199.7 will make split specimen collections mandatory under Part 199.
Under the Part 40 split specimen collection process, employers divide
each collected urine specimen into a primary specimen and a split
specimen. If a covered employee requests additional testing, Part 40
requires that the test be done only on the split specimen (49 CFR
40.153).
In view of this requirement, we are concerned about the
appropriateness of the term ``original sample'' in Sec. 199.17(b). We
believe ``original sample'' could be misunderstood to mean ``primary
specimen.'' We propose to amend Sec. 199.17(b) [or redesignated
Sec. 199.111(b)] to indicate that the split specimen must be tested
when a covered employee requests additional testing. Also, since the
concept of ``retesting'' is no longer suitable under this section, the
term would be dropped and replaced by ``testing'' or ``additional
testing''.
Pre-Employment Alcohol Testing
Part 199 does not require operators to conduct pre-employment tests
for alcohol. However, Sec. 199.209 makes it clear that Part 199 does
not affect the authority of operators to conduct tests for alcohol that
are not required by Part 199. We are proposing to amend Sec. 199.209 to
require that if operators conduct pre-employment tests for alcohol, the
tests must be done according to DOT Procedures.
Stand-Down Waivers
Revised Part 40 prohibits employers from temporarily removing
employees from performing safety-sensitive functions based on an
unverified positive drug test result (49 CFR 40.21(a)). At the same
time, Part 40 permits employers to petition DOT agencies to waive this
stand-down restriction (49 CFR 40.21(b)). To facilitate this waiver
process, we are proposing a new procedural rule, Sec. 199.9, for
operators to follow when seeking from RSPA a waiver of the Part 40
stand-down restriction. The proposed rule advises operators how they
should prepare stand-down waiver requests and to whom the requests
should be sent.
Checking Previous Test Results
Under revised Part 40, employers may not hire or use any person in
a safety-sensitive position unless they seek to obtain from previous
DOT-regulated employers of the person certain drug and alcohol testing
information (49 CFR 40.25). To call attention to this new requirement,
we propose to refer to it in new Sec. 199.11. In addition, consistent
with Sec. 40.25, we propose to require operators to remove employees
from covered functions, pending successful completion of the return-to-
duty process, if after reviewing the information the operator learns
the employee violated a DOT agency drug or alcohol testing rule.
Release of Information
New Part 40 authorizes employers to release employee-specific drug
and alcohol testing information without the employee's consent in
connection with certain legal proceedings (Sec. 40.323). However,
Sec. 199.23(b) does not permit releases of drug information in legal
proceedings without employee consent. And although Sec. 199.231(g)
permits releases of alcohol information without employee consent in
certain legal proceedings, Sec. 199.231(g) is not consistent with
Sec. 40.323 in several respects. In addition, Sec. 199.23(b) limits the
drug test information operators must furnish RSPA or a state pipeline
safety agency regardless of employee consent to information related to
accident investigations. A similar limitation is not in Sec. 199.231(d)
governing the release to RSPA and state agencies of alcohol test
information, nor is it in Sec. 40.331 governing the release of name-
specific alcohol and drug information to DOT and state agencies.
Consequently, we propose to amend Sec. 199.23(b) [redesignated
Sec. 199.117(b)] to provide that operators may or are required to
release information without the employee's consent as provided by DOT
Procedures. Section 199.231(g) would be amended to permit releases
without consent in legal proceedings as provided by DOT Procedures.
[[Page 21509]]
Regulatory Analyses and Notices
Executive Order 12866 and DOT Policies and Procedures
RSPA does not consider this proposed rulemaking to be a significant
regulatory action under Section 3(f) of Executive Order 12866 (58 FR
51735; Oct. 4, 1993). Therefore, the Office of Management and Budget
(OMB) has not received a copy of this rulemaking to review. RSPA also
does not consider this proposed rulemaking to be significant under DOT
regulatory policies and procedures (44 FR 11034: February 26, 1979).
The proposed rules are non-significant because they would merely
change Part 199 to conform it to revised 49 CFR part 40, which has
already had extensive comment and analysis. The economic impacts of the
underlying Part 40 changes were analyzed in connection with the Part 40
rulemaking, and the proposed rules would not have any incremental
economic impacts on their own. Regarding the clarifying and
organizational changes we are proposing that are not directly due to
revised Part 40, our assessment of these changes is that the economic
impact would be too minimal to warrant the preparation of a Regulatory
Evaluation.
