Alcohol Misuse Prevention Program; Rule DEPARTMENT OF TRANSPORTATION

SUMMARY: This final rule sets forth regulations requiring operators of

gas, hazardous liquid and carbon dioxide pipelines and liquefied

natural gas (LNG) facilities subject to the pipeline safety regulations

to implement alcohol misuse prevention programs for employees who

perform safety-sensitive functions. This final rule is consistent with

the alcohol rules of other operating administrations (OAs) published

elsewhere in today's Federal Register, except that RSPA is not

requiring pre-employment or random testing. The final rule requires

only post-accident, reasonable suspicion, return-to-duty, and follow-up

testing. This rule requires operators to remove from safety-sensitive

functions employees who engage in prohibited alcohol conduct, and not

permit them to return to those functions until specific requirements

are met. Operators must provide covered employees with written

materials that specifically identify the employees covered by the rule,

explain the requirements of the rule, and establish the consequences of

engaging in prohibited conduct. Operators must maintain records

concerning their programs and report data regarding employee alcohol

misuse to RSPA annually. The rules are intended to ensure an alcohol-

free workplace, and increase the overall safety of pipeline operations.

EFFECTIVE DATE: This rule is effective March 17, 1994.

FOR FURTHER INFORMATION CONTACT: Mr. Richard L. Rippert, Office of

Pipeline Safety Compliance, RSPA, DOT, 400 Seventh Street, SW.,

Washington, DC 20590-0001 (202 366-6223); or the RSPA Dockets Unit,

(202) 366-4453, for copies of this final rule or other material in the

docket.

SUPPLEMENTARY INFORMATION:

Background

On December 15, 1992, RSPA published a notice of proposed

rulemaking (NPRM) (57 FR 59712) to require pipeline 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. The NPRM proposed to exempt from the alcohol

rules operators of ``master meter systems'' and ``liquefied petroleum

gas'' (LPG) operators.

The comment period on the NPRM closed on April 14, 1993, and all

comments received were considered, including the testimony of 16

individuals who presented statements at the three public hearings held

on February 26, 1993, in Washington, DC; on March 2, 1993, in Chicago,

Illinois; and on March 5, 1993, in San Francisco, California. RSPA

received written comments from 108 persons including 75 pipeline

operators, eight pipeline industry associations, seven individuals,

five labor unions, four state agencies, three contractors, two

consortiums, two vendors, one law firm and one Federal agency. All

written comments, as well as the hearing transcripts and any statements

or other materials submitted at the hearings, have been placed in the

docket.

OST Common Preamble

As part of the DOT-wide alcohol misuse prevention rulemaking effort

DOT issued a common preamble to all of the related NPRMs that were

published on December 15, 1993 (57 FR 59382, et seq.). The common

preamble precedes this document in today's Federal Register and should

be read first to ensure a complete understanding of today's substantive

final rule. This common preamble contains a thorough discussion of the

comments submitted to the DOT alcohol docket and responds to comments

submitted to the various DOT agency dockets that raised multimodal

aspects of the final rules or the Act.

Discussion of Comments

Authority for RSPA Regulation of Alcohol Misuse.

The majority of the commenters strongly objected to the mandatory

imposition of alcohol misuse regulations, as proposed for the pipeline

industry. They contended that: (1) Alcohol testing of pipeline

operators is not required under the provisions of the Omnibus

Transportation Employee Testing Act of 1991 (Omnibus Act); (2) the

pipeline industry has an excellent safety record; (3) RSPA lacks a

factual basis or statistical data that would support a finding of any

alcohol-related pipeline accidents; and (4) the proposed alcohol

regulations would violate the Fourth Amendment of the Constitution.

However, some commenters expressed support for inclusion of a limited

alcohol testing program consisting of post-accident and reasonable

suspicion testing elements and support for development of a ``pilot or

demonstration'' alcohol program to be conducted by RSPA and various

pipeline industry associations. The pilot program would be implemented

by operators to develop statistical data which would support the need

for an extensive alcohol testing program or data that would indicate

implementation of a limited alcohol misuse prevention program was more

feasible for the entire industry.

Most commenters opposed the proposed alcohol program, or suggested

modifications to tailor the program to the needs of the pipeline

industry. Several commenters noted that the pipeline industry is not

covered by the Omnibus Act. Commenters stated that there is no

indication that there is an alcohol problem in the pipeline industry,

and thus there is no justification for imposing Federal regulation.

Commenters also stated that pipelines pose different safety risks than

other forms of public transportation because they do not carry

passengers.

