Drug and Alcohol Testing; Substance Abuse Professional Evaluation for Drug Use

DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 199

[RSPA Docket PS-128; Amendment 199-15]

RIN 2137-AC84

Drug and Alcohol Testing; Substance Abuse Professional Evaluation

for Drug Use

AGENCY: Research and Special Programs Administration, DOT.

ACTION: Final rule.

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SUMMARY: In this final rule, the Research and Special Programs

Administration (RSPA) modifies current procedures in its drug testing

regulations by requiring a face-to-face evaluation by substance abuse

professionals (SAP) for pipeline employees who have either received a

positive drug test or have refused a drug test required by RSPA. In

addition, the SAP could require a pipeline employee to complete a

rehabilitation program before being eligible to return to duty. Similar

requirements are included in the drug testing regulations of the other

modal administrations. Adding these requirements will ensure conformity

among the modal administrations which will assist with the overall

management of RSPA's drug testing regulations.

DATES: This rule is effective April 16, 1998.

FOR FURTHER INFORMATION CONTACT: Catrina M. Pavlik, Drug/Alcohol

Program Analyst, Research and Special Programs Administration, Office

of Pipeline Safety, Room 2335, 400 Seventh Street, SW, Washington, DC

20590. Telephone: (202)366-6199, Fax: (202)366-4566, e-mail:

[email protected]

SUPPLEMENTARY INFORMATION:

Background

In accordance with 49 U.S.C. 60601 of the pipeline safety law, RSPA

administers drug testing regulations for pipeline operators.

On August 20, 1997, RSPA published in the Federal Register (62 FR

44250, Docket No. PS-128, Amendment 15) a notice of proposed rulemaking

to modify current procedures in its drug testing regulations governing

situations in which pipeline employees test positive on a drug test.

Because similar requirements are found in the drug testing regulations

of the other modal administrations, and in RSPA's alcohol testing

regulations, RSPA proposed to make the procedures and policy in those

regulations applicable to pipeline operators under the drug testing

regulations. RSPA proposed to require pipeline operators to utilize a

substance abuse professional (SAP) to evaluate pipeline employees who

have either received a positive drug test or have refused a drug test

required by RSPA. In addition, the SAP could require an employee to

complete a rehabilitation program before being eligible to return to

duty, if needed. RSPA also proposed to revise the word ``employee'' to

``covered employee'' and to add the definition for ``covered

function.'' Comments to the notice of proposed rulemaking were due on

or before October 20, 1997.

Comments Received

RSPA received 10 comments: 6 from pipeline operators, 1 from a

trade association and 3 from consortia. The comments fell within the

following general categories: (1) Review of Drug Testing Results; (2)

Drug Test Required--Return to Duty Testing; (3) SAP Determines Follow-

up Testing; (4) Qualification for a SAP; and (5) Other Comments. The

comments are addressed based on those categories.

1. Review of Drug Testing Results

The notice of proposed rulemaking proposed that if the Medical

Review Officer (MRO) determines, after appropriate review, that there

is no legitimate medical explanation for the confirmed positive test

result, other than the unauthorized use of prohibited drug(s), the MRO

shall verify the test result as positive. If unauthorized use is

[[Page 12999]]

found, the MRO shall require that the covered employee who engages in

conduct prohibited under Section 199.9, be evaluated face-to-face by a

substance abuse professional who shall determine what assistance, if

any, the covered employee needs in resolving problems associated with

illegal drug use.

All ten commenters supported this portion of the notice of proposed

rulemaking. They stated that they were already performing this function

for employees that are covered by another operating administration.

They also said that conformity among the modes would make administering

this program much easier.

RSPA received 2 comments on the continued employment of a covered

employee after a positive drug test result or a refusal to test. In

addressing the concerns of these commenters, RSPA has decided to change

the language so that the MRO, not only must refer the covered employee

to a SAP, but must also refer him/her to the personnel or

administrative officer for the pipeline operator. This will enable the

operator to follow through with internal proceedings that are in

accordance with the operator's anti-drug plan.

2. Drug Test Required--Return To Duty Testing

The notice proposed language in Section 199.11(e) which stated that

a covered employee who refuses to take or does not pass a drug test may

not return to duty in the covered function until the covered employee

has been evaluated by a SAP, and has properly followed any prescribed

rehabilitation program.

