2137_0579_Supporting Statement_08-13-07[2]

Department of Transportation

Pipeline and Hazardous Materials Safety Administration

Office of Pipeline Safety

SUPPORTING STATEMENT

Drug and Alcohol Testing of Pipeline Operators

OMB Control No.Justification: 2137-0579

Docket No. PHMSA-98-4957

INTRODUCTION

The Pipeline and Hazardous Materials Safety Administration (PHMSA) of the Department of Transportation (DOT) requests approval from the Office of Management and Budget (OMB) for an extension of the currently approved collection of for Drug and Alcohol Testing of Pipeline Operatorsgas pipeline information (OMB Control No. 2137-0579), which previously was approved on 07/31/2004. The col lection expires on 07/31/2007.

1. Circumstances that make collection of information necessary:

PHMSA requires each operator of a gas pipeline or a an liquefied natural gas (LNG) facility operators to conduct a drug and alcohol abuse monitoring program for their employees. Each operator is required to submit maintain the drug and alcohol test results. for their employees. These reports help PHMSA identify and evaluate potential pipeline operator safety problems associated with pipeline employees who may be under the influence of alcohol or drugs while working.

Part A. Justification

1. Circumstances that make collection of information necessary – Identify any legal or administrative requirements that necessitate the collection. Attach a copy of the appropriate section of each statute and regulation mandating or authorizing the collection of information:

Drug and alcohol abuse is a major societal problem. It and it is reasonable to assume the problem could exists in the pipeline and liquefied natural gas facility industry industries absent a vigorous monitoring and abatement program. as it does in society as a whole. The potentially harmful effect of drug and alcohol abuse on safe pipeline operations warrants comprehensive testing regulations for the pipeline industry. PHMSA continues to believe thatThe drug and alcohol tests are an integral component for keeping national pipeline operations safe. The drug and alcohol tests are an essential tool to monitor drug and alcohol usage in the pipeline pipeline and LNG industry. PHMSA believes that the continued yearly basis low test positive rate of less than PHMSA has found on a yearly basis that less than 1 percent of employees in the pipeline industry tested positive foris a direct result of this information collection. drug and alcohol usage ((71 FR See Federal Register Notice Volume 71, Number 249, page 78269) -78270, December 28, 2006).

The requirements for reporting incidents are in 49 CFR Part 199. The legislative authority for the requirements in 49 CFR Part 199, as identified in the attachment, is 49 U.S.C. 5103, 60102, 60104, 60108, 60117, and 60118. Additional authority for the requirements can be found at 49 CFR 1.53.

Drug and alcohol testing are in 49 CFR 199. A copy of this regulation is attached to this Supporting Statement.

This e information collection associated with this renewed regulation will promotes the US DOT’s Safety Strategic Goals. EPipeline employees who are subject to testing are less likely to choose to be under the influence of drugs and alcohol while they work. PHMSA can identify drug and alcohol trends among pipeline and LNG facility employees with the tests. In addition, PHMSA can take additional actions if tests reveal an increase in drug or alcohol usage. Decreased drug and alcohol use will improve human and environmental resources protection and increase pipeline safety.

2. How, by whom, and for what purpose is the information used:

2. How, by whom, and for what purpose is the information used – Indicate how, by whom, and for what purpose the information is to be used. Except for a new collection, indicate the actual use the agency has made of the information received from the current collection:

PHMSA's Office of Drug & Alcohol Policy & Investigations was created to deter and detect illegal drug use and alcohol misuse in the pipeline and LNG facility industry. This office develops and implements drug and alcohol regulations, provides training and outreach, and verifies compliance of a pipeline and LNG operator's program with DOT/PHMSA drug and alcohol regulations.

49 CFR part 199 (PHMSA drug and alcohol testing regulation) and 49 CFR part 40 (DOT drug and alcohol testing regulation) require operators to conduct drug and alcohol testing of covered employees who perform operation, maintenance, or emergency-response functions regulated by 49 CFR part 192, 193, or 195.