RSPA Response. RSPA is today issuing a final rule on alcohol

testing based on its own existing statutory authority to promote safety

and to ensure general application of DOT's alcohol misuse regulations

to all employees performing safety-sensitive functions in the

transportation industries. The two statutes under which RSPA

administers the pipeline safety program are the Natural Gas Pipeline

Safety Act of 1968, as amended (49 App. U.S.C. 1671 et seq.) and the

Hazardous Liquid Pipeline Safety Act of 1979, as amended (49 App.

U.S.C. 2001 et seq.). The broad safety authority in these statutes is

applicable to various aspects of pipeline facilities, including

``design, installation, inspection, emergency plans and procedures,

testing, construction, extension, operation, replacement, and

maintenance of pipeline facilities.'' 49 App. U.S.C. 1672 and 2002.

Under this authority, RSPA can promulgate regulations where those

regulations would enhance pipeline safety.

The lack of data cited by some commenters could be the result of a

lack of testing and industry alcohol prevention programs rather than

the absence of an alcohol problem in the pipeline industry. Alcohol

misuse is a problem in society generally, and it is reasonable to

expect that the pipeline industry is not immune to the problem of

alcohol misuse. As noted in the preamble to the NPRM, RSPA's drug rule

was upheld even though there was no evidence of a particularized drug

problem in the pipeline industry. International Brotherhood of

Electrical Workers v. Skinner, 913 F.2d 1454 (9th Cir. 1990). Pipeline

safety is very important, and operator error can contribute to

accidents and incidents involving release of hazardous materials.

Although pipelines do not carry people, they do transport very

dangerous materials that, if released, can pose a serious threat to

public safety, property, and the environment. Therefore, for safety

reasons, we have decided to issue this final rule. Although the

pipeline industry is not covered by the Omnibus Act, in order to

provide a margin of safety in the pipeline industry, this final rule

establishes a limited alcohol misuse prevention program. This program

includes education, training, prohibitions on certain alcohol-related

conduct, and post-accident, reasonable suspicion, return-to-duty, and

follow-up testing. To balance our safety concerns with the cost to

industry and the lack of evidence of a pipeline alcohol problem, we are

not requiring random or pre-employment testing. With the exception of

those two types of testing, this final rule is generally consistent

with the rules of the other OAs. Such other alterations as are

necessary to meet the special circumstances of the pipeline industry

have been incorporated into the final rule. We will monitor the data we

receive from post-accident and reasonable cause tests to determine if

further action is warranted. This final rule will ensure that pipeline

employees are subject to the same alcohol prohibitions, consequences,

and educational efforts that apply to other transportation workers.

Pipeline operators may conduct other types of alcohol testing if they

have independent authority to do so.

Constitutional issues and comments on issues common to all of the

OAs are addressed in detail in the common preamble to the OA alcohol

rules, published elsewhere in today's Federal Register.

Applicability and Scope. Several commenters, including the American

Gas Association, opposed application of the proposed rule to natural

gas transmission and distribution companies. Some commenters indicated

that the definition of ``safety-sensitive function'' and ``performing a

safety-sensitive function'' are too broad and unclear. Other commenters

stated that the definition of ``covered employee'' should include only

persons actually employed by an operator, and should not include

applicants for employment. Some operators indicated that RSPA should

clarify if the alcohol testing regulations are to be a free-standing

program separate and distinct from the drug testing program or whether

alcohol testing could be integrated with the existing drug testing

program. They also pointed out that having different alcohol

regulations for each of the OAs may create an administrative burden in

complying with the various final rules.

RSPA Response. The NPRM proposed to include essentially the same

classes of operators and covered functions as are subject to the anti-

drug rule. This rule is adopting as final the NPRM proposal that

operators of gas, hazardous liquid and carbon dioxide pipelines, and

LNG facilities, who are subject to 49 CFR part 192, 193, or 195,

implement alcohol misuse prevention programs for covered employees who

perform certain functions covered by the pipeline safety regulations.

Persons who perform regulated operation, maintenance, and emergency

response functions for operators of these pipelines and facilities

directly affect transportation safety. The final rule does not apply,

however, to operators of master meter systems or LPG operators. The

terms ``covered functions'' and ``safety-sensitive functions'' as used

here and in the common preamble are synonymous and refer to the

performance of an operation, maintenance, or emergency-response

function performed on a pipeline or an LNG facility. The term ``safety-

sensitive function'' is used in the Omnibus Transportation Employee

Testing Act to describe functions which employees perform.