We received 3 comments to review and clarify the language in this

section. The first commenter was concerned that the proposed language

creates the inference that a covered employee who refuses to take a

drug test or who does not pass a drug test has a right to return to

work upon evaluation by a SAP. Specifically, the concern was that the

wording may have the unintended effect of altering the employer/

employee relationship and requiring an employer to provide a

rehabilitation opportunity to an employee, with that employee

thereafter having a right to return to work for the employer. The

second commenter wanted RSPA to clarify that the evaluation conducted

by the SAP would be done on a face-to-face basis. The third commenter

requested clarification of the ``pass or fail'' language.

RSPA agrees with the three comments and is revising the phrasing of

the language in Section 199.11(e) along with the previously mentioned

change in Section 199.15(d)(2). This will not alter the existing

employer/employee relationship and will not require that the employer

provide rehabilitation to an employee. RSPA is also clarifying that the

SAP evaluation must be conducted on a face-to-face basis, and has

changed the language to use ``positive or negative.''

One comment suggested that the follow-up testing requirements be

separated from the return-to-duty requirements. RSPA has modified

Section 199.11 to add Follow-Up Testing under a new subsection (f).

3. SAP Determines Follow-up Testing

RSPA received 2 comments requesting clarification of the language

on the role of the MRO in relation to the SAP when determining the

follow-up testing schedule. After further consideration, RSPA has

agreed to remove the consultation requirement between the MRO and the

SAP when determining the follow-up testing schedule. The role of

determining the follow-up testing schedule will be the sole function of

the SAP.

4. Qualifications for a SAP

RSPA received 1 comment requesting specific language on an MRO's

ability to serve as a SAP. This change is not necessary because the

definition of a SAP, found in 49 CFR Part 40, does not prohibit an MRO

from becoming a SAP.

5. Other Comments

RSPA received 2 comments from pipeline operators requesting changes

in parts of the regulations that were not covered by the notice of

proposed rulemaking, such as, substituting a 72 hour time period for

the 60 day time period requirement, eliminating the RSPA option for the

pipeline operator to require payment in advance for a retest, and

eliminating the RSPA requirement for an MRO to declare a specimen

negative that has been determined to be scientifically insufficient.

RSPA received 1 comment requesting clarification on whether a

positive pre-employment test result necessitates return-to-duty and

follow-up testing. RSPA currently addresses this in Section 199.11(a).

It states that no operator may hire or contract any person unless that

person passes a drug test or is covered by an anti-drug program that

conforms to the requirements of the drug testing regulations.

Advisory Committee Review

The Technical Hazardous Liquid Pipeline Safety Standards Committee

(THLPSSC) and the Technical Pipeline Safety Standards Committee (TPSSC)

met on November 18, 1997, to consider the items discussed in the August

20, 1997, Notice of Proposed Rulemaking, in Docket No. PS-128. (The

THLPSSC and TPSSC were established by statute to evaluate the technical

feasibility, reasonableness, and practicability of proposed

regulations.) The consensus of the THLPSSC and TPSSC was to support the

Notice of Proposed Rulemaking.

Regulatory Analyses and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

This final rule requires that pipeline employees who either test

positive for prohibited drugs or refuse to be tested must be evaluated

by a substance abuse professional (SAP) who could require that an

employee undergo rehabilitation prior to the employee's return to duty

in a covered function. The reason for this rule change is to conform

RSPA's drug testing program to its alcohol testing program as well as

the drug and alcohol testing programs of all other DOT modes.

RSPA concluded that because all pipeline companies already employ

SAPs for their alcohol testing programs it is likely the same

professional will be used to perform this same function on the drug

testing program. Furthermore, this final rule requires that employees

who test positive could be required to undergo rehabilitation before

their return to duty. RSPA, however, does not require that the employer

pay for this treatment. Many employees may also be terminated or placed

in non-covered functions rather than be given the opportunity for

treatment. Therefore, the cost of the treatment is not the financial

responsibility of the employer. Another factor that was taken into

account is that the most recent drug testing results show that only

0.7% of the employees tested positive for drugs. Therefore, the number

of employees who would need to be evaluated by a SAP is minimal. Given

the fact that pipeline companies already employ or presently contract

with SAPs, they are not required to pay for or offer rehabilitation for

employees who test positive, and that a minimal number of employees

would require evaluation, RSPA believes that this rule will have little

to no economic impact on any pipeline company. RSPA finds that this

rule is not significant under Section 3(f) of Executive Order 12866 and

also not significant under the Regulatory Policies and Procedures of

the Department of Transportation.

[[Page 13000]]

Executive Order 12612

This final rule would not have substantial direct effect on states,

on the relationship between the Federal Government and the states, or

on the distribution of power and responsibilities among the various

levels of Government. Therefore, in accordance with Executive Order

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

final rule would not have sufficient federalism implications to warrant

preparation of a federalism assessment.