Covered functions performed on master meter systems, as defined in section 191.3, and pipeline systems that transport only petroleum gas or petroleum gas/air mixtures are excluded from testing conducted under PHMSA and DOT drug and alcohol regulations.

Management Information System (MIS) report forms are used to collect pertinent drug and alcohol data from pipeline operators. The regulation mandates random drug testing for 25 percent of pipeline operator employees.

In accordance with 49 CFR§199.119 and 49 CFR§199.229, pipeline operators subject to 49 CFR part 199 regulations with more then 50 covered employees are required to submit an MIS report annually. Small operators (50 or fewer covered employees) subject to 49 CFR part 199 are required to submit an MIS report only upon PHMSA's written request. Forms can be submitted electronically or by mail or fax.

3. Extent of automated information collection:

3. Extent of automated information collection – Describe whether, and to what extent, the collection of information involves the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g. permitting electronic submission of responses, and the basis for the decision for adopting this means of collection. Also describe any consideration of using information technology to reduce burden:

Pipeline operators are encouraged to file the drug and alcohol tests on-line. 55 percent of pipeline operators make electronic submissions. PHMSA expects tThe proportion of electronic versus paper filings is expected towill continue to increase.

4. Efforts to identify duplication:

4. Efforts to identify duplication – Describe efforts to identify duplication. Show specifically why any similar information already available cannot be used or modified for use for the purposes described in item 2 above:

PHMSA is the only federal agency that collects this information related to pipeline and LNG facility operator employee drug and alcohol usage. No similar information on pipeline operator drug and alcohol usage is requested by the government or industry.

5. Methods used to minimize burden on small businesses or other small entities:

5. Efforts to minimize the burden on small businesses – If the collection of information impacts small businesses or other small entities (Item 5 of OMB Form 83-1), describe any methods used to minimize burden:

PHMSA expects the majority of the operators impacted by this information collection will not be categorized as small business impacted operators to be large.¹ These large business operators must submit drug reports on an annual basis. S Small business operators, those with less than 50 employees, who are subject to the drug and alcohol testing requirements are partially exempted. from the regulatory requirements. They must conduct drug testing, but are not required to submit the test results unless PHMSA directs them to do so. Operators of master meter systems, which tend to be the smallest business operators, are exempt from the drug and alcohol testing program. Although the Ddrug testing may impose a disproportionate burden on small operators, however the benefits from drug testing result knowledge and potential employee drug abuse deterrence outweighs any costs that this regulation imposes. Also, master meter systems, which tend to be the smallest operators, are exempt from the drug and alcohol testing program. Large operators must submit drug reports on an annual basis.

6. Consequences to Federal program or policy activities if collection were conducted less frequently.

6. Impact of less frequent collection of information – Describe the consequence to Federal program or policy activities if the collection is not conducted or is conducted less frequently, as well as any technical or legal obstacles to reducing burden:

PHMSA would not be able to assess the rate of drug and alcohol abuse among pipeline and LNG facility operator employees. . Potential problems would go unheeded for a longer time, posing a safety risk to the public.

7. Special circumstances – Describe any special 7. Special circumstances affecting conduct of information collection activitycircumstances that would cause an information collection to be conducted in a manner:

• Requiring respondents to report information to the agency more often than quarterly;

• Requiring respondents to prepare a written response to a collection of information in fewer than 30 days after receipt of it;

• Requiring respondents to submit more than an original and two copies of any documents;

• Requiring respondents to retain records, other than health, medical, government contract, grant-in-aid, or tax records for more than three years;

• In connection with a statistical survey, that is not designed to produce valid and reliable results that can be generalized to the universe of study;

• Requiring the use of a statistical data classification that has not been reviewed and approved by OMB;

• That includes a pledge of confidentiality that is not supported by authority established in statute or regulation, that is not supported buy disclosure and data security policies that are consistent with the pledge, or which unnecessarily impedes sharing of data with other agencies for compatible confidential use; or

• Requiring respondents to submit proprietary trade secret, or other confidential information unless the agency can demonstrate that it has instituted procedures to protect the information’s confidentiality to the extent permitted by law.