Operators may combine their RSPA drug and alcohol programs. This

final rule is consistent with the other OA rules in order to minimize,

to the extent possible, any compliance burden for operators subject to

the rules of more than one OA. Because RSPA is not imposing pre-

employment testing, the definition of a ``covered employee'' does not

include an applicant for employment.

In the NPRM, RSPA solicited comment on five issues regarding

implementation of the proposed alcohol regulations. The questions and

comments are summarized below:

1. Are there covered functions the performance of which appears to

sufficiently implicate safety to warrant regulating alcohol-related

conduct and imposition of a testing requirement?

Several commenters indicated support for requiring only post-

accident and reasonable suspicion testing to be mandated by RSPA. Many

commenters indicated that pre-employment, random, and return-to-duty

were costly and unnecessary as proposed in the NPRM. The commenters

supported the current definition of ``employee'' in the drug testing

regulations, and stated that the definition should not be expanded.

RSPA agrees that the proposed definition of ``employee'' is adequate

and has not expanded it. As discussed above, the final rule does not

require either pre-employment or random testing.

2. Do pipeline operators have any data on the size of the

population that would be affected and the incidence of alcohol misuse

by this population?

Many operators stated they currently have company-mandated alcohol

testing policies in place. These provisions cover testing in post-

accident and reasonable suspicion situations. Some commenters indicated

zero incidence of alcohol misuse. During the development of the drug

testing regulations, many commenters suggested that RSPA include

alcohol testing as a tested substance in any required testing program.

They also pointed out that alcohol is probably the substance most

abused by the public. As discussed above, the lack of data in the

pipeline industry does not mean that there is not a problem with

alcohol misuse. Therefore, RSPA is requiring a limited alcohol misuse

program for the pipeline industry.

3. What additional costs would be incurred by inclusion of other

functions and what would be the offsetting benefits (e.g., in terms of

accident prevention, productivity, employee lost time)?

Many commenters agreed that increasing the scope of covered

employees, especially if random testing were implemented, would

substantially increase the costs associated with the regulations.

Administrative costs and employee lost time would be increased.

Furthermore, inconsistencies develop if alcohol regulations are

implemented and differences in scope of coverage between the drug and

alcohol testing programs were to occur. This would lead to drug and

alcohol testing programs covering different employees. Therefore, the

final alcohol rule applies to the same covered functions as the drug

rule.

4. Does the industry or public have any information on alcohol-

related accidents?

Many commenters argued that RSPA, DOT and the National

Transportation Safety Board (NTSB) have no statistical data to support

alcohol-related accidents. Some commenters believe that in the absence

of a comprehensive factual analysis, it is unreasonable to conclude

that all the proposed types of federally-mandated alcohol testing

should be required in the pipeline industry. As discussed above, RSPA

has carefully evaluated all facets of the alcohol testing regulations

including the required types of testing, categories of covered

employees, costs associated with implementation of a testing program

and the societal benefits. RSPA has determined that implementation of a

limited alcohol testing program is appropriate.

5. Are there other ways that RSPA could reduce the burden on small

operators?

Many commenters believe that a limited program such as post-

accident and reasonable suspicion testing could be effectively

implemented and would not adversely affect the numerous small gas

operators. They suggested that allowing the use of non-evidential

breath testing devices for screening would lower the overall costs of

the entire program. Several commenters suggested that operators with

less than 50 employees be excluded from the requirements of alcohol

testing. To reduce the burden on small entities, the final rule exempts

master meter operators and LPG operators. For all other operators, the

final rule eliminates the requirement for random and pre-employment

testing. In addition, RSPA has determined that small operators (50 or

fewer covered employees) should be excluded from the annual submission

of an alcohol MIS report to lessen the burden. RSPA will periodically

conduct a sampling of the small operators alcohol programs. Discussion

of alternatives for testing methods devices is contained in the common

preamble published elsewhere in today's Federal Register. Although DOT

is not permitting the use of non-evidential breath testing devices, the

final rule permits the use for screening of certain evidential devices

that are less costly and in the future will allow use of other devices

(for screening) that we approve as meeting DOT criteria.

Reasonable Suspicion Testing

Many commenters indicated they were frustrated by use of the phrase

``reasonable suspicion'' for alcohol testing when the term ``reasonable

cause'' is used in the drug testing regulations. Some commenters

supported the NPRM proposal that a supervisor who makes the

determination that reasonable suspicion exists to test a covered

employee shall not conduct the breath alcohol test on that employee, if

another supervisor is readily available. Other commenters indicated

that alcohol testing should not be conducted by supervisors, but should

be handled by the operator's contract collectors.

