[Federal Register Volume 59, Number 231 (Friday, December 2, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29391]
[[Page Unknown]]
[Federal Register: December 2, 1994]
_______________________________________________________________________
Part VII
Department of Transportation
_______________________________________________________________________
Research and Special Programs Administration
_______________________________________________________________________
49 CFR Part 199
Alcohol Misuse Prevention Program; Final Rule
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Research and Special Programs Administration
49 CFR Part 199
[Docket No. PS-128, Amdt. No. 199-10]
RIN 2137-AC21
Alcohol Misuse Prevention Program
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Response to petition for reconsideration and request for
clarification; Final rule.
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SUMMARY: This action responds to a petition for reconsideration and
request for clarification of a final rule, published February 15, 1994
(59 FR 7426), requiring operators of gas, hazardous liquid, and carbon
dioxide pipelines and liquefied natural gas facilities subject to the
pipeline safety regulations to implement alcohol misuse prevention
programs for employees who perform certain safety-sensitive functions.
The petition for reconsideration is granted in part and denied in part,
for the reasons set forth below.
EFFECTIVE DATE: January 1, 1995.
FOR FURTHER INFORMATION CONTACT: Mary M. Crouter, Special Counsel,
Office of the Chief Counsel, RSPA, DOT, 400 Seventh Street, SW.,
Washington, DC 20590-0001 (202-366-4400) or the RSPA Dockets Unit,
(202) 366-4453, for copies of this final rule or other material in the
docket.
SUPPLEMENTARY INFORMATION:
Background
On February 15, 1994, RSPA published a final rule (59 FR 7426) to
require operators of gas, hazardous liquid, and carbon dioxide
pipelines and liquefied natural gas (LNG) facilities, who are subject
to 49 CFR part 192, 193, or 195, to implement alcohol misuse prevention
programs for employees who perform certain covered functions. On March
15, 1994, RSPA received a Joint Petition for Reconsideration and
Request for Clarification (Jt. Pet.) of the final rule from the
American Gas Association and the Interstate Natural Gas Association of
America (Petitioners). Discussion of the issues and RSPA's responses
follow.
1. RSPA Should Stay the Effective Date of the Final Rule on Alcohol
Misuse Prevention Programs Until RSPA Issues Final Rules in Currently
Pending Rulemaking Proceedings
The Petitioners noted that, in addition to the alcohol misuse
rules, DOT also published two proposed rules on the use of alcohol
screening devices and the use of blood alcohol tests in post-accident
and reasonable suspicion situations when an evidential breath testing
device (EBT) is not reasonably available.
The Petitioners request that RSPA stay implementation of the
alcohol misuse rule until such time as DOT issues final regulations
concerning screening devices and blood tests. The Petitioners contend
that delaying implementation of the final rule does not present a
safety issue because the type of alcohol testing required by the rule
(e.g., post-accident, reasonable suspicion) is already performed by
most natural gas utilities and pipeline operators.
The Petitioners note that the proposal on alternate screening
devices would allow employers to use them to determine the presence of
alcohol and then perform confirmation tests using approved EBTs. With
regard to the proposed rule on blood testing, the Petitioners note that
the rule would allow blood tests in post-accident and reasonable
suspicion situations where operators may not have reasonable access to
an EBT. The Petitioners are concerned that, to comply with the current
final rule, operators will have to purchase EBTs and train operators,
or enter into contractual agreements for testing with EBTs, only to
learn that DOT has now issued a rule authorizing blood testing. The
Petitioners are concerned that pipeline operators will unnecessarily
spend thousands of dollars to comply with a rule that may soon be
revised. In addition, Petitioners request that, since pipeline
operators are not required to conduct pre-employment or random alcohol
testing, RSPA should allow blood testing as an unqualified alternative
to EBTs. The Petitioners state that in the pipeline industry, where
many employees are located at remote sites, there will be numerous
situations where operators will not be able to transport quickly an
employee to a testing facility or have a breath alcohol technician and
equipment readily available. Moreover, the Petitioners contend that
mandating the use of EBTs will significantly add to the costs of
carrying out alcohol prevention programs, in terms of procuring new
equipment, developing training manuals, and instructing employees on
their use, even though there exists a real possibility that operators
will be unable to use the devices in the majority of testing
situations.