Regulatory Flexibility Act
The proposed rules are consistent with revised Part 40 and have no
incremental economic impacts of their own. Therefore, based on the
facts available about the anticipated impacts of this proposed
rulemaking, I certify, pursuant to Section 605 of the Regulatory
Flexibility Act (5 U.S.C. 605), that the proposed rules, if adopted as
final, would not have a significant impact on a substantial number of
small entities.
Paperwork Reduction Act
All the information collection requirements of Part 40 have been
analyzed and approved by OMB. These proposed rules would impose no
information collection requirements that have not already been reviewed
in the Part 40 rulemaking. So no further Paperwork Reduction Act review
is necessary.
Executive Order 12612
The proposed rules would not have a substantial direct effect on
states, on the relationship between the Federal Government and the
states, or on the distribution of power and responsibilities among the
various levels of Government. Therefore, in accordance with Executive
Order 12612 (52 FR 41685; October 30, 1987), we have determined that
the proposed rules would not have sufficient federalism implications to
warrant preparation of a federalism assessment.
Executive Order 13084
The proposed rules have been analyzed in accordance with the
principles and criteria contained in Executive Order 13084,
``Consultation and Coordination with Indian Tribal Governments.''
Because the proposed rules would not significantly or uniquely affect
the communities of the Indian tribal governments and would not impose
substantial direct compliance costs, the funding and consultation
requirements of Executive Order 13084 do not apply.
Executive Order 13132
Revised Part 40 has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism''). The
proposed rules have no incremental Federalism impacts for purposes of
Executive Order 13132. So no further analysis is needed for Federalism
purposes.
Impact on Business Processes and Computer Systems
We do not want to impose new requirements that would mandate
business process changes when the resources necessary to implement
those requirements would otherwise be applied to ``Y2K'' or related
computer problems. The proposed rules would not mandate business
process changes or require modifications to computer systems. Because
the proposed rules would not affect the ability of organizations to
respond to those problems, we are not proposing to delay the
effectiveness of the requirements.
Unfunded Mandates Reform Act of 1995
The proposed rules would not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. The rules would not result in
costs of $100 million or more to either state, local, or tribal
governments, in the aggregate, or to the private sector, and would be
the least burdensome alternative that achieves the objective of the
rules.
National Environmental Policy Act
We have analyzed the proposed rules for purposes of the National
Environmental Policy Act (42 U.S.C. 4321 et seq.). Because the
proposed rules parallel present requirements of revised Part 40 or
involve clarifying or organizational changes, we have preliminarily
determined that the proposed rules would not significantly affect the
quality of the human environment. A final determination on
environmental impact will be made after the end of the comment period.
List of Subjects in 49 CFR Part 199
Drug testing, Pipeline safety, Reporting and recordkeeping
requirements, Safety, Transportation.
In consideration of the foregoing, we propose to amend 49 CFR Part
199 as follows:
PART 199--DRUG AND ALCOHOL TESTING
1. The authority citation for part 199 continues to read as
follows:
Authority: 49 U.S.C. 5103, 60102, 60104, 60108, 60117,
and 60118; 49 CFR 1.53.
2. The heading for subpart A is revised to read as follows:
Subpart A--General
3. In Sec. 199.1, paragraph (a) is revised, paragraph (b) is
removed, and paragraphs (c) and (d) are redesignated as paragraphs (b)
and (c), respectively, to read as follows:
Sec. 199.1 Scope and compliance.
(a) This part requires operators of pipeline facilities subject to
part 192, 193, or 195 of this chapter to test covered employees for the
presence of prohibited drugs and alcohol.
* * * * *
4. Section 199.2 is added to read as follows:
Sec. 199.2 Applicability.
This part does not apply to covered functions performed on--
(a) Master meter systems, as defined in Sec. 191.3 of this chapter;
or
(b) Pipeline systems that transport only petroleum gas or petroleum
gas/air mixtures.
5. In Sec. 199.3, the introductory text is revised, the definitions
of ``Covered employee'' and ``Refuse to submit'' are removed, the
definitions of ``Covered function,'' ``DOT Procedures,'' and
``Prohibited drug'' are revised, and definitions of ``Covered employee,
employee, or individual to be tested,'' ``Performs a covered
function,'' and ``Refuse to submit, refuse, or refuse to take
are added in alphabetical order, to read as follows:
Sec. 199.3 Definitions.
As used in this part--
* * * * *
Covered employee, employee, or individual to be tested
means a person who performs a covered function, including persons
employed by operators, contractors engaged by
[[Page 21510]]
operators, and persons employed by such contractors.