RSPA Response. RSPA considers the two terms to be synonymous. The

term ``reasonable suspicion'' is used in the Omnibus Act, and for

consistency with other OA alcohol rules, this final rule uses the term

``reasonable suspicion.'' RSPA will consider amending the drug rules to

adopt the same terminology. RSPA is concerned about the potential for

abuse and harassment of an employee, if the same supervisor who makes

the determination that reasonable suspicion exists also conducts the

breath test on the employee. Therefore, RSPA has revised this provision

to stipulate that the supervisor who makes the determination that

reasonable suspicion exists shall not conduct the breath alcohol test

on that employee.

Pre-Duty Use

The NPRM proposed to require each operator to prohibit a covered

employee from using alcohol within four hours prior to performing

safety-sensitive functions. The final rule adopts an amended provision

that prohibits using alcohol within four hours prior to performing

covered functions, or within the period of time after an employee has

been notified to report to duty to respond to an emergency. In the

pipeline industry, an operator commonly has only a limited number of

employees or a single employee qualified and available to respond in an

emergency situation. In such a case, an employee may be in an

unofficial ``on-call'' status. For example, an employee who finished

work for the day and returned home, had a beer at 6 p.m., and was

called at 8 p.m. to respond to an emergency, would be prohibited from

using alcohol from 8 p.m. until completion of the safety-sensitive

duties. This provision is intended to be used only for emergency

situations where an operator has no other recourse. Even in an

emergency situation, however, if an operator notifies an employee to

report, and the operator believes the employee cannot perform because

he or she is impaired by alcohol, the operator should not permit the

employee to perform safety-sensitive functions.

Alcohol Plans

The NPRM proposed to require operators to develop, maintain, and

follow a written alcohol misuse prevention plan. This type of plan

proved beneficial in assisting the industry in establishing anti-drug

testing programs and educating the industry about the requirements of

the drug rule. RSPA requested operators to provide specific comments on

whether a model drug and alcohol plan would be beneficial to employers

to standardize the requirements of the rules and assist in compliance

issues. A number of commenters were in favor of RSPA developing

guidance material for use by operators. Commenters stated that guidance

materials would aid the operators in the development of a written

alcohol misuse prevention plan addressing the requirements contained in

the RSPA final rule and part 40. Commenters, however, indicated that

such guidance material should not be used as an enforcement tool in

limiting an operator's plan to the same language contained in the

guidance materials.

RSPA Response. RSPA is developing guidance materials for operators,

to assist them in implementing alcohol misuse prevention plans, that we

plan to publish prior to implementation of the regulations. The

guidance materials could be used by operators and contractors that

provide services to operators subject to the regulations. RSPA does not

intend for the guidance materials to limit an operator's ability to

provide more detail for its employees. The guidance material for

alcohol would be added to the existing drug testing guidance material

for ease of reference.

Management Information System (MIS) Report

The NPRM proposed to require operators to report alcohol

statistical information, as an essential tool for monitoring compliance

with the rule. Many commenters were opposed to one or more of the

reporting elements proposed in the NPRM. Comments submitted by Exxon

and the Interstate Natural Gas Association of America addressed several

areas of the form that they contended would present an undue burden in

the collection and reporting of data. These comments included

objections to the data on employee categories; dual coverage and

reporting for employees covered by other DOT agencies; and the

requirement to submit annual reports no later than February 15th. Some

operators objected to the size and complexity of the report format and

the numerous detailed instructions required to complete the form. One

consortium indicated that costs of designing software and integrating

this type of informational software into the current drug management

programs would be immense. Another consortium, which represents

numerous small operators and municipalities, suggested that consortia

should be allowed to report on behalf of the companies they serve, thus

reducing the paperwork required. Many operators provided suggested

changes and modifications to reduce the recordkeeping and reporting

burden.

RSPA Response. This final rule requires the submission of annual

statistical data on each operator's alcohol misuse prevention program.

To reduce the burden on small operators (those with 50 or fewer covered

employees), those operators are not required to submit annual reports.