The information collection contains no special circumstances described in the above list.

8. Efforts to consult with persons outside the agency to obtain their views:

8. Compliance with 5 CFR 1320.8 – Provide an electronic copy and identify the date, volume number and page number of the publication in the Federal Register of the agency’s notice (For a 60-day and a 30-day Notice), required by 5 CFR 1320.8(d), soliciting comments on the information collection prior to submission to OMB:

The 60-day Federal Register (FR) notice on this information collection was published on 06/08/2007 (72 FR volume xx, number xx – pages 31896). xxxx-xxxx.

PHMSA did not receive received the following comments. from the 60-day notice: __________________

The 30-day Federal Register notice was published on xx/xx/xxxx (date), 08/13/2007 (72 FR 45301). FR volume xx, number xx – pages xxxxx-xxxxx.

PHMSA received the following comments from the 30-day notice: __________________

9. Explanation of decision to provide any payment or gift to respondents:

Not applicable.

9. Payments or gifts to respondents – Explain any decision to provide a payment or gift to respondents, other than enumeration of contractors or grantees:

Not applicable.

10. Assurance of confidentiality provided to respondents:

Not applicable.

10. Assurance of confidentiality – Describe any assurance of confidentiality provided to respondents and the basis for the assurance in statute, regulation, or agency policy:

Not applicable.

11. Justification for collection of sensitive information:

Not applicable.

12. Estimate of burden hours for information requested:

Annual number of responses 2,419

Annual time burden 2,963

11. Justification for collection of sensitive information – Provide additional justification for any questions of a sensitive nature, such as sexual behavior and attitudes, religious beliefs, and other matters that are commonly considered private. This justification should include the reasons why the agency considers the questions necessary, the specific uses to be made of the information, the explanation to be given to persons form whom the information is requested, and any steps to be taken to obtain their consent:

Not applicable.

12. Estimate of burden hours for information requested – Provide estimates of the hour burden of the collection of information. The statement should:

Indicate the number of respondents, frequency of responses, calculation for the individual burdens and for the total annual hour burden, and an explanation of how the burden was estimated. Unless directed to do so, agencies should not conduct special surveys to obtain information on which to base hour burden estimates. Consultation with a sample (fewer than 10) respondents is expected to vary widely because of differences in activity, size, or complexity, show the range of estimated hour burden, and explain the reasons for the variance. Generally, estimates should not include burden hour for customary and usual business practices

If this request for approval covers more than one form, provide separate burden hour estimates for each form and aggregate the burden hours in items 13 of OMB Form 83-I.

Provide estimates of annualized cost to respondents for the hourly burdens for collections of information, identifying and using appropriate wage rate categories. This cost contracting out or paying outside parties for information collection activities should not be included here. Instead, this cost should be included in item 14.

The annual burden hours and associated cost estimations are based on calculations from the expiring regulation. According to this original estimate, there are 2,419 operators (775 transmission operators, 225 liquid pipeline operators, 706 small distribution operators, and 673 medium and large distribution operators). Small operators do not have to send drug and alcohol reports annually and therefore are excluded from the reporting burden estimate.

The following table provides the burden hours divided by activity:

Activity	# operators	Time per operator	Subtotal burden hours
New operators program development	10	2 hours	20
New supervisory training	750	3.8576 minutes	48.22 hours
New employee training documentation	14,000	3.8571 minutes	900 hours
Reasonable suspicion testing and documentation	238	3.8571 minutes	15.3 hours
Post accident documentation	1236	3.8576 minutes	79.45 hours
MIS EZ drug form preparation	150	30 minutes	75 hours
MIS EZ alcohol form preparation	150	30 minutes	75 hours
MIS long form drug testing	700	2.5 hours	1750 hours
TOTALS			2,963 hours

The total annual information collection burden hours associated with this renewal are 2,963 hours.