The Petitioners note that the Omnibus Transportation Employee
Testing Act of 1991 did not apply to the pipeline industry, and
therefore RSPA is not constrained by the Act in promulgating alcohol
regulations. The Petitioners also note that DOT's regulations attempt
to protect employees from the invasiveness of blood testing, by
requiring the use of EBTs. Petitioners contend, however, that the need
for protection is most necessary in a random test, where the employee
has done nothing to warrant being singled out for testing. In contrast,
Petitioners state that, in the case of a post-accident or reasonable
suspicion test, employee protection ``is counterbalanced by the need to
establish if alcohol use is a threat to safety or has played a role in
an accident.'' (Jt. Pet. at 8).
RSPA Response. RSPA is denying the Petitioners' request. DOT's
alcohol testing regulations are based on the concept that evidential
breath testing is the preferred method of testing for the presence of
alcohol. The reasons underlying the decision to select breath testing
were discussed at some length in the Common Preamble (59 FR 7315).
Evidential breath testing devices are reliable and highly accurate at
detecting even low alcohol concentrations, and their use is possible in
all transportation settings because they are portable. The devices have
been in use a long time, and all States accept EBT results as reliable
evidence of an individual's violation of a law establishing a per se
prohibited blood alcohol concentration, as long as the devices are
properly calibrated and operated by trained personnel. As important,
EBTs provide an immediate confirmed result, which enables the immediate
removal of an employee who has misused alcohol.
In contrast, blood alcohol testing is invasive, does not provide an
immediate result, and requires extensive sample collection, shipping,
and laboratory analysis procedures to implement. The NPRM on blood
testing proposed to allow blood testing only in a limited set of
circumstances where an EBT is not readily available. As stated in the
preamble to the NPRM,
[B]ecause of its greater invasiveness and because it does not
produce an immediate result, the use of blood alcohol testing is
intended to be used only in those reasonable suspicion and post-
accident testing circumstances where it is not practicable to use
breath testing. Blood alcohol testing is not intended, under the
proposal, to be an equal alternative method that an employer can
choose as a matter of preference.
59 FR 7367.
Regardless of whether the blood testing proposal is adopted, we
believe that the pipeline industry must make reasonable efforts to
arrange for the use of a sufficient number of EBTs to conduct
reasonable suspicion and post-accident testing. Pipeline operators may
arrange for the use of EBTs through purchase, lease, or contract with a
consortium or other third-party provider. An operator need not purchase
EBTs, but can make arrangements with a third party provider for those
relatively few reasonable suspicion or post-accident tests that may
need to be conducted. RSPA's experience with drug testing is that fewer
than 3% of the total tests conducted have been in post-accident and
reasonable suspicion situations.
We do not expect an operator to arrange for an EBT at every
possible testing location, but an operator can certainly arrange for
EBTs in locations where substantial numbers of employees are
concentrated, and at any locations where accident or leak history
suggests the need for an EBT. Large operators (those with more than 50
covered employees) should not encounter difficulty in arranging for the
use of EBTs by the January 1, 1995 compliance date. EBTs are readily
available for purchase from several manufacturers, and the inventory of
EBTs is sufficient to enable most manufacturers to ship EBTs in five to
ten days. In addition to inventory, there is sufficient production
capacity to manufacture approximately 7,500 new units each month. The
National Highway Traffic Safety Administration (NHTSA) has issued final
Model Specifications for the performance and testing of alcohol
screening devices (August 2, 1994; 59 FR 39382), and will soon publish
a Conforming Products List (CPL) identifying devices that meet the
Model Specifications. The CPL is expected to include several
preliminary breath testing devices (PBTs) and at least one saliva
device.
Pipeline operators were advised of the final alcohol rule on
February 15, 1994, allowing them almost one year (for large operators)
and almost two years (for small operators) to make preparations for
compliance with their respective January 1, 1995, and January 1, 1996
dates. Issuance of this decision on the petition for reconsideration
should resolve any remaining uncertainty and provide sufficient time
for operators to achieve compliance by the respective compliance dates.
2. RSPA Should Clarify Its Position on Dual Modal Coverage
The Petitioners contend that the RSPA final rule does not make
clear the status of employees who may be subject to both the RSPA and
the Federal Highway Administration (FHWA) rules. The Petitioners state
that the Common Preamble to the DOT final rules (59 FR 7301, 7377)
``specifically includes the example of an employee that is a pipeline
worker and holds a commercial drivers license.'' (Jt. Pet. at 8). The
Petitioners state that the Common Preamble states that, based upon an
employee's major job function, an employer may designate an employee as
either a pipeline employee or a driver for purposes of random alcohol
testing. (59 FR 7337). Petitioners contend that DOT employees have made
contradictory statements regarding this issue, and urge RSPA to clarify
that employees who perform pipeline functions the majority of the time,
would not have to be tested under the FHWA rules.