Small operators are required to keep records and submit to RSPA, upon

written request, reports on their alcohol programs. To reduce the

reporting burden on operators who have no verified positive test

results, RSPA has limited the information to be provided and has

developed a simplified ``EZ Form'' for submitting their reports. In

addition, operators are not required to report alcohol testing data for

contractors and their employees. Operators, however, are required to

keep records on contractor data and make the records available for

inspection. To simplify reporting, RSPA has eliminated the requirement

to report data on covered employees by function. RSPA has incorporated

these amendments into the final alcohol MIS report forms, which appear

as exhibits A and B immediately following the rule text in this Federal

Register. RSPA has determined that while the alcohol testing data

elements are properly a matter of regulation, the format in which the

data are reported should remain within the discretion of the

Administrator. This will enable RSPA to make any revisions to the

format that become necessary without undertaking additional rulemaking.

Because RSPA does not have regulatory authority over consortia, the

final rule requires operators to submit MIS reports. An operator may

make arrangements with a consortium to provide data to the operator in

whatever format the operator desires, but the responsibility for

submitting drug and alcohol MIS reports to RSPA remains with the

operator.

Contractor Compliance

The NPRM proposed that contractor employees should be included in

the group of employees that must undergo alcohol misuse testing because

their job performance is no less critical than the performance of

employees who work directly for operators. RSPA proposed limiting the

employees, including contractors, covered by the alcohol misuse rule to

those who perform operation, maintenance, or emergency-response

functions, on the pipeline or LNG facility, that are regulated under

part 192, 193, or 195. Seven commenters indicated that RSPA should

exclude contractor employees from the definition of ``employee.'' Some

commenters suggested that RSPA should be responsible for ensuring that

contractor employees are in compliance with parts 40 and 199.

RSPA Response. RSPA believes that contractor employees must be

included in the group of employees subject to the alcohol misuse

provisions. The performance of safety-sensitive functions by contract

employees is no less critical than the performance of the employees who

work directly for operators.

Advisory Committee Reviews

Section 4(b) of the Natural Gas Pipeline Safety Act of 1968, as

amended (49 U.S.C. 1673(b)), and section 204(b) of the Hazardous Liquid

Pipeline Safety Act of 1979, as amended (Pub. L. 97-468, January 14,

1983), each provide that proposed amendments to safety standards

established under the statutes be submitted to the pipeline advisory

committees for consideration. Of the 14 ballots received, 12 were in

favor of implementing an alcohol misuse prevention program and 2 were

opposed. The advisory members comments indicate they are generally in

favor of an alcohol testing prevention program for the pipeline

industry which has limited testing provisions (post-accident and

reasonable suspicion) such as those discussed in this final rule.

In January 1993, copies of the NPRM were mailed to each member of

the Technical Pipeline Safety Standards Committee and the Technical

Hazardous Liquid Pipeline Safety Standards Committee. On November 29,

1993, RSPA mailed additional copies of the NPRM to each member, and

requested that the committees vote by mail on the proposals in the

NPRM, and provide any additional comments.

Regulatory Analyses and Notices

E.O. 12866 and DOT Regulatory Policies and Procedures

The final rule is a significant regulatory action under Executive

Order 12866, and has been reviewed under that order. It is significant

under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,

1979) because it is of substantial public interest. A regulatory

evaluation is available for review in the docket. RSPA has evaluated

the industry-wide costs and benefits relating to the implementation of

the alcohol misuse prevention program for pipeline operators. RSPA has

calculated the total cost of this program for the first year to be

$1,876,270. The exclusion of pre-employment and random testing from the

final rule has provided a substantial reduction in the total cost of

the alcohol program. We have projected yearly program costs of

$186,407, with a slight increase every third year to allow for major

equipment overhaul which would project a total program cost of

$258,907. The total 10-year program costs are estimated to be

$3,806,745. The total 10-year discounted costs are projected to be

$3,270,684 (uses net present value at 7%).

RSPA believes that major cost benefits will accrue from this rule,

including the prevention of potential injuries, fatalities and property

losses resulting from accidents attributed to alcohol misuse, and

improved worker productivity and estimates the savings to be

$15,344,000.

Paperwork Reduction Act

The final rule sets forth new alcohol misuse prevention program

requirements and includes information collection requirements subject

to the Paperwork Reduction Act. These requirements have been submitted

to the Office of Management and Budget (OMB) for approval under the

Paperwork Reduction Act of 1980 (44 U.S.C. Chapter 35) and 5 CFR Part

1320. Information collection requirements are not effective until

Paperwork Reduction Act clearance has been received.

