Industry Evolution: Updated Drug & Alcohol Testing

PHMSA has proposed updates to the requirements for drug and alcohol testing of employees after an accident/incident. The revised and new language in the OQ NPRM limits exemptions from post-accident/incident testing only to situations when sufficient information exists to establish that the employee(s) had no role in the accident/incident. The additional language will also require operators to document specific reasons to justify why testing was not administered and to retain such documentation for at least three years.

The current PHMSA regulations require documentation of decisions not to administer a post-accident alcohol test, however, documentation for decisions not to conduct a post-accident drug test is only implied in the regulation, although it is generally followed.

PHMSA’s move to expand and clarify the language for post-accident/incident drug and alcohol testing stems from the National Transportation Safety Boards (NTSB) safety recommendation to PHMSA on September 26, 2011, via NTSB Recommendation.

CURRENT PHMSA REGULATIONS

199.105 Drug tests required.
Each operator shall conduct the following drug tests for the presence of a prohibited drug:

(b) Post-accident testing. As soon as possible but no later than 32 hours after an accident, an operator shall drug test each employee whose performance either contributed to the accident or cannot be completely discounted as a contributing factor to the accident. An operator may decide not to test under this paragraph but such a decision must be based on the best information available immediately after the accident that the employee’s performance could not have contributed to the accident or that, because of the time between that performance and the accident, it is not likely that a drug test would reveal whether the performance was affected by drug use.

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.

PHMSA PROPOSED CHANGES

PHMSA’s proposed language in the OQ NPRM would require decisions not to conduct a post-accident/incident drug or alcohol test to be based on specific information that a covered employee’s performance had no role in either the cause or the severity of the accident/incident. This revised language removes operator discretion under the current limiting verbiage of operator’s determination and best available information.

Accordingly, PHMSA has proposed the following language:

199.105 Drug tests required.

* * * * *
(b) Post-accident testing. (1) As soon as possible but no later than 32 hours after an accident, an operator must drug test each surviving covered employee whose performance of a covered function either contributed to the accident or cannot be completely discounted as a contributing factor to the accident. An operator may decide not to test under this paragraph but such a decision must be based on specific information that the covered employee’s performance had no role in the cause(s) or severity of the accident or because of the time between that performance and the accident, it is not likely that a drug test would reveal whether the performance was affected by drug use.

Note: PHMSA has modified its proposed language in 199.105(b) to delete the end of the last line, which states; or because of the time between that performance and the accident, it is not likely that a drug test would reveal whether the performance was affected by drug use.

(2) If a test required by this section is not administered within the 32 hours following the accident, the operator must prepare and maintain its decision stating the reasons why the test was not promptly administered. If a test required by paragraph (b)(1) of this section is not administered within 32 hours following the accident, the operator must cease attempts to administer a drug test and must state in the record the reasons

199.225 Alcohol tests required.

Each operator must conduct the following types of alcohol tests for the presence of alcohol:

(a) * * *

(1) As soon as practicable following an accident, each operator must 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 must be based on specific information that the covered employee’s performance had no role in the cause(s) or severity of the accident.

Retention of Records in 49 CFR 199.117 (Drug) and 199.227 (Alcohol)

PHMSA has proposed that records of decisions not to administer post-incident/accident employee drug or alcohol tests must be kept for a minimum of three (3) years.

Reporting Requirements in 49 CFR 199.119 (Drug) and 199.229 (Alcohol)

PHMSA’s pipeline safety regulations at 49 CFR 191.7 and 195.58 require electronic reporting of most pipeline safety reports through the PHMSA Portal. In the OQ NPRM, PHMSA proposes to also require electronic reporting for drug testing results required at 199.119 and alcohol testing results required at 199.229. Currently, pipeline operators with greater than 50 covered employees are required to submit these reports no later than March 15th of each year for the prior calendar year (January 1 through December 31). Operators with fewer than 50 covered employees are only required to file these reports if requested to do so pursuant to written notice from PHMSA. Under the proposed update to the reporting and recordkeeping requirements in the OQ NPRM, PHMSA proposes to modify these regulations to specify that PHMSA may provide such required notices to operators in the online PHMSA Portal.

Recommendation from Joint Session of GPAC and LPAC:

The PHMSA proposed rule changes were unanimously accepted with PHMSA’s amendment to 49 CFR 199.105(b).

Helpful Resources

Under PHMSA’s proposed new reporting requirements, each report required under this section must be submitted electronically at http://damis.dot.gov.

An operator may obtain a username and password for electronic reporting from the PHMSA Portal (https://portal.phmsa.dot.gov/phmsaportallanding).  If electronic reporting imposes an undue burden and hardship, the operator may submit a written request for an alternative reporting method.

Special Note

Although timing for the issuance of Final Rules on these regulatory updates is unknown, it is anticipated that PHMSA will issue a Final Rules on these topics later this year. One factor that may influence the timing is the recent enactment of the PIPES Act of 2016, which includes an emphasis for PHMSA to accelerate the numerous rulemakings outstanding from the 2011 pipeline safety bill. Under the new PIPES Act, PHMSA is required to provide a report to Congress before the end of October 2016 on the status of statutory directives, including the status of each mandate, reasons for its incompletion, and estimated completion date.  The Congressional reporting requirement is anticipated to create some urgency for PHMSA to complete several pending NPRMs, which would include the OQ rule updates.

It’s important to remember that PHMSA is required by law to hold advisory committee meetings with the GPAC and LPAC groups. PHMSA is not bound by the recommendations that are agreed to by the PACs, but will consider those recommendations as they develop a Final Rule.