{"operation":"document","citation":"PI-22-0001","title":"I.B.E.W. Local Union 503 — Pipeline Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2022-03-03","effective_on":null,"summary":"PI-22-0001 response to I.B.E.W. Local Union 503 concerning 192.615.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-pi-22-0001.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-pi-22-0001.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-pi-22-0001","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/pipeline/interpretations/76396/ibew-local-union-503-pi-22-0001-03-07-2022-part192615.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nMarch 03, 2022\nMs. Melissa Kurtz\nBusiness Representative\nI.B.E.W. Local Union 503\n2657 Route 17M\nGoshen, NY 10924\nDear Ms. Kurtz:\nIn your December 7, 2021, letter to the Pipeline and Hazardous Materials Safety Administration\n(PHMSA) you requested an interpretation of the federal pipeline safety regulations in 49 CFR\n§ 192.615 with respect to customer service representatives (CSRs) working for Orange and\nRockland Utilities, a subsidiary of Con Edison. Essentially, you asked if these CSRs are\nPHMSA drug and alcohol (D&A) “covered employees” subject to the Department of\nTransportation (DOT) drug testing.\nWhile 49 CFR Part 199 refers to Parts 192, 193, and 195 and knowledge of those federal pipeline\nsafety regulations is essential to meet the D&A testing regulations in Part 199, the D&A\nregulations requiring interpretation are found in 49 CFR Part 199, not § 192.615. Specifically, in\n§ 199.3, PHMSA defines a D&A “covered employee” and “covered function.”\nPHMSA promulgated the first drug testing regulations in 1988 wherein PHMSA required\npipeline operators to have an “anti-drug program for employees who perform certain sensitive\nsafety-related functions covered by the pipeline safety regulations.”1 While the original drug\ntesting rule did not define covered employee or covered function, it was explained in the rule\npreamble that the drug testing regulations were limited to “those who perform regulated\noperation, maintenance, or emergency-response functions…on existing pipelines.” 2\nPHMSA added the definitions of “covered employee” and “covered function” to Part 199 with\