Regulatory Flexibility Act

The final rule affects all entities subject to part 192, 193, or

195, except operators of master meter systems and liquefied petroleum

gas (LPG) operators, which are exempt. Master meter systems and LPG

operators constitute the bulk of small businesses or other small

entities that operate gas pipeline systems subject to part 192. There

are few, if any, small entities that operate hazardous liquid or carbon

dioxide pipelines subject to part 195, or LNG facilities subject to

part 193. Therefore, I certify under section 605 of the Regulatory

Flexibility Act (5 U.S.C.) that this final rule will not have a

significant economic impact on a substantial number of small entities.

Executive Order 12612

This regulation 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, in accordance with Executive Order

12612 (52 FR 41685; October 30, 1987), RSPA has determined that this

regulation 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:

1. The title for part 199 is revised to read as follows:

PART 199--DRUG AND ALCOHOL TESTING

2. The authority citation for part 199 continues to read as

follows:

Authority: 49 App. U.S.C. 1672, 1674a, 1681, 1804, 1808, and

2002; 49 CFR 1.53.

3. Sections 199.1 through 199.25 are designated as subpart A, and

subpart B is added to read as follows:

Subpart B--Alcohol Misuse Prevention Program

Sec.

199.200 Purpose.

199.201 Applicability.

199.202 Alcohol misuse plan.

199.203 Alcohol testing procedures.

199.205 Definitions.

199.207 Preemption of State and local laws.

199.209 Other requirements imposed by operators.

199.211 Requirement for notice.

199.213 Starting date for alcohol testing programs.

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.

Subpart B--Alcohol Misuse Prevention Program

Sec. 199.200 Purpose.

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.

Sec. 199.201 Applicability.

This subpart applies to gas, hazardous liquid and carbon dioxide

pipeline operators and liquefied natural gas operators subject to parts

192, 193, or 195 of this chapter. However, this subpart does not apply

to operators of master meter systems defined in Sec. 191.3 or liquefied

petroleum gas (LPG) operators as discussed in Sec. 192.11 of this

chapter.

Sec. 199.202 Alcohol misuse plan.

Each operator shall maintain and follow a written alcohol misuse

plan that conforms to the requirements of this subpart and the DOT

procedures in part 40 of this title. 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.

Sec. 199.203 Alcohol testing procedures.

Each operator shall ensure that all alcohol testing conducted under

this subpart complies with the procedures set forth in part 40 of this

title. The provisions of 49 CFR part 40 that address alcohol testing

are made applicable to operators by this subpart.

Sec. 199.205 Definitions.

As used in this subpart:

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 or carbon dioxide pipeline facilities.

Administrator means the Administrator of the Research and Special

Programs Administration (RSPA), or any person who has been delegated

authority in the matter concerned.

Alcohol means the intoxicating agent in beverage alcohol, ethyl

alcohol or other low molecular weight alcohols including methyl or

isopropyl alcohol.

Alcohol concentration (or content) means the alcohol in a volume of

breath expressed in terms of grams of alcohol per 210 liters of breath

as indicated by an evidential breath test under this subpart.

Alcohol use means the consumption of any beverage, mixture, or

preparation, including any medication, containing alcohol.

Confirmation test means a second test, following a screening test

with a result 0.02 or greater, that provides quantitative data of

alcohol concentration.

Consortium means an entity, including a group or association of

employers, recipients, or contractors, that provides alcohol testing as

required by this subpart or other DOT alcohol testing rules and that

acts on behalf of the operators.

Covered employee means a person who performs on a pipeline or at an

LNG facility an operation, maintenance, or emergency-response function

regulated by parts 192, 193, or 195 of this chapter. Covered employee

and individual or individual to be tested have the same meaning for the

purposes of this subpart. The term covered employee does not include

clerical, truck driving, accounting, or other functions not subject to

parts 192, 193, or 195. The person may be employed by the operator, be

a contractor engaged by the operator, or be employed by such a

contractor.

Covered function (safety-sensitive function) means an operation,

maintenance, or emergency-response function that is performed on a

pipeline or LNG facility and the function is regulated by parts 192,

193, or 195.

DOT agency An agency (or operating administration) of the United

States Department of Transportation administering regulations requiring

alcohol testing (14 CFR parts 61, 63, 65, 121, 135; 49 CFR parts 199,

219, 382, and 654) in accordance with part 40 of this title.

Employer or operator means a person who owns or operates a pipeline

or LNG facility subject to parts 192, 193, or 195 of this chapter.

Performing (a covered function): An employee is considered to be

performing a covered function (safety-sensitive function) during any

period in which he or she is actually performing, ready to perform, or

immediately available to perform such covered functions.

Refuse to submit (to an alcohol test) means that a covered employee

fails to provide adequate breath for testing without a valid medical

explanation after he or she has received notice of the requirement to

be tested in accordance with the provisions of this subpart, or engages

in conduct that clearly obstructs the testing process.

Screening test means an analytical procedure to determine whether a

covered employee may have a prohibited concentration of alcohol in his

or her system.

State agency means an agency of any of the several states, the

District of Columbia, or Puerto Rico that participates under section 5

of the Natural Gas Pipeline Safety Act of 1968 (49 App. U.S.C. 1674) or

section 205 of the Hazardous Liquid Pipeline Safety Act of 1979 (49

App. U.S.C. 2009).

Substance abuse professional means a licensed physician (Medical

Doctor or Doctor of Osteopathy), or a licensed or certified

psychologist, social worker, employee assistance professional, or

addiction counselor (certified by the National Association of

Alcoholism and Drug Abuse Counselors Certification Commission), with

knowledge of and clinical experience in the diagnosis and treatment of

alcohol-related disorders.

Sec. 199.207 Preemption of State and local laws.

(a) Except as provided in paragraph (b) of this section, this

subpart 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

subpart is not possible;

(2) Compliance with the State or local requirement is an obstacle

to the accomplishment and execution of any requirement in this subpart;

or

(3) The State or local requirement is a pipeline safety standard

applicable to interstate pipeline facilities.

(b) This subpart 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.

Sec. 199.209 Other requirements imposed by operators.

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.

Sec. 199.211 Requirement for notice.

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.

Sec. 199.213 Starting date for alcohol testing programs.

(a) Large operators. Each operator with more than fifty covered

employees on February 15, 1994 shall implement the requirements of this

subpart beginning on January 1, 1995.

(b) Small operators. Each operator with fifty or fewer covered

employees on February 15, 1994 shall implement the requirements of this

subpart beginning on January 1, 1996.

(c) All operators commencing operations after February 15, 1994

shall have an alcohol misuse program that conforms to this subpart by

January 1, 1996, or by the date an operator begins operations,

whichever is later.

Sec. 199.215 Alcohol concentration.

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.

Sec. 199.217 On-duty use.

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.

Sec. 199.219 Pre-duty use.

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.

Sec. 199.221 Use following an accident.

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

Sec. 199.225(a), or the operator has determined that the employee's

performance could not have contributed to the accident.

Sec. 199.223 Refusal to submit to a required alcohol test.

Each operator shall require a covered employee to submit to a post-

accident alcohol test required under Sec. 199.225(a), a reasonable

suspicion alcohol test required under Sec. 199.225(b), or a follow-up

alcohol test required under Sec. 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.

Sec. 199.225 Alcohol tests required.

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) 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.

(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 RSPA upon request of the Administrator.

(ii) 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.

(iii) 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 Secs. 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

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(b)(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

Sec. 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.

Sec. 199.227 Retention of records.

(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

Sec. 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.

Sec. 199.229 Reporting of alcohol testing results.

(a) Each large operator (having more than 50 covered employees)

shall submit an annual management information system (MIS) report to

RSPA of its alcohol testing results in the form and manner prescribed

by the Administrator, by March 15 of each year for the previous

calendar year (January 1 through December 31). The Administrator may

require by written notice that a small operator (50 or fewer covered

employees), not otherwise required to submit annual MIS reports, submit

such a report to RSPA.

(b) Each operator that is subject to more than one DOT agency

alcohol rule shall identify each employee covered by the regulations of

more than one DOT agency. The identification will be by the total

number of covered employees. Prior to conducting any alcohol test on a

covered employee subject to the rules of more than one DOT agency, the

employer shall determine which DOT agency rule or rules authorizes or

requires the test. The test result information shall be directed to the

appropriate DOT agency or agencies.

(c) Each report, required under this section, shall be submitted to

the Office of Pipeline Safety Compliance (OPS), Research and Special

Programs Administration, Department of Transportation, room 2335, 400

Seventh Street, SW., Washington, DC 20590.

(d) Each report that contains information on an alcohol screening

test result of 0.02 or greater or a violation of the alcohol misuse

provisions of Secs. 199.215 through 199.223 of this subpart shall be

submitted on ``RSPA Alcohol Testing MIS Data Collection Form'' and

include the following informational elements:

(1) Number of covered employees.

(2) Number of covered employees subject to testing under the

alcohol misuse rule of another operating administration by each agency.

(3) (i) Number of screening tests by type of test.

(ii) Number of confirmation tests by type of test.

(4) Number of confirmation tests indicating an alcohol

concentration of 0.02 or greater but less than 0.04, by type of test.

(5) Number of confirmation tests indicating an alcohol

concentration of 0.04 or greater, by type of test.

(6) Number of covered employees with a confirmation test indicating

an alcohol concentration of 0.04 or greater or who have violations of

other alcohol misuse provisions who were returned to duty in covered

positions (having complied with the recommendations of a substance

abuse professional as described in Secs. 199.235 and 199.243).

(7) Number of covered employees who were administered alcohol and

drug tests at the same time, with both a positive drug test and an

alcohol test indicating an alcohol concentration of 0.04 or greater.

(8) Number of covered employees who were found to have violated

other provisions of Secs. 199.215 through 199.221, and any action taken

in response to the violation.

(9) Number of covered employees who refused to submit to an alcohol

test required under this subpart, and the action taken in response to

the refusal.

(10) Number of supervisors who have received required training

during the reporting period in determining the existence of reasonable

suspicion of alcohol misuse.

(e) Each report with no screening alcohol test results of 0.02, or

greater or violations of the alcohol misuse provisions of Secs. 199.215

through 199.223 of this subpart shall be submitted on ``RSPA Alcohol

Testing MIS Data Collection EZ Form'' and include the following

informational elements. (This ``EZ'' report may only be submitted if

the program results meet these criteria)

(1) Number of covered employees.

(2) Number of covered employees subject to testing under the

alcohol misuse rule of another operating administration identified by

each agency.

(3) Number of screening tests by type of test.

(4) Number of covered employees who refused to submit to an alcohol

test required under this subpart, and the action taken in response to

the refusal.

(5) Number of supervisors who have received required training

during the reporting period in determining the existence of reasonable

suspicion of alcohol misuse.

(f) A consortium may prepare reports on behalf of individual

pipeline operators for purposes of compliance with this reporting

requirement. However, the pipeline operator shall sign and submit such

a report and shall remain responsible for ensuring the accuracy and

timeliness of each report prepared on its behalf by a consortium.

Sec. 199.231 Access to facilities and records.

(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 Sec. 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 a 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 required to be maintained

under this subpart pertaining to a covered employee to the employee or

the decisionmaker in a lawsuit, grievance, or other proceeding

initiated by or on behalf of the individual, and arising from the

results of an alcohol test administered under this subpart, or from the

operator's determination that the covered employee engaged in conduct

prohibited by Secs. 199.215 through 199.223 (including, but not limited

to, a worker's compensation, unemployment compensation, or other

proceeding relating to a benefit sought by the employee).

(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.

Sec. 199.233 Removal from covered function.

Except as provided in Secs. 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 Secs. 199.215 through

199.223 or an alcohol misuse rule of another DOT agency.

Sec. 199.235 Required evaluation and testing.

No operator shall permit a covered employee who has engaged in

conduct prohibited by Secs. 199.215 through 199.223 to perform covered

functions unless the employee has met the requirements of Sec. 199.243.

Sec. 199.237 Other alcohol-related conduct.

(a) No operator shall permit a covered employee tested under the

provisions of Sec. 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 Sec. 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.

Sec. 199.239 Operator obligation to promulgate a policy on the misuse

of alcohol.

(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 Sec. 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.

Sec. 199.241 Training for supervisors.

Each operator shall ensure that persons designated to determine

whether reasonable suspicion exists to require a covered employee to

undergo alcohol testing under Sec. 199.225(b) receive at least 60

minutes of training on the physical, behavioral, speech, and

performance indicators of probable alcohol misuse.

Sec. 199.243 Referral, evaluation, and treatment.

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

Secs. 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

Secs. 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 Secs. 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.

Sec. 199.245 Contractor employees.

(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.

Issued in Washington, DC on January 25, 1994.

Federico Pena,

Secretary of Transportation.

Ana Sol Gutierrez,

Acting Administrator, Research and Special Programs Administration.

Note: The following appendix and exhibit will not appear in the

Code of Federal Regulations.

BILLING CODE 4910-60-P

TR15FE94.020

TR15FE94.021

TR15FE94.022

TR15FE94.023

TR15FE94.024

TR15FE94.025

TR15FE94.026

TR15FE94.027

TR15FE94.028

TR15FE94.029

[FR Doc. 94-2034 Filed 2-3-94; 1:00 pm]

BILLING CODE 4910-60-C