13. Estimate of total annual costs to respondents:

13. Estimate of total annual costs to respondents – Provide an estimate of the total annual cost burden to respondents or record-keepers resulting from the collection of information. (Do not include the costs of any hour burden in items 12 and 14):

• Include a breakdown for total capital/start-up costs and operation/maintenance. The cost estimates should be split into two components: (a) A total capital and start-up cost component (annualized over its expected useful life); and (b) a total operation and maintenance and purchase of services component. The estimates should take into account costs associated with generating, maintaining, and disclosing or providing the information. Include descriptions of methods used to estimate major costs factors including system and technology acquisition, expected useful life of capital equipment, the discount rates(s), and the time period over which cost will be incurred. Capital and start-up costs include, among other items, preparations for collecting information such as purchasing computers and software; monitoring, sampling, drilling and testing equipment; and record storage facilities.

• If cost estimates are expected to vary widely, agencies should present ranges of cost burdens and explain the reasons for the variance. The cost of purchasing or contracting out information collection services should be a part of this cost burden estimate. In developing cost burden estimates, agencies may consult with a sample of respondents (fewer than 10), utilize the 60-day pre-OMB submission public comment process and use existing economic or regulatory impact analysis associated with the rulemaking containing the information collection, as appropriate.

• Generally, estimates should not include purchases of equipment or services, or portions thereof, made (1) prior to October 1, 1995, (2) to achieve regulatory compliance with the requirements not associated with the information collection, (3) for reasons other than to provide information or keep records for the government, or (4) as part of customary and usual business or private practices.

Some of the activities will necessitate senior engineers and other activities will need mid-level engineers to complete the task. Senior engineers have a fully loaded cost of $64.75 per hour.² Mid-level engineers are assumed to have a fully loaded cost of $50.04 per hour.³

Activity	Burden Hours		Associated cost
New operators program development	20	x $64.75	= $1,295*
New supervisory training	48.22 hours	x $64.75	= $3,122*
New employee training documentation	900 hours	x $50.04	= $45,036 ө
Reasonable suspicion testing and documentation	15.3 hours	x $50.04	= $3,641 ө
Post accident documentation	79.45 hours	x $64.75	= $5,144*
MIS EZ drug form preparation	75 hours	x $50.04	= $3,753 ө
MIS EZ alcohol form preparation	75 hours	x $50.04	= $3,753 ө
MIS long form drug testing	1750 hours	x $50.04	= $87,570 ө
TOTAL COST			= $153,314

The aggregate cost of this regulation over three years is estimated to be $459,942 (=$153,314 + $153,314 + $153,314).

Presumably, operators have already made all necessary capital investments associated with the expiring regulation, and therefore will require no additional capital investments.

The present value of the aggregate costs has been calculated using 7 percent and 3 percent discount rates. The present value of the estimated annual cost over a period of 3 years (the time span for the renewed regulation) using a 7 percent discount rate is $402,344. The present value of the estimated annual cost over a period of 3 years using a 3 percent discount rate will be $433,666. . Calculations are limited to a three year time period, which is the time duration of the renewed information collection.

14. Estimate of cost to the Federal government:

14. Estimate of cost to the Federal government – Provide estimates of annualized cost to the Federal government. Also, provide a description of the method used to estimate costs, which should include quantification of hours, operational expenses such as equipment, overhead, printing, and support staff, and any other expense that would not have been incurred without this collection of information. Agencies also may aggregate cost estimates from items 12, 13, and 14 in a single table:

PHMSA already reviews the drug and alcohol test results. No additional costs are expected for the Federal government

15. Explanation of program changes or adjustments:

15. Explanation of program changes or adjustments – Explain the reasons for any program changes or adjustments reported in items 13 or 14 of the OMB Form 83-I:

Not applicable.

16. Plans for tabulation, statistical analysis and publication:

16. Publication of results of data collection – For collections of information whose results will published, outline plans for tabulation, and publication. Address any complex analytical techniques that will be used. Provide the time schedule for the entire project, including beginning and ending dates of the collection of information, completion of report, publication dates, and other actions:

The results of the pipeline and LNG facility operator drug and alcohol test reports will be summarized and posted on PHMSA’s website.

