05-8008. Pipeline Safety: Drug and Alcohol Testing

AGENCY:

Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT).

ACTION:

Notice of intent to issue an Advisory Bulletin; request for public comment.

SUMMARY:

This notice advises operators of gas, hazardous liquid and carbon dioxide pipelines and liquefied natural gas facilities that the Pipeline and Hazardous Materials Safety Administration (PHMSA), Office of Pipeline Safety (OPS), intends to issue an Advisory Bulletin to begin collecting annual drug and alcohol testing data for contractor employees performing covered functions in the pipeline industry. The collection of contractor testing data is necessary for the calculation of the minimum annual percent rate for random drug testing, which is based on the reported positive rate for the entire industry. No regulatory change is necessary because the current rule already requires operators to report testing data for covered employees to OPS. The Advisory Bulletin will end the deferment period addressed in the preamble to the current rule for reporting contractor data and suggest a method for reporting the data that minimizes the problems associated with duplication. This notice proposes a method for reporting contractor data, seeks public comment on the method, and encourages suggestions for alternative approaches for reporting contractor testing data.

DATES:

Comments must be received by June 6, 2005.

ADDRESSES:

You must identify docket number RSPA-04-19856. Comments may either be mailed to U.S. Department of Transportation, Dockets Facility, Plaza 401, 400 7th Street, SW., Washington, DC 20590 or submitted electronically at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT:

Sheila Wright, Program Analyst, PHMSA, OPS at [phone], or by e-mail, [e-mail].

SUPPLEMENTARY INFORMATION:

Background

Under 49 CFR Part 199, each operator having more than 50 covered employees must submit an annual Management Information System (MIS) report to OPS of its drug and alcohol testing results for covered employees by March 15th of each year for the prior calendar year. Operators with 50 or less covered employees may be required to submit annual MIS reports if notified by OPS in writing. A covered employee is a person employed by the operator, a contractor engaged by the operator, or a person employed by such a contractor, who performs operations, maintenance, or emergency-response functions regulated by 49 CFR parts 192, 193, or 195.

In the final rule, 58 FR 68258, Dec. 23, 1993, OPS concluded that submission of contractor testing data by operators could result in duplicative reporting and inaccurate data. OPS noted that inaccuracies could affect the positive rate for the entire industry, thereby affecting the minimum annual percent rate for random drug testing. Accordingly, OPS deferred collecting contractor testing data, but stated that operators must continue to maintain the records required by 49 CFR Part 199, and ensure their contractors maintain the same. OPS also stated that it would re-evaluate the collection of contractor testing data and develop a method of collecting to avoid the problem of duplication.

During subsequent meetings of the Technical Pipeline Safety Standards Committee and the Technical Hazardous Liquid Pipeline Safety Standards Committee, OPS discussed its intent to begin collecting contractor testing data. OPS pointed out that it plans to begin collecting this data in the 2006 reporting period, and begin any necessary enforcement in 2007. Comments at the meetings were supportive of the initiative to collect contractor data. Commenters suggested that it would be pragmatic for contractors to report their testing data directly to OPS. The transcript of the most recent public meeting is available in the docket (http://dms.dot.gov) under docket number RSPA-04-19856.

OPS does not directly regulate contractors with respect to drug and alcohol testing, but places the responsibility on operators to ensure all covered employees are tested and that the testing results are submitted annually to OPS. Accordingly, pipeline operators monitor contractor compliance with drug and alcohol testing requirements as required by 49 CFR part 199. Operators use a variety of methods to monitor covered contractor employees, such as testing of contract employees, requiring contractors to have their own testing programs, or working with contractors that belong to drug testing consortium groups.

Collecting contractor testing data is essential for analyzing OPS's approach to detecting and deterring use of controlled substances. The information is also necessary to calculate the minimum annual percent rate for random drug testing, which is based on the reported positive rate for the entire industry. Collecting this data will not require a regulatory change because 49 CFR part 199 requires operators to report testing data for all covered employees, which includes contractors. The preamble to the current rule merely deferred submission of the data until the development of a methodology. OPS intends to issue an Advisory Bulletin that will end the deferment period noted in the preamble to the final rule.

Proposed Method

Commenters to the original final rule and at the public meeting indicated that submission of contractor testing data should be done by contractors themselves, not by pipeline operators. Based on these suggestions, OPS proposes in lieu of operators submitting contractor data, the operators may opt to use contractors as their agents to report the data. If operators choose this method, OPS encourages them to consider adding language in their contractual agreements to that effect. To facilitate these submissions, OPS would create and assign unique identifiers for contractors to submit annual testing data on the DOT MIS data collection form by mail or by online submission.

Request for Comments

OPS encourages comments on this proposed method in addition to suggestions for alternative methods of collecting contractor testing data. Specifically, OPS invites comments on the validity of the method being proposed and ways to avoid duplication and enhance quality. Following the review of timely comments, OPS will issue an Advisory Bulletin notifying operators of the selected method to begin reporting contractor testing data in calendar year 2006.

Issued in Washington, DC, on April 15, 2005.

Theodore L. Willke,

Deputy Associate Administrator for Pipeline Safety.