[Federal Register Volume 63, Number 51 (Tuesday, March 17, 1998)]
[Rules and Regulations]
[Pages 12998-13000]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-6859]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Part 199
[RSPA Docket PS-128; Amendment 199-15]
RIN 2137-AC84
Drug and Alcohol Testing; Substance Abuse Professional Evaluation
for Drug Use
AGENCY: Research and Special Programs Administration, DOT.
ACTION: Final rule.
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SUMMARY: In this final rule, the Research and Special Programs
Administration (RSPA) modifies current procedures in its drug testing
regulations by requiring a face-to-face evaluation by substance abuse
professionals (SAP) for pipeline employees who have either received a
positive drug test or have refused a drug test required by RSPA. In
addition, the SAP could require a pipeline employee to complete a
rehabilitation program before being eligible to return to duty. Similar
requirements are included in the drug testing regulations of the other
modal administrations. Adding these requirements will ensure conformity
among the modal administrations which will assist with the overall
management of RSPA's drug testing regulations.
DATES: This rule is effective April 16, 1998.
FOR FURTHER INFORMATION CONTACT: Catrina M. Pavlik, Drug/Alcohol
Program Analyst, Research and Special Programs Administration, Office
of Pipeline Safety, Room 2335, 400 Seventh Street, SW, Washington, DC
20590. Telephone: (202)366-6199, Fax: (202)366-4566, e-mail:
[email protected]
SUPPLEMENTARY INFORMATION:
Background
In accordance with 49 U.S.C. 60601 of the pipeline safety law, RSPA
administers drug testing regulations for pipeline operators.
On August 20, 1997, RSPA published in the Federal Register (62 FR
44250, Docket No. PS-128, Amendment 15) a notice of proposed rulemaking
to modify current procedures in its drug testing regulations governing
situations in which pipeline employees test positive on a drug test.
Because similar requirements are found in the drug testing regulations
of the other modal administrations, and in RSPA's alcohol testing
regulations, RSPA proposed to make the procedures and policy in those
regulations applicable to pipeline operators under the drug testing
regulations. RSPA proposed to require pipeline operators to utilize a
substance abuse professional (SAP) to evaluate pipeline employees who
have either received a positive drug test or have refused a drug test
required by RSPA. In addition, the SAP could require an employee to
complete a rehabilitation program before being eligible to return to
duty, if needed. RSPA also proposed to revise the word ``employee'' to
``covered employee'' and to add the definition for ``covered
function.'' Comments to the notice of proposed rulemaking were due on
or before October 20, 1997.
Comments Received
RSPA received 10 comments: 6 from pipeline operators, 1 from a
trade association and 3 from consortia. The comments fell within the
following general categories: (1) Review of Drug Testing Results; (2)
Drug Test Required--Return to Duty Testing; (3) SAP Determines Follow-
up Testing; (4) Qualification for a SAP; and (5) Other Comments. The
comments are addressed based on those categories.
1. Review of Drug Testing Results
The notice of proposed rulemaking proposed that if the Medical
Review Officer (MRO) determines, after appropriate review, that there
is no legitimate medical explanation for the confirmed positive test
result, other than the unauthorized use of prohibited drug(s), the MRO
shall verify the test result as positive. If unauthorized use is
[[Page 12999]]
found, the MRO shall require that the covered employee who engages in
conduct prohibited under Section 199.9, be evaluated face-to-face by a
substance abuse professional who shall determine what assistance, if
any, the covered employee needs in resolving problems associated with
illegal drug use.
All ten commenters supported this portion of the notice of proposed
rulemaking. They stated that they were already performing this function
for employees that are covered by another operating administration.
They also said that conformity among the modes would make administering
this program much easier.
RSPA received 2 comments on the continued employment of a covered
employee after a positive drug test result or a refusal to test. In
addressing the concerns of these commenters, RSPA has decided to change
the language so that the MRO, not only must refer the covered employee
to a SAP, but must also refer him/her to the personnel or
administrative officer for the pipeline operator. This will enable the
operator to follow through with internal proceedings that are in
accordance with the operator's anti-drug plan.
2. Drug Test Required--Return To Duty Testing
The notice proposed language in Section 199.11(e) which stated that
a covered employee who refuses to take or does not pass a drug test may
not return to duty in the covered function until the covered employee
has been evaluated by a SAP, and has properly followed any prescribed
rehabilitation program.
