{"operation":"document","citation":"PI-19-0018","title":"Fleetworthy Solutions — Pipeline Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2019-12-04","effective_on":null,"summary":"PI-19-0018 response to Fleetworthy Solutions concerning 199.3.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-pi-19-0018.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-pi-19-0018.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-pi-19-0018","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/pipeline/interpretations/73026/fleentworthy-solutions-pi-19-0018-12-04-2019-part-1991.pdf","body":"<<<PAGE 1>>>\n\nUS. Department\nofTransportation\nPipeline and Hazardous Materials\nSafety Administration\n1200 New Jersey Avenue SE\nWashington DC 20590\nDEC o , 2 0 19\nMr. Billy Stover\nFleetworthy Solutions\nDOT Regulatory Compliance Consultant\n4600 American Parkway\nSuite 300\nMadison, WI 53718\nDear Mr. Stover:\nIn a letter to the Pipeline and Hazardous Materials Safety Administration (PHMSA) dated\nOctober 28, 2019, you requested an interpretation of the PHMSA Drug and Alcohol Testing\nregulations in 49 Code of Federal Regulations (CFR) Part 199. Specifically, you requested\nclarification as to whether certain employees would be subject to DOT drug and alcohol (D&A)\ntesting, i.e., the testing described in the U.S. Department of Transportation (DOT) Procedures\nfor Transportation Workplace Drug and Alcohol Testing Programs in 49 CFR Part 40.\nPart 199 requires operators of pipeline facilities subject to Parts 192, 193, or 195 to D&A test\n\"covered employees\" for the presence of prohibited drugs and alcohol using the DOT procedures\nin Part 40. A \"covered employee\" is an individual who performs a D&A \"covered/unction. \"\nTherefore, to determine whether an employee is subject to DOT D&A testing, it is essential to\nunderstand the various terms used and/or defined by PHMSA.\nPer §199.3:\nCovered employee, employee, or individual to be tested means a person who performs a\n\"covered function,\" including persons employed by operators, contractors engaged by\noperators, and persons employed by such contractors.\nCovered function means an operations, maintenance, or emergency-response function\nregulated by Parts 192, 193, or 195 of this chapter that is performed on a ''pipeline \" or on\nan \"LNG facility. \"\nPer §192.3:\nPipeline means all parts of those physical facilities through which gas moves in\ntransportation, including pipe, valves, and other appurtenance attached to pipe,\ncompressor units, metering stations, regulator stations, delivery stations, holders, and\nfabricated assemblies.\nThe Pipeline and Hazardous Materials Safety Administration, Office of Pipeline Safety provides written clarifications of the Regulations (49 CFR\nParts 190-199) in the form of interpretation letters. These letters reflect the agency's current application ofthe regulations to the specific facts\npresented by the person requesting the clarification. Interpretations do not create legally-enforceable rights or obligations and are provided to\nhelp the public understand how to comply with the regulations.\n\n<<<PAGE 2>>>\n\n2\nPer §195.2:\nPipeline or pipeline system means all parts of a pipeline facility through which a\nhazardous liquid or carbon dioxide moves in transportation, including, but not limited to,\nline pipe, valves, and other appurtenances connected to line pipe, pumping units,\nfabricated assemblies associated with pumping units, metering and delivery stations and\nfabricated assemblies therein, and breakout tanks.\nPer § 193 .2007:\nLNG facility means a pipeline facility that is used for liquefying natural gas or synthetic\ngas or transferring, storing, or vaporizing liquefied natural gas.\nA close read of the definitions above shows that the operations, maintenance, and emergency\nresponse functions described in the term \"covered functions\" means only those functions\nperformed on those parts of a pipeline system through which the product flows in transportation\nor on those parts of an LNG plant where LNG is liquefied, vaporized, stored, or transferred.\nParts 192, 193, and 195 each have subparts, sections, and paragraphs describing these operations,\nmaintenance, and emergency functions.\nYou presented a scenario in which an employee is on-site and moves an extension cord to\nprevent slips, trips, or falls. You asked if this employee would be considered as performing a\n\"covered/unction,\" and thus, would be a \"covered employee\" subject to DOT D&A testing.\nWhile it is possible an employee performing an operations, maintenance, or emergency response\nfunction (i.e. covered function) on a pipellne or LNG facility may move an extension cord, the\nmere movement of an extension cord independent of an operations, maintenance, or emergency\nresponse function on a pipeline or LNG facility is not a \"covered function.\" Therefore, this\nemployee is not considered a \"covered employee \" and must not be DOT D&A tested.\nNotwithstanding the above, nothing in Part 199 prohibits an employer from D&A testing any of\nits employees using non-DOT procedures.\nlfwe can be of further assistance, please contact Tewabe Asebe at 202-366-5523.\nSincerely,\nDirector, Office of Standards\nand Rulemaking\nThe Pipeline and Hazardous Materials Safety Administration, Office of Pipeline Safety provides written clarifications of the Regulations\n(49 CFR Parts 190-199) in the form of interpretation letters. These letters reflect the agency's current application of the regulations to the\nspecific facts presented by the person requesting the clarification. Interpretations do not create legally-enforceable rights or obligations and\nare provided to help the public understand how to comply with the regulations.\n\n<<<PAGE 3>>>\n\nOctober 31, 2019\n4600 American Parkway\nSuite 300\nMadison, WI 53718, USA\nPhone: (980) 402-2595\nEmail: billy.stover@fleetworthy.com\nOctober 28, 2019\nOffice of Pipeline Safety\nPipeline and Hazardous Materials Safety Administration,\nAttn: PHP-30\nU.S. Department of Transportation, East Building\n1200 New Jersey Avenue, SE.\nWashington, DC 20590-0001\nPHMSA.pipelinesafety@dot.gov\nRequest for Interpretation\nDear Sir or Madam:\nRequesting clarification of the Hazardous Materials Regulations (HMR; 49 CFR Parts 199 and 40)\napplicability of the DOT drug testing regulations to the definition of “covered employee.\n”\nBackground\nUnderstanding a person is subject to the drug testing regulations under 49 CFR Parts 199 and 40 when\nthat person performs an operation, maintenance, or emergency-response function on a pipeline or LNG\nfacility, which is regulated by Part 192, 193, or 195. Primary regulation in Part 192 that concerns an\noperator’s response to a pipeline emergency is 49 CFR 192.615, “Emergency plans.” Under §\n192.615(a), an operator must have procedures for receiving notices of events that require immediate\nresponse by the operator.\nQuestion 1\nPipeline operators determine which categories of employees (including contractors) are subject to the\ndrug testing regulations. In the case when an employee is on-site and moves an extension cord to prevent\nslips, trips, or falls (either on the pipeline or not on the pipeline), would this employee be considered as\nperforming a covered function as described in 49 Part 192, an independent function for which procedures\nare required by 49 CFR 192.615(a), or it does not appear that the employee is performing covered\nfunctions? Since the work does not appear to satisfy Part 192, 193, or 195 operating, maintenance, or\nemergency-response requirements, the contractor employees would not be subject to drug testing.\nI respectfully request a written response to this inquiry at your earliest convenience.\nSincerely,\nBilly Stover\nBilly Stover\nDOT Regulatory Compliance Consultant\nFleetworthy Solutions","truncated":false,"body_characters":7157}