17. Display of expiration date of OMB Approval:

17. Approval for not explaining the expiration date for OMB approval – If seeking approval to not display the expiration date for OMB approval of the information collection, explain the reasons that display would be inappropriate:

PHMSA will display the expiration date.

18. Exceptions to certification statement:

18. Exceptions to certification statement – Explain each exception to the certification statement identified in item 19, “Certification for Paperwork Reduction Act Submissions,” of OMB Form 83-I:

There are no exceptions to the certification statement.

Attachments:

1. Form PHMSA MIS EZ and instructions (Form is part of ICR package – See ROCIS/ICTS document attachments or go to: http://www.phmsa.dot.gov/drug/mis.html )

2. Authorizing Regulation: 49 CFR 199

ATTACHMENT :

Electronic Code of Federal Regulations (e-CFR)

e-CFR Data is current as of April 19, 2007

Title 49: Transportation

Browse Previous

PART 199—DRUG AND ALCOHOL TESTING

Section Contents

Subpart A—General

§ 199.1   Scope.
§ 199.2   Applicability.
§ 199.3   Definitions.
§ 199.5   DOT procedures.
§ 199.7   Stand-down waivers.
§ 199.9   Preemption of State and local laws.

Subpart B—Drug Testing

§ 199.100   Purpose.
§ 199.101   Anti-drug plan.
§ 199.103   Use of persons who fail or refuse a drug test.
§ 199.105   Drug tests required.
§ 199.107   Drug testing laboratory.
§ 199.109   Review of drug testing results.
§ 199.111   Retention of samples and additional testing.
§ 199.113   Employee assistance program.
§ 199.115   Contractor employees.
§ 199.117   Recordkeeping.
§ 199.119   Reporting of anti-drug testing results.

Subpart C—Alcohol Misuse Prevention Program

§ 199.200   Purpose.
§ 199.201   [Reserved]
§ 199.202   Alcohol misuse plan.
§§ 199.203-199.205   [Reserved]
§ 199.209   Other requirements imposed by operators.
§ 199.211   Requirement for notice.
§ 199.213   [Reserved]
§ 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—General

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§ 199.1   Scope.

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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.

[Amdt. 199–19, 66 FR 47117, Sept. 11, 2001]

§ 199.2   Applicability.

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(a) This part applies to pipeline operators only with respect to 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).

(b) This part does not apply to any person for whom compliance with this part would violate the domestic laws or policies of another country.

(c) This part does not apply to covered functions performed on—

(1) Master meter systems, as defined in §191.3 of this chapter; or

(2) Pipeline systems that transport only petroleum gas or petroleum gas/air mixtures.

[Amdt. 199–19, 66 FR 47117, Sept. 11, 2001]

§ 199.3   Definitions.

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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, Pipeline and Hazardous Materials Safety Administration or his or her delegate.

Covered employee, employee, or individual to be tested means a person who performs a covered function, including persons employed by operators, contractors engaged by 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 on an 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.

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.

Performs a covered function includes actually performing, ready to perform, or immediately available to perform a covered function.

Positive rate for random drug testing means the number of verified positive results for random drug tests conducted under this part plus the number of refusals of random drug tests required by this part, divided by the total number of random drug tests results ( i.e., positives, negatives, and refusals) under this part.

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.

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; Amdt. 199–19, 66 FR 47117, Sept. 11, 2001; 68 FR 11750, Mar. 12, 2003; 68 FR 75465, Dec. 31, 2003; 70 FR 11140, Mar. 8, 2005]

§ 199.5   DOT procedures.

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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.

[Amdt. 199–19, 66 FR 47118, Sept. 11, 2001]

§ 199.7   Stand-down waivers.

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(a) Each operator who seeks a waiver under §40.21 of this title from the stand-down restriction must submit an application for waiver in duplicate to the Associate Administrator for Pipeline Safety, Pipeline and Hazardous Materials Safety Administration, Department of Transportation, Washington, DC 20590.

