Interpretation Response #PI-19-0018

Below is the interpretation response detail and a list of regulations sections applicable to this response.

Interpretation Response Details

Response Publish Date: 12/04/2019

Company Name: Fleetworthy Solutions

Individual Name: Mr. Billy Stover

Location State: WI Country: US

View the Interpretation Document

Response text:

Mr. Billy Stover
Fleetworthy Solutions
DOT Regulatory Compliance Consultant
4600 American Parkway
Suite 300
Madison, WI 53718

Dear Mr. Stover:

In a letter to the Pipeline and Hazardous Materials Safety Administration (PHMSA) dated October 28, 2019, you requested an interpretation of the PHMSA Drug and Alcohol Testing regulations in 49 Code of Federal Regulations (CFR) Part 199. Specifically, you requested clarification as to whether certain employees would be subject to DOT drug and alcohol (D&A) testing, i.e., the testing described in the U.S. Department of Transportation (DOT) Procedures for Transportation Workplace Drug and Alcohol Testing Programs in 49 CFR Part 40.

Part 199 requires operators of pipeline facilities subject to Parts 192, 193, or 195 to D&A test "covered employees" for the presence of prohibited drugs and alcohol using the DOT procedures in Part 40. A "covered employee" is an individual who performs a D&A "covered function." Therefore, to determine whether an employee is subject to DOT D&A testing, it is essential to understand the various terms used and/or defined by PHMSA.

Per §199.3:
Covered employee, employee, or individual to be tested means a person who performs a "covered function," including persons employed by operators, contractors engaged by operators, and persons employed by such contractors.

Covered function means an operations, maintenance, or emergency-response function regulated by Parts 192, 193, or 195 of this chapter that is performed on a "pipeline" or on an "LNG facility."

Per §192.3:
Pipeline means all parts of those physical facilities through which gas moves in transportation, including pipe, valves, and other appurtenance attached to pipe, compressor units, metering stations, regulator stations, delivery stations, holders, and fabricated assemblies.

Per §195.2:
Pipeline or pipeline system means all parts of a pipeline facility through which a hazardous liquid or carbon dioxide moves in transportation, including, but not limited to, line pipe, valves, and other appurtenances connected to line pipe, pumping units, fabricated assemblies associated with pumping units, metering and delivery stations and fabricated assemblies therein, and breakout tanks.

Per §193.2007:
LNG facility means a pipeline facility that is used for liquefying natural gas or synthetic gas or transferring, storing, or vaporizing liquefied natural gas.

A close read of the definitions above shows that the operations, maintenance, and emergency response functions described in the term "covered functions" means only those functions performed on those parts of a pipeline system through which the product flows in transportation or on those parts of an LNG plant where LNG is liquefied, vaporized, stored, or transferred. Parts 192, 193, and 195 each have subparts, sections, and paragraphs describing these operations, maintenance, and emergency functions.

You presented a scenario in which an employee is on-site and moves an extension cord to prevent slips, trips, or falls. You asked if this employee would be considered as performing a "covered function," and thus, would be a "covered employee" subject to DOT D&A testing.

While it is possible an employee performing an operations, maintenance, or emergency response function (i.e. covered function) on a pipeline or LNG facility may move an extension cord, the mere movement of an extension cord independent of an operations, maintenance, or emergency response function on a pipeline or LNG facility is not a "covered function." Therefore, this employee is not considered a "covered employee" and must not be DOT D&A tested.

Notwithstanding the above, nothing in Part 199 prohibits an employer from D&A testing any of its employees using non-DOT procedures.

If we can be of further assistance, please contact Tewabe Asebe at 202-366-5523.

Sincerely,

John A. Gale
Director, Office of Standards
and Rulemaking

Regulation Sections