Regulatory Flexibility Act

Because this final rule will impose little to no additional cost on

pipeline operators (see discussion on the regulatory evaluation), RSPA

certifies under section 605 of the Regulatory Flexibility Act (5

U.S.C.) that this rule will not have a significant economic impact on a

substantial number of small entities.

Paperwork Reduction Act

There are no new information collection requirements in this rule.

Unfunded Mandates Reform Act of 1995

This final rule does not impose unfunded mandates under the

Unfunded Mandates Reform Act of 1995. It does not result in costs of

$100 million or more to either State, local, or tribal governments, in

the aggregate, or to the private sector, and is the least burdensome

alternative that achieves the objective of the rule.

List of Subjects in 49 CFR Part 199

Drug testing, Pipeline safety.

In consideration of the foregoing RSPA amends, 49 CFR part 199 as

follows:

PART 199--[AMENDED]

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

follows:

Authority: 49 App. U.S.C. 60101 et seq.; 49 CFR 1.53.

2. Section 199.3 is amended by removing the definition of Employee

and adding new definitions of Covered employee and Covered function to

read as follows:

Sec. 199.3 Definitions.

* * * * *

Covered employee means a person who performs, on a pipeline or LNG

facility, an operations, maintenance, or emergency-response function

regulated by part 192, 193, or 195 of this chapter. This does not

include clerical, truck driving, accounting, or other functions not

subject to part 192, 193, or 195. The person may be employed by the

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

such a contractor.

Covered function means an operations, maintenance, or emergency-

response function conducted on the pipeline or LNG facility that is

regulated by part 192, 193, or 195.

* * * * *

3. Section 199.11 is amended by revising paragraph (e) and adding

paragraph (f) to read as follows:

Sec. 199.11 Drug tests required.

* * * * *

(e) Return to duty testing. A covered employee who refuses to take

or has a positive drug test may not return to duty in the covered

function until the covered employee has had a face-to-face evaluation

conducted by a substance abuse professional, and has properly followed

any prescribed assistance.

(f) Follow-up testing. A covered employee who refuses to take or

has a positive drug test shall be subject to unannounced follow-up drug

tests administered by the operator following the covered employee's

return to duty. The number and frequency of such follow-up testing

shall be determined by a substance abuse professional, but shall

consist of at least six tests in the first 12 months following the

covered employee's return to duty. In addition, follow-up testing may

include testing for alcohol as directed by the substance abuse

professional, to be performed in accordance with 49 CFR part 40.

Follow-up testing shall not exceed 60 months from the date of the

covered employee's return to duty. The substance abuse professional may

terminate the requirement for follow-up testing at any time after the

first six tests have been administered, if the substance abuse

professional determines that such testing is no longer necessary.

4. Section 199.15 is amended by revising paragraph (d)(2) and

adding new paragraphs (e) and (f) to read as follows:

Sec. 199.15 Review of drug testing results.

* * * * *

(d) * * *

(2) If the MRO determines, after appropriate review, that there is

no legitimate medical explanation for the confirmed positive test

result other than the unauthorized use of a prohibited drug, the MRO

shall refer:

(i) The individual tested to a personnel or administrative office

for further proceedings in accordance with the operator's anti-drug

plan; and

(ii) For evaluation by a SAP who shall determine what assistance,

if any, the employee needs in resolving problems associated with drug

misuse.

* * * * *

(e) Evaluation and rehabilitation may be provided by the operator,

by a substance abuse professional under contract with the operator, or

by a substance abuse professional not affiliated with the operator. The

choice of substance abuse professional and assignment of costs shall be

made in accordance with the operator/employee agreements and operator/

employee policies.

(f) The operator shall ensure that a substance abuse professional,

who determines that a covered employee requires assistance in resolving

problems with drug abuse, does not refer the covered employee to the

substance abuse professional's private practice or to a person or

organization from which the substance abuse professional receives

remuneration or in which the substance abuse professional has a

financial interest. This paragraph does not prohibit a substance abuse

professional from referring a covered employee for assistance provided

through:

(1) A public agency, such as a State, county, or municipality;

(2) The operator or a person under contract to provide treatment

for drug problems on behalf of the operator;

(3) The sole source of therapeutically appropriate treatment under

the employee's health insurance program; or

(4) The sole source of therapeutically appropriate treatment

reasonably accessible to the employee.

Issued in Washington, DC, on March 11, 1998.

Kelley S. Coyner,

Acting Administrator.

[FR Doc. 98-6859 Filed 3-16-98; 8:45 am]

BILLING CODE 4910-60-P