(b) Each application must—

(1) Identify §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 §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.

[Amdt. 199–19, 66 FR 47118, Sept. 11, 2001, as amended at 70 FR 11140, Mar. 8, 2005]

§ 199.9   Preemption of State and local laws.

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(a) Except as provided in paragraph (b) of this section, this part 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 part is not possible;

(2) Compliance with the State or local requirement is an obstacle to the accomplishment and execution of any requirement in this part; or

(3) The State or local requirement is a pipeline safety standard applicable to interstate pipeline facilities.

(b) This part shall not be construed to preempt provisions of State 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.

[Amdt. 199–9, 59 FR 7430, Feb. 15, 1994. Redesignated and amended by Amdt. 199–19, 66 FR 47119, Sept. 11, 2001]

Subpart B—Drug Testing

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§ 199.100   Purpose.

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The purpose of this subpart is to establish programs designed to help prevent accidents and injuries resulting from the use of prohibited drugs by employees who perform covered functions for operators of certain pipeline facilities subject to part 192, 193, or 195 of this chapter.

[Amdt. 199–19, 66 FR 47118, Sept. 11, 2001]

§ 199.101   Anti-drug plan.

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(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 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. Redesignated by Amdt. 199–19, 66 FR 47118, Sept. 11, 2001]

§ 199.103   Use of persons who fail or refuse a drug test.

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(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 DOT Procedures; 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 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

(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. Redesignated and amended by Amdt. 199–19, 66 FR 47118, Sept. 11, 2001]

§ 199.105   Drug tests required.

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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. 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 theFederal Registerthe 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 §199.119 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 §199.119 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-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 complied with applicable provisions of DOT Procedures concerning substance abuse professionals and the return-to-duty process.

(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.

[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. Redesignated and amended by Amdt. 199–19, 66 FR 47118, Sept. 11, 2001]

§ 199.107   Drug testing laboratory.

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(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.

[53 FR 47096, Nov. 21, 1988. Redesignated by Amdt. 199–19, 66 FR 47118, Sept. 11, 2001]

§ 199.109   Review of drug testing results.

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(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. Each MRO must be a licensed physician who has the qualifications required by DOT Procedures.

(c) MRO duties. The MRO must perform functions for the operator as required by DOT Procedures.

(d) MRO reports. The MRO must report all drug test results to the operator in accordance with DOT Procedures.

(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.

[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. Redesignated and amended by Amdt. 199–19, 66 FR 47118, Sept. 11, 2001]

§ 199.111   Retention of samples and additional testing.

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(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, and if timely additional testing is requested by the employee according to DOT Procedures, the split specimen must be tested. The employee may specify testing 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 additional test is negative.

(c) If the employee specifies testing 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. Redesignated and amended by Amdt. 199–19, 66 FR 47118, Sept. 11, 2001]

§ 199.113   Employee assistance program.

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(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.

[53 FR 47096, Nov. 21, 1988. Redesignated by Amdt. 199–19, 66 FR 47118, Sept. 11, 2001]

§ 199.115   Contractor employees.

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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.

[53 FR 47096, Nov. 21, 1988. Redesignated by Amdt. 199–19, 66 FR 47118, Sept. 11, 2001]

§ 199.117   Recordkeeping.

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(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 that indicate a verified positive result, records that demonstrate compliance with the recommendations of a substance abuse professional, and MIS annual report data shall be maintained for a minimum of five years.

(3) Records of employee drug test results that show employees passed a drug test must be kept for at least 1 year.

(4) 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 must be released upon the written consent of the individual and as provided by DOT Procedures. 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. Redesignated and amended by Amdt. 199–19, 66 FR 47119, Sept. 11, 2001; 68 FR 75465, Dec. 31, 2003]

§ 199.119   Reporting of anti-drug testing results.

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(a) Each large operator (having more than 50 covered employees) shall submit an annual MIS report to PHMSA of its anti-drug testing using the Management Information System (MIS) form and instructions as required by 49 CFR part 40 (at §40.25 and appendix H to Part 40), 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 PHMSA.