RSPA Response. RSPA is granting the request to clarify this issue,
but is denying the Petitioners' request to classify an employee, for
testing purposes, solely by the percentage of time the employee spends
performing pipeline functions. Therefore, no change to the rule itself
is necessary.
The Omnibus Transportation Employee Testing Act of 1991 (Omnibus
Act) amended the Commercial Motor Vehicle Safety Act of 1986 (now
codified in 49 U.S.C. 31306) to require that all drivers of commercial
motor vehicles (CMVs) who are required to obtain commercial driver's
licenses (CDLs), be subject to testing for the illegal use of alcohol
and controlled substances.
Therefore, a pipeline employee who is required by his or her
employer (a pipeline operator) to hold a CDL as a condition of
employment, and who is required to be available to drive a CMV as part
of his or her job, is subject to the FHWA rules, including random
testing. This requirement applies regardless of the amount of time that
the employee actually drives a CMV or performs other safety-sensitive
duties as defined in the FHWA regulations under 49 CFR part 382 (e.g.,
loading/unloading vehicles, waiting to be dispatched, performing
vehicle inspections). The timing of any random test, however, does
depend upon when the employee is performing that driving function. The
employee may be subject to random alcohol testing under the FHWA rules
at any time just before, during, or just after driving a CMV. If a
pipeline employee may be called upon to drive a CMV at any time during
the work week, then the employee is subject to random testing at any
time during the employee's scheduled work shift. If, however, the
employee is called upon to drive a CMV only two days a week (e.g.,
Monday and Friday), then the employee is only subject to random testing
on those two days.
In addition, 49 U.S.C. 31306 requires that a driver required to
obtain a CDL must be subject to pre-employment/pre-duty testing.
Therefore, a pipeline employee who is required to obtain a CDL as a
condition of employment, and who is required to be available to drive a
CMV, is subject to pre-employment/pre-duty testing under the FHWA
rules. Requirements for pre-employment/pre-duty testing under the FHWA
rules are contained in 49 CFR 382.301.
With respect to post-accident and reasonable suspicion testing, an
employee is subject to testing while performing either pipeline or
driving functions. If an employee is involved in accident while driving
a CMV, then the operator should look to the FHWA rules (49 CFR 390.5)
to determine whether the accident is one that requires testing.
Similarly, if an employee is involved in an accident while performing a
covered pipeline function, the definition of an accident in section
199.205 applies.
Conversely, a pipeline employee who is not required by his or her
employer (a pipeline operator) to hold a CDL as a condition of
employment and does not drive a CMV as part of his or her job, is not
subject to testing under the FHWA rules.
3. RSPA Should Clarify That Operators Are Only Responsible for
Preventing Employees From Driving Company Vehicles
The Petitioners state that the ``Background Material'' accompanying
the 49 CFR part 40 final regulations states that employees testing
positive for alcohol ``should not drive.'' (59 FR 7340, 7346).
Petitioners contend that enforcing a broad prohibition on driving
raises serious legal questions. The Petitioners request that DOT
clarify that the employer's responsibility extends only to limiting
employees from driving company vehicles or for company purposes, and
that employers should not be responsible for policing the actions of an
employee after he or she has tested positive.
RSPA Response. RSPA is granting the Petitioners' request to clarify
this issue. The preamble to the 49 CFR part 40 regulations states that
the DOT alcohol testing form includes a statement, to be signed by the
employee, that persons who test positive should not drive or perform
other safety-sensitive functions. (59 FR 7346). The requirement to sign
the statement applies to the employee, not to the employer. The
statement in the preamble that employers have a responsibility, as part
of their alcohol education for employees, to emphasize that employees
must cease performing safety-sensitive functions if they test positive
does not mean that employers must police the private conduct of
employees who test positive.
The employer's specific responsibility is set forth in 49 CFR
199.215 and 199.237, which provide that an operator may not permit a
covered employee who has an alcohol concentration of 0.02 or greater to
perform or continue to perform covered functions until certain
requirements are met. An operator may not permit such an employee, for
example, to drive a CMV or perform a pipeline safety function. The
rules do not require an operator to prohibit an employee from driving
his or her own vehicle after having tested positive. However, under 49
CFR 199.239, an operator has an obligation to promulgate a policy on
the misuse of alcohol, including providing educational materials to
employees concerning the effects of alcohol misuse on an individual's
health, work, and personal life. Such materials frequently include
information advising on the dangers of driving while under the
influence of alcohol. Therefore, no change to the rule is necessary.
4. RSPA Should Clarify That Operators Are Not Responsible for the
Storage of EBT Devices
The Petitioners state that the DOT regulations in 49 CFR 40.55(c)
require that employers store EBTs in a secure space. The Petitioners
contend that it will often be the case that EBTs will not be in the
control of the employer, but will be maintained by hospitals,
contractors, and consortiums. Where testing devices are in the
possession of others, the Petitioners contend, employers will have
limited ability to control maintenance and operation of the devices.
The Petitioners maintain that all that reasonably can be required of
employers is that they contractually require third parties to abide by
the regulations. The Petitioners contend that, as for emergency
personnel and hospitals, employers obviously cannot be required to
monitor their operations.
RSPA Response. Section 40.55(c) stipulates that when the employer
is not using the EBT at an alcohol testing site, the employer shall
store the EBT in a secure space. This provision plainly is directed to
those situations when the employer is conducting the testing, either
directly or through a contract with a third party provider. If the
employer is conducting the testing, then the employer must secure the
EBT when it is not in use. If the employer is conducting testing
through a contractor, then the contract must provide that the
contractor will secure the EBT when it is not in use. Therefore, no
change to the rule is necessary.
5. RSPA Should Clarify That Operators May Combine Drug and Alcohol
Training Requirements
The Petitioners state that the Common Preamble indicates that
employers may combine their alcohol and drug training programs for
supervisors, for a total time of two hours. The Petitioners contend
that much of the information pertaining to detecting alcohol and drug
abuse will overlap, and it is not necessary to require a two-hour
training session. The Petitioners urge DOT to clarify that employers
need only provide combined training on drugs and alcohol for one hour.
RSPA Response. RSPA is denying the Petitioners' request. The Common
Preamble clearly provides that ``[e]mployers are free to combine
supervisor training for alcohol misuse detection with the comparable
training for drug use detection currently required by the OA drug
testing rules for a total of two hours to minimize costs and
inconvenience.'' (59 FR 7334). The Petitioners did not provide any
justification for reducing the supervisory training to a total of one
hour for both drugs and alcohol, other than to suggest that ``much of
the information * * * will overlap.'' (Jt. Pet. at 11). Although some
of the symptoms of drug and alcohol use may be similar, the symptoms
vary widely depending on the type and quantity of the substance
ingested. Many commenters recommended that additional supervisory
training on alcohol misuse (more than one hour) be required, and many
employers voluntarily offer recurrent or follow-up training to ensure
that supervisors have sufficient awareness of the indicators of alcohol
and drug use. Therefore, RSPA is retaining the requirement that
operators must provide a minimum of one hour of supervisory training
for drug use and one hour for alcohol misuse, which may be combined
into a single two-hour training period. Accordingly, no change to the
rule is necessary.
6. RSPA Should Clarify Its Position on Follow-Up Tests for Alcohol and
Drugs
The Petitioners state that the RSPA regulations in 49 CFR
199.225(d)(1) require follow-up alcohol tests in certain situations,
but do not address whether it is appropriate for a substance abuse
professional (SAP) also to require follow-up drug tests, when an
individual also shows signs of drug abuse. The Petitioners point out
that the Common Preamble, however, indicates that the rules will permit
an employer to conduct follow-up drug tests, if the SAP suspects drug
involvement. The Petitioners request that RSPA clarify that the
authority in the Common Preamble also extends to RSPA operators.
RSPA Response. RSPA is granting the Petitioners' request to clarify
this issue. Section 199.225(d)(1) provides that follow-up testing shall
be conducted in accordance with the provisions of
Sec. 199.243(b)(2)(ii). This reference is in error, and should be to
Sec. 199.243(c)(2)(ii), which provides that follow-up testing may
include testing for drugs, as directed by the SAP, to be performed in
accordance with 49 CFR part 40. RSPA is amending Sec. 199.225(d)(1) to
include the correct reference.
7. RSPA Should Clarify That Companies Are Not Responsible for Ensuring
Contractor Compliance With the Final Rule
The Petitioners contend that operators should not be responsible
for ensuring that contractors comply with the alcohol misuse program.
(Jt. Pet. at 11). The Petitioners contend that the monitoring
responsibility for contractor employees is highly impracticable and
difficult to achieve, particularly for small operators who rely on many
contractors, and may enter into contracts at short notice. The
Petitioners assert that there are practical problems in monitoring
transient workers, or in knowing which particular contract employees
will perform certain jobs. The Petitioners state that contractors ``are
used predominantly for construction, and almost never for operations.
Therefore, it is difficult to envision circumstances where post-
accident testing would be required for contractors.'' (Jt. Pet. at 12).
The Petitioners assert that ``for cause'' testing is also unnecessary,
because currently when an operator suspects a contractor employee is
alcohol-impaired, the contractor is ordered to remove the employee. The
Petitioners therefore contend that requiring operators to oversee or
manage a detailed alcohol compliance program for contractors is an
inefficient use of resources and an unnecessary burden, given that the
only testing that is likely to be carried out is ``for cause'' testing,
which is already handled adequately by operator/contractor agreements.
RSPA Response. RSPA is denying the Petitioners' request. RSPA's
longstanding and oft-stated position on this issue is that a pipeline
operator who chooses to perform safety-sensitive functions by using
contractors is held responsible for compliance with the Pipeline Safety
Regulations just as if the operator's own employees were performing the
work (54 FR 51747, December 18, 1989; 57 FR 59714, December 15, 1992).
The proper performance of a safety-sensitive function should not be
dependent on the individual's direct or indirect employment
relationship with the operator. Furthermore, the alcohol rules are
limited to persons performing covered functions, i.e., operation,
maintenance, and emergency response functions that are regulated by 49
CFR parts 192, 193, or 195 and performed on a pipeline or liquefied
natural gas facility. Covered functions do not include clerical, truck
driving, accounting, or other functions not covered by parts 192, 193,
or 195 (49 CFR 199.205).
The Petitioners themselves note that contractors are used
predominantly for construction (which generally is not a covered
function), are almost never used for operations, and, therefore, post-
accident testing for contractors would be rare. By this same reasoning,
contractors would only rarely be subject to reasonable suspicion
testing, i.e., when performing covered functions. If the Petitioners
are correct that few contractor employees will be performing covered
functions, then there should be a very minimal burden on operators. If
a contractor does not perform covered functions, then no operator
monitoring will be required.
In those instances where a contractor employee is performing a
covered function, RSPA is not persuaded that the employee should be
removed, without a test, because the operator suspects that the
employee is alcohol-impaired. If the operator has the opportunity to
observe the employee and determines that reasonable suspicion exists
that the employee is impaired, the employee must be tested.
Although an operator may choose, under Sec. 199.245, to allow a
contractor to carry out the required alcohol testing, training, and
education, the operator may find that it is simpler and more cost-
effective to assume that responsibility directly. Unlike random and
pre-employment testing, which involve large numbers of tests, post-
accident and reasonable suspicion testing should result in relatively
few tests. RSPA's experience with drug testing is that fewer than 3% of
the total tests conducted have been in post-accident and reasonable
suspicion situations. Regardless of whether it employs contractors, an
operator must have an alcohol misuse plan, provide educational
materials to its employees, train supervisors, and be prepared to
conduct tests. An operator could make copies of its educational
materials available to contractor employees, use trained supervisors to
observe contractor employees who are performing safety-sensitive
functions, and test contractor employees in those few instances when
testing is required. The arguments advanced by the Petitioners do not
demonstrate that the requirement to ensure contractor compliance with
the alcohol rule is unduly burdensome, impractical, or unnecessary.
Therefore, RSPA is retaining the requirement that the operator is
responsible for ensuring that employees who perform covered functions
for the operator, whether directly or by contract, are subject to the
requirements of the RSPA rule. Accordingly, no change to the rule is
necessary.
8. RSPA Should Clarify That Operators May Continue To Remove an
Employee Without Conducting a Test
The Petitioners state that many operators currently remove a
safety-sensitive employee from the job, without performing an alcohol
test, who is suspected of being alcohol-impaired. The Petitioners urge
RSPA to amend the final rule and allow employers to continue this
practice as long as the employee is made aware that the employer is
relying on company policy or a labor agreement and not the DOT
regulations, for the authority to remove the employee. The Petitioners
contend that if the employee is not allowed to return to the job unless
the other DOT requirements are met, such as evaluation by a SAP and
follow-up testing, then the operator should be permitted to remove an
employee without performing an alcohol test. The Petitioners suggested
that, for reporting purposes, operators should be required to notify
DOT of those employees who were not tested, but nonetheless removed
from the job, counseled in alcohol counseling programs, or dismissed.
RSPA Response. RSPA is denying the Petitioners' request. Section
199.225(b) requires each operator to require an employee to submit to
an alcohol test when the operator has reasonable suspicion to believe
that the employee has violated the prohibitions in the alcohol misuse
rule (e.g., has an alcohol concentration of 0.04 or greater, or has
used alcohol while performing covered functions). Section
199.225(b)(4)(ii) provides that, notwithstanding the absence of a
reasonable suspicion test, an operator shall not allow an employee to
perform covered functions while the employee appears to be under the
influence of or impaired by alcohol, until eight hours have passed or
the employee has been tested and has a result below 0.02. As discussed
in the Common Preamble (59 FR 7328), an employer who observes an
employee exhibiting the appearance of alcohol misuse, must test that
employee. However, ``when it is infeasible or impossible to conduct a
reasonable suspicion test in a timely manner (e.g., an EBT is
unavailable or broken), the employee is not permitted to perform
safety-sensitive functions for eight hours (or until obtaining a result
below 0.02 on a test if an EBT subsequently becomes available within
the 8-hour period).''
Section 199.225(b)(4)(iii) specifies that, except as provided in
Sec. 199.225(b)(4)(ii) (i.e., removal from covered functions for eight
hours or until a test result of below 0.02), ``no operator shall take
any action under [the RSPA alcohol misuse rule] against an 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 [rule] from taking any action otherwise
consistent with law.'' Under the RSPA rule, an operator is required to
test an employee when the operator has reason to believe the employee
is under the influence of or impaired by alcohol, or has violated any
other prohibition in the RSPA rule. The operator may not simply remove
the employee without conducting a test, unless conducting a test is
physically impossible because the employee is in a remote location or
the only available EBT is broken. In such a situation, where a test
cannot be conducted, the operator must ensure that the employee does
not perform any covered functions for eight hours or until a test
result of below 0.02 is obtained, whichever comes first. The operator
may take no other action against the employee under authority of the
RSPA rule. If the operator wishes to take additional action under its
own authority, it may do so, but it must conduct reasonable suspicion
testing in accordance with the RSPA rule.
As explained in the preamble to the RSPA final rule (59 FR 7427),
RSPA will monitor the data that we receive from post-accident and
reasonable suspicion tests to determine if further action is warranted.
Alcohol misuse is a problem in society generally, and it is reasonable
to expect that the pipeline industry is not immune from that problem.
Testing is vital to determine the extent of any problem, and the
resulting data is necessary to evaluate the alcohol misuse program and
develop more effective strategies for eliminating alcohol misuse.
Accordingly, no change to the rule is necessary.
Regulatory Analyses and Notices
Executive Order 12866 and DOT Regulatory Policies and Procedures
Although the February 15, 1994 alcohol misuse final rule was
significant, this document is not significant because it merely
clarifies the February 15 rule and makes no substantive changes to the
rule text. Therefore, this document was not reviewed by the Office of
Management and Budget under section 3(f) of Executive Order 12866, and
is not considered significant under the Regulatory Policies and
Procedures of the Department of Transportation (44 FR 11034). A
regulatory evaluation prepared for the February 15, 1994 final rule is
available for review in the docket.
Paperwork Reduction Act
This document does not contain any new information collection
requirements subject to the Paperwork Reduction Act.
Regulatory Flexibility Act
This document merely clarifies the final rule published on February
15, 1994. Therefore, I certify under Section 605 of the Regulatory
Flexibility Act (5 U.S.C.) that this action will not have a significant
economic impact on a substantial number of small entities.
Executive Order 12612
This action will not have substantial direct effects 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, RSPA has determined that this action does not
have sufficient federalism implications to warrant preparation of a
Federalism Assessment.
List of Subjects in 49 CFR Part 199
Alcohol testing, Drug testing, Pipeline safety, Recordkeeping and
reporting.
In consideration of the foregoing, RSPA is amending 49 CFR part 199
as follows:
PART 199--DRUG AND ALCOHOL TESTING
1. The authority citation for part 199 is revised to read as
follows:
Authority: 49 U.S.C. 60101 et seq.; 49 CFR 1.53.
2. Section 199.225 is amended by revising paragraph (d)(1) to read
as follows:
Sec. 199.225 Alcohol tests required.
* * * * *
(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).
* * * * *
Issued in Washington, DC on November 22, 1994.
D.K. Sharma,
Administrator, Research and Special Programs Administration.
[FR Doc. 94-29391 Filed 11-29-94; 12:03 pm]
BILLING CODE 4910-60-P