Covered function means an operations, maintenance, or
emergency-response function regulated by part 192, 193, or 195 of this
chapter that is performed on a pipeline or LNG facility.
DOT Procedures means the Procedures for Transportation
Workplace Drug and Alcohol Testing Programs published by the Office of
the Secretary of Transportation in part 40 of this title.
* * * * *
Performs a covered function includes actually performing,
ready to perform, or immediately available to perform a covered
function.
* * * * *
Prohibited drug means any of the following substances
specified in Schedule I or Schedule II of the Controlled Substances Act
(21 U.S.C. 812): marijuana, cocaine, opiates, amphetamines, and
phencyclidine (PCP).
* * * * *
Refuse to submit, refuse, or refuse to take means
behavior consistent with DOT Procedures concerning refusal to take a
drug test or refusal to take an alcohol test.
* * * * *
6. Section 199.5 is revised to read as follows:
Sec. 199.5 DOT procedures.
The anti-drug and alcohol programs required by this part must be
conducted according to the requirements of this part and DOT
Procedures. Terms and concepts used in this part have the same meaning
as in DOT Procedures. Violations of DOT Procedures with respect to
anti-drug and alcohol programs required by this part are violations of
this part.
6a. Subpart B is redesignated as subpart C.
7. Existing Sec. Sec. 199.7, 199.9, 199.11, 199.13, 199.15, 199.17,
199.19, 199.21, 199.23, and 199.25 are redesignated as
Sec. Sec. 199.101, 199.103, 199.105, 199.107, 199.109, 199.111,
199.113, 199.115, 199.117, and 199.119, respectively, in new subpart B,
and a subpart B heading is added to read as follows:
Subpart B--Drug Testing
8. New Sec. 199.9 is added to subpart A to read as follows:
Sec. 199.9 Stand-down waivers.
(a) Each operator who seeks a waiver under Sec. 40.21 of this title
from the stand-down restriction shall submit an application for waiver
in duplicate to the Associate Administrator for Pipeline Safety,
Research and Special Programs Administration, Department of
Transportation, Washington, DC 20590.
(b) Each application must:
(1) Identify Sec. 40.21 of this title as the rule from which the
waiver is sought;
(2) Explain why the waiver is requested and describe the employees
to be covered by the waiver;
(3) Contain the information required by Sec. 40.21 of this title
and any other information or arguments available to support the waiver
requested; and
(4) Unless good cause is shown in the application, be submitted at
least 60 days before the proposed effective date of the waiver.
(c) No public hearing or other proceeding is held directly on an
application before its disposition under this section. If the Associate
Administrator determines that the application contains adequate
justification, he or she grants the waiver. If the Associate
Administrator determines that the application does not justify granting
the waiver, he or she denies the application. The Associate
Administrator notifies each applicant of the decision to grant or deny
an application.
9. New Sec. 199.11 is added to subpart A to read as follows:
Sec. 199.11 Checking Previous Test Results.
(a) As required by DOT Procedures, no operator may hire or use any
person to perform a covered function unless the operator has sought to
obtain from previous DOT-regulated employers of the person certain drug
and alcohol testing information.
(b) If, after reviewing the information, the operator learns the
employee violated a DOT agency drug or alcohol testing rule, the
operator shall remove the employee from covered functions, pending
successful completion of the return-to-duty process.
10. In redesignated Sec. 199.103, paragraph (a)(1) is amended by
removing the term ``Sec. 199.15(d)(2)'' and adding ``DOT Procedures''
in its place, and by revising paragraph (b)(2) to read as follows:
Sec. 199.103 Use of persons who fail or refuse a drug test.
* * * * *
(b) * * *
(2) Been considered by the medical review officer in accordance
with DOT Procedures and been determined by a substance abuse
professional to have successfully completed required education or
treatment; and
* * * * *
11. In redesignated Sec. 199.105, paragraph (b) is revised,
paragraphs (c)(3) and (c)(4) are amended by removing the term
``Sec. 199.25'' and adding ``Sec. 199.119'' in its place wherever the
term appears, and paragraph (e) is revised, to read as follows:
Sec. 199.105 Drug tests required.
* * * * *
(b) Post-accident testing. As soon as possible but no later
than 32 hours after an accident, an operator shall drug test each
employee whose performance either contributed to the accident or cannot
be completely discounted as a contributing factor to the accident. An
operator may decide not to test under this paragraph but such a
decision must be based on the best information available immediately
after the accident that the employee's performance could not have
contributed to the accident or that, because of the time between that
performance and the accident, it is not likely that a drug test would
reveal whether the performance was affected by drug use.
* * * * *
(e) Return to duty testing. A covered employee who refuses
to take or has a positive drug test may not return to duty in the
covered function until the covered employee has complied with DOT
Procedures on return to duty and the role of a substance abuse
professional.
* * * * *
12. In redesignated Sec. 199.109, paragraphs (b), (c), and (d) are
revised to read as follows:
Sec. 199.109 Review of drug testing results.
* * * * *
(b) MRO qualifications. Each MRO must be a licensed
physician who has the qualifications required by DOT Procedures.
(c) MRO duties. The MRO shall perform functions for the
operator as required by DOT Procedures.
(d) MRO reports. The MRO shall report all drug test results
to the operator in accordance with DOT Procedures.
* * * * *
13. In redesignated Sec. 199.111, the section heading and the first
sentence of paragraph (b) are revised, the second sentence of paragraph
(b) and paragraph (c) are amended by removing the term ``retesting''
and adding ``testing'' in its place wherever the term appears, and the
last sentence of paragraph (b) is amended by removing the term
``retest'' and adding ``additional test'' in its place, to read as
follows:
[[Page 21511]]
Sec. 199.111 Retention of samples and additional testing.
* * * * *
(b) If the medical review officer (MRO) determines there is no
legitimate medical explanation for a confirmed positive test result
other than the unauthorized use of a prohibited drug, and if timely
additional testing is requested by the employee according to DOT
Procedures, the split specimen must be tested. * * *
* * * * *
14. The first sentence of redesignated Sec. 199.117(b) is revised
to read as follows:
Sec. 199.117 Recordkeeping.
* * * * *
(b) Information regarding an individual's drug testing results or
rehabilitation may be released only upon the written consent of the
individual, except as provided by DOT Procedures. * * *
Sec. 199.201 [Removed and Reserved]
15. Section 199.201 is removed and reserved.
16. In Sec. 199.202, the first sentence is revised to read as
follows:
Sec. 199.202 Alcohol misuse plan.
Each operator shall maintain and follow a written alcohol misuse
plan that conforms to the requirements of this part and DOT Procedures
concerning alcohol testing programs. * * *
Sec. Sec. 199.203, 199.205 [Removed and Reserved]
17. Sections 199.203 and 199.205 are removed and reserved.
18. Section 199.207 is redesignated as new Sec. 199.7 and
transferred to subpart A, and redesignated Sec. 199.7 is amended by
removing the term ``subpart'' and adding ``part'' in its place wherever
the term appears.
19. In Sec. 199.209, the existing text is designated as paragraph
(a) and new paragraph (b) is added to read as follows:
Sec. 199.209 Other requirements imposed by operators.
* * * * *
(b) As an operator, you may, but are not required to, conduct pre-
employment alcohol testing under this part. If you choose to conduct
pre-employment alcohol testing, you must comply with the following
requirements:
(1) You must conduct a pre-employment alcohol test before the first
performance of covered functions by every covered employee (whether a
new employee or someone who has transferred to a position involving the
performance of covered functions).
(2) You must treat all covered employees the same for the purpose
of pre-employment alcohol testing (i.e., you must not test some covered
employees and not others).
(3) You must conduct the pre-employment tests after making a
contingent offer of employment or transfer, subject to the employee
passing the pre-employment alcohol test.
(4) You must conduct all pre-employment alcohol tests using the
alcohol testing procedures in DOT Procedures.
(5) You must not allow a covered employee to begin performing
covered functions unless the result of the employee's test indicates an
alcohol concentration of less than 0.04.
Sec. 199.213 [Removed and Reserved]
20. Section 199.213 is removed and reserved.
Sec. 199.225 [Amended]
21. In Sec. 199.225, paragraphs (a)(2)(ii) and (b)(4)(ii) are
removed and reserved.
22. Section 199.231(g) is revised to read as follows:
Sec. 199.231 Access to facilities and records.
* * * * *
(g) An operator may disclose information without employee consent
as provided by DOT Procedures concerning certain legal proceedings.
* * * * *
Issued in Washington, DC, on March 30, 2001.
Stacey L. Gerard,
Associate Administrator for Pipeline Safety.
[FR Doc. 01-9412 Filed 4-27-01; 8:45 am]
BILLING CODE 4910-60-P