We received 3 comments to review and clarify the language in this
section. The first commenter was concerned that the proposed language
creates the inference that a covered employee who refuses to take a
drug test or who does not pass a drug test has a right to return to
work upon evaluation by a SAP. Specifically, the concern was that the
wording may have the unintended effect of altering the employer/
employee relationship and requiring an employer to provide a
rehabilitation opportunity to an employee, with that employee
thereafter having a right to return to work for the employer. The
second commenter wanted RSPA to clarify that the evaluation conducted
by the SAP would be done on a face-to-face basis. The third commenter
requested clarification of the ``pass or fail'' language.
RSPA agrees with the three comments and is revising the phrasing of
the language in Section 199.11(e) along with the previously mentioned
change in Section 199.15(d)(2). This will not alter the existing
employer/employee relationship and will not require that the employer
provide rehabilitation to an employee. RSPA is also clarifying that the
SAP evaluation must be conducted on a face-to-face basis, and has
changed the language to use ``positive or negative.''
One comment suggested that the follow-up testing requirements be
separated from the return-to-duty requirements. RSPA has modified
Section 199.11 to add Follow-Up Testing under a new subsection (f).
3. SAP Determines Follow-up Testing
RSPA received 2 comments requesting clarification of the language
on the role of the MRO in relation to the SAP when determining the
follow-up testing schedule. After further consideration, RSPA has
agreed to remove the consultation requirement between the MRO and the
SAP when determining the follow-up testing schedule. The role of
determining the follow-up testing schedule will be the sole function of
the SAP.
4. Qualifications for a SAP
RSPA received 1 comment requesting specific language on an MRO's
ability to serve as a SAP. This change is not necessary because the
definition of a SAP, found in 49 CFR Part 40, does not prohibit an MRO
from becoming a SAP.
5. Other Comments
RSPA received 2 comments from pipeline operators requesting changes
in parts of the regulations that were not covered by the notice of
proposed rulemaking, such as, substituting a 72 hour time period for
the 60 day time period requirement, eliminating the RSPA option for the
pipeline operator to require payment in advance for a retest, and
eliminating the RSPA requirement for an MRO to declare a specimen
negative that has been determined to be scientifically insufficient.
RSPA received 1 comment requesting clarification on whether a
positive pre-employment test result necessitates return-to-duty and
follow-up testing. RSPA currently addresses this in Section 199.11(a).
It states that no operator may hire or contract any person unless that
person passes a drug test or is covered by an anti-drug program that
conforms to the requirements of the drug testing regulations.
Advisory Committee Review
The Technical Hazardous Liquid Pipeline Safety Standards Committee
(THLPSSC) and the Technical Pipeline Safety Standards Committee (TPSSC)
met on November 18, 1997, to consider the items discussed in the August
20, 1997, Notice of Proposed Rulemaking, in Docket No. PS-128. (The
THLPSSC and TPSSC were established by statute to evaluate the technical
feasibility, reasonableness, and practicability of proposed
regulations.) The consensus of the THLPSSC and TPSSC was to support the
Notice of Proposed Rulemaking.
Regulatory Analyses and Notices
Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule requires that pipeline employees who either test
positive for prohibited drugs or refuse to be tested must be evaluated
by a substance abuse professional (SAP) who could require that an
employee undergo rehabilitation prior to the employee's return to duty
in a covered function. The reason for this rule change is to conform
RSPA's drug testing program to its alcohol testing program as well as
the drug and alcohol testing programs of all other DOT modes.
RSPA concluded that because all pipeline companies already employ
SAPs for their alcohol testing programs it is likely the same
professional will be used to perform this same function on the drug
testing program. Furthermore, this final rule requires that employees
who test positive could be required to undergo rehabilitation before
their return to duty. RSPA, however, does not require that the employer
pay for this treatment. Many employees may also be terminated or placed
in non-covered functions rather than be given the opportunity for
treatment. Therefore, the cost of the treatment is not the financial
responsibility of the employer. Another factor that was taken into
account is that the most recent drug testing results show that only
0.7% of the employees tested positive for drugs. Therefore, the number
of employees who would need to be evaluated by a SAP is minimal. Given
the fact that pipeline companies already employ or presently contract
with SAPs, they are not required to pay for or offer rehabilitation for
employees who test positive, and that a minimal number of employees
would require evaluation, RSPA believes that this rule will have little
to no economic impact on any pipeline company. RSPA finds that this
rule is not significant under Section 3(f) of Executive Order 12866 and
also not significant under the Regulatory Policies and Procedures of
the Department of Transportation.
[[Page 13000]]
Executive Order 12612
This final rule would not have substantial direct effect on states,
on the relationship between the Federal Government and the states, or
on the distribution of power and responsibilities among the various
levels of Government. Therefore, in accordance with Executive Order
12612 (52 FR 41685; October 30, 1987), RSPA has determined that this
final rule would not have sufficient federalism implications to warrant
preparation of a federalism assessment.