(b) Each report required under this section shall be submitted to the Office of Pipeline Safety, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, Room 7128, 400 Seventh Street, SW, Washington, DC 20590.

(c) To calculate the total number of covered employees eligible for random testing throughout the year, as an operator, you must add the total number of covered employees eligible for testing during each random testing period for the year and divide that total by the number of random testing periods. Covered employees, and only covered employees, are to be in an employer's random testing pool, and all covered employees must be in the random pool. If you are an employer conducting random testing more often than once per month ( e.g., you select daily, weekly, bi-weekly), you do not need to compute this total number of covered employees rate more than on a once per month basis.

(d) As an employer, you may use a service agent ( e.g., C/TPA) to perform random selections for you; and your covered employees may be part of a larger random testing pool of covered employees. However, you must ensure that the service agent you use is testing at the appropriate percentage established for your industry and that only covered employees are in the random testing pool.

(e) Each operator that has a covered employee who performs multi-DOT agency functions ( e.g., an employee performs pipeline maintenance duties and drives a commercial motor vehicle), count the employee only on the MIS report for the DOT agency under which he or she is randomly tested. Normally, this will be the DOT agency under which the employee performs more than 50% of his or her duties. Operators may have to explain the testing data for these employees in the event of a DOT agency inspection or audit.

(f) A service agent ( e.g., Consortia/Third Party Administrator as defined in 49 CFR part 40) may prepare the MIS report on behalf of an operator. However, each report shall be certified by the operator's anti-drug manager or designated representative for accuracy and completeness.

[68 FR 75465, Dec. 31, 2003, as amended by Amdt. 199–20, 69 FR 32898, June 14, 2004; 70 FR 11140, Mar. 8, 2005]

Subpart C—Alcohol Misuse Prevention Program

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Source:   Amdt. 199–9, 59 FR 7430, Feb. 15, 1994, unless otherwise noted. Redesignated by Amdt. 199–19, 66 FR 47118, Sept. 11, 2001.

§ 199.200   Purpose.

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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.

§ 199.201   [Reserved]

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§ 199.202   Alcohol misuse plan.

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Each operator must maintain and follow a written alcohol misuse plan that conforms to the requirements of this part and DOT Procedures concerning alcohol testing programs. 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.

[Amdt. 199–9, 59 FR 7430, Feb. 15, 1994, as amended by Amdt. 199–19, 66 FR 47119, Sept. 11, 2001]

§§ 199.203-199.205   [Reserved]

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§ 199.209   Other requirements imposed by operators.

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(a) 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.

(b) Operators may, but are not required to, conduct pre-employment alcohol testing under this subpart. Each operator that conducts pre-employment alcohol testing must—

(1) 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) 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) 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) Conduct all pre-employment alcohol tests using the alcohol testing procedures in DOT Procedures; and

(5) Not allow any covered employee to begin performing covered functions unless the result of the employee's test indicates an alcohol concentration of less than 0.04.

[Amdt. 199–9, 59 FR 7430, Feb. 15, 1994, as amended by Amdt. 199–19, 66 FR 47119, Sept. 11, 2001]

§ 199.211   Requirement for notice.

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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.

§ 199.213   [Reserved]

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§ 199.215   Alcohol concentration.

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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.

§ 199.217   On-duty use.

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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.

§ 199.219   Pre-duty use.

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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.

§ 199.221   Use following an accident.

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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 §199.225(a), or the operator has determined that the employee's performance could not have contributed to the accident.

§ 199.223   Refusal to submit to a required alcohol test.

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Each operator shall require a covered employee to submit to a post-accident alcohol test required under §199.225(a), a reasonable suspicion alcohol test required under §199.225(b), or a follow-up alcohol test required under §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.

§ 199.225   Alcohol tests required.

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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) [Reserved]

(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.

(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 PHMSA upon request of the Administrator.

(ii) [Reserved]

(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 §§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 §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 §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 §199.237, if an operator chooses to permit the employee to perform a covered function within 8 hours following the 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; Amdt. 199–19, 66 FR 47119, Sept. 11, 2001; 70 FR 11140, Mar. 8, 2005]

§ 199.227   Retention of records.

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(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 §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.

§ 199.229   Reporting of alcohol testing results.

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(a) Each large operator (having more than 50 covered employees) shall submit an annual MIS report to PHMSA of its alcohol testing results using the Management Information System (MIS) form and instructions as required by 49 CFR part 40 (at §40.25 and appendix H to part 40), not later than March 15 of each year for the previous calendar year (January 1 through December 31). The Administrator may 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 PHMSA.

(b) Each operator that has a covered employee who performs multi-DOT agency functions ( e.g., an employee performs pipeline maintenance duties and drives a commercial motor vehicle), count the employee only on the MIS report for the DOT agency under which he or she is tested. Normally, this will be the DOT agency under which the employee performs more than 50% of his or her duties. Operators may have to explain the testing data for these employees in the event of a DOT agency inspection or audit.

(c) Each report required under this section shall be submitted to the Office of Pipeline Safety, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, Room 7128, 400 Seventh Street, SW, Washington, DC 20590.

(d) A service agent ( e.g., Consortia/Third Party Administrator as defined in part 40) may prepare the MIS report on behalf of an operator. However, each report shall be certified by the operator's anti-drug manager or designated representative for accuracy and completeness.

[68 FR 75466, Dec. 31, 2003, as amended by Amdt. 199–20, 69 FR 32898, June 14, 2004; 70 FR 11140, Mar. 8, 2005]

§ 199.231   Access to facilities and records.

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(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 §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 an 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 without employee consent as provided by DOT Procedures concerning certain legal proceedings.

(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.

[Amdt. 199–9, 59 FR 7430, Feb. 15, 1994, as amended by Amdt. 199–19, 66 FR 47119, Sept. 11, 2001]

§ 199.233   Removal from covered function.

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Except as provided in §§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 §§199.215 through 199.223 or an alcohol misuse rule of another DOT agency.

§ 199.235   Required evaluation and testing.

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No operator shall permit a covered employee who has engaged in conduct prohibited by §§199.215 through 199.223 to perform covered functions unless the employee has met the requirements of §199.243.

§ 199.237   Other alcohol-related conduct.

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(a) No operator shall permit a covered employee tested under the provisions of §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 §199.225(e); or

(2) The start of the employee's next regularly scheduled duty period, but 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.

§ 199.239   Operator obligation to promulgate a policy on the misuse of alcohol.

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(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 §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.

§ 199.241   Training for supervisors.

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Each operator shall ensure that persons designated to determine whether reasonable suspicion exists to require a covered employee to undergo alcohol testing under §199.225(b) receive at least 60 minutes of training on the physical, behavioral, speech, and performance indicators of probable alcohol misuse.

§ 199.243   Referral, evaluation, and treatment.

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(a) Each covered employee who has engaged in conduct prohibited by §§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 §§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 §§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.

§ 199.245   Contractor employees.

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(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.

Part B. Collections of Information Employing Statistical Methods

Not applicable.

1 Small businesses as defined by the Regulatory Flexibility Act (P.L. 96-354)

2 Based on the 2004 U.S. Department of Labor’s Bureau of Labor Statistics National Industry-Specific Occupational Employment and Wage Estimates. The median hourly wage of an engineering manager (for NAICS 486000 – pipeline transportation) is estimated to be $47.96. With an estimated fringe benefit of 35%, the fully loaded cost of an engineering manager in the pipeline industry is $64.75 per hour.

3 ^? Based on the 2004 U.S. Department of Labor’s Bureau of Labor Statistics National Industry-Specific Occupational Employment and Wage Estimates. The median hourly wage of a general engineer(for NAICS 486000 – pipeline transportation) is estimated to be $32.53. With an estimated fringe benefit of 35%, the fully loaded cost of an engineering manager in the pipeline industry is $50.04 per hour.

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