49 C.F.R. Subpart C—Alcohol Misuse Prevention Program
Title 49 - Transportation
Source: Amdt. 199–9, 59 FR 7430, Feb. 15, 1994, unless otherwise noted. Redesignated by Amdt. 199–19, 66 FR 47118, Sept. 11, 2001.
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.
Title 49: Transportation
PART 199—DRUG AND ALCOHOL TESTING
Subpart C—Alcohol Misuse Prevention Program
§ 199.200 Purpose.
§ 199.201 [Reserved]
§ 199.202 Alcohol misuse plan.
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]
§ 199.209 Other requirements imposed by operators.
(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.
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]
§ 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.
§ 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.
§ 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.
§ 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 §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.
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.
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.
(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.
(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.
(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.
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.
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.
(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.
(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.
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.
(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.
(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.
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