Regulatory Flexibility Act
Because this final rule will impose little to no additional cost on
pipeline operators (see discussion on the regulatory evaluation), RSPA
certifies under section 605 of the Regulatory Flexibility Act (5
U.S.C.) that this rule will not have a significant economic impact on a
substantial number of small entities.
Paperwork Reduction Act
There are no new information collection requirements in this rule.
Unfunded Mandates Reform Act of 1995
This final rule does not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. It does not result in costs of
$100 million or more to either State, local, or tribal governments, in
the aggregate, or to the private sector, and is the least burdensome
alternative that achieves the objective of the rule.
List of Subjects in 49 CFR Part 199
Drug testing, Pipeline safety.
In consideration of the foregoing RSPA amends, 49 CFR part 199 as
follows:
PART 199--[AMENDED]
1. The authority citation for part 199 continues to read as
follows:
Authority: 49 App. U.S.C. 60101 et seq.; 49 CFR 1.53.
2. Section 199.3 is amended by removing the definition of Employee
and adding new definitions of Covered employee and Covered function to
read as follows:
Sec. 199.3 Definitions.
* * * * *
Covered employee means a person who performs, on a pipeline or LNG
facility, an operations, maintenance, or emergency-response function
regulated by part 192, 193, or 195 of this chapter. This does not
include clerical, truck driving, accounting, or other functions not
subject to part 192, 193, or 195. The person may be employed by the
operator, be a contractor engaged by the operator, or be employed by
such a contractor.
Covered function means an operations, maintenance, or emergency-
response function conducted on the pipeline or LNG facility that is
regulated by part 192, 193, or 195.
* * * * *
3. Section 199.11 is amended by revising paragraph (e) and adding
paragraph (f) to read as follows:
Sec. 199.11 Drug tests required.
* * * * *
(e) Return to duty testing. A covered employee who refuses to take
or has a positive drug test may not return to duty in the covered
function until the covered employee has had a face-to-face evaluation
conducted by a substance abuse professional, and has properly followed
any prescribed assistance.
(f) Follow-up testing. A covered employee who refuses to take or
has a positive drug test shall be subject to unannounced follow-up drug
tests administered by the operator following the covered employee's
return to duty. The number and frequency of such follow-up testing
shall be determined by a substance abuse professional, but shall
consist of at least six tests in the first 12 months following the
covered employee's return to duty. In addition, follow-up testing may
include testing for alcohol as directed by the substance abuse
professional, to be performed in accordance with 49 CFR part 40.
Follow-up testing shall not exceed 60 months from the date of the
covered employee's return to duty. The substance abuse professional may
terminate the requirement for follow-up testing at any time after the
first six tests have been administered, if the substance abuse
professional determines that such testing is no longer necessary.
4. Section 199.15 is amended by revising paragraph (d)(2) and
adding new paragraphs (e) and (f) to read as follows:
Sec. 199.15 Review of drug testing results.
* * * * *
(d) * * *
(2) If the MRO determines, after appropriate review, that there is
no legitimate medical explanation for the confirmed positive test
result other than the unauthorized use of a prohibited drug, the MRO
shall refer:
(i) The individual tested to a personnel or administrative office
for further proceedings in accordance with the operator's anti-drug
plan; and
(ii) For evaluation by a SAP who shall determine what assistance,
if any, the employee needs in resolving problems associated with drug
misuse.
* * * * *
(e) Evaluation and rehabilitation may be provided by the operator,
by a substance abuse professional under contract with the operator, or
by a substance abuse professional not affiliated with the operator. The
choice of substance abuse professional and assignment of costs shall be
made in accordance with the operator/employee agreements and operator/
employee policies.
(f) The operator shall ensure that a substance abuse professional,
who determines that a covered employee requires assistance in resolving
problems with drug abuse, does not refer the covered employee to the
substance abuse professional's private practice or to a person or
organization from which the substance abuse professional receives
remuneration or in which the substance abuse professional has a
financial interest. This paragraph does not prohibit a substance abuse
professional from referring a covered employee for assistance provided
through:
(1) A public agency, such as a State, county, or municipality;
(2) The operator or a person under contract to provide treatment
for drug problems on behalf of the operator;
(3) The sole source of therapeutically appropriate treatment under
the employee's health insurance program; or
(4) The sole source of therapeutically appropriate treatment
reasonably accessible to the employee.
Issued in Washington, DC, on March 11, 1998.
Kelley S. Coyner,
Acting Administrator.
[FR Doc. 98-6859 Filed 3-16-98; 8:45 am]
BILLING CODE 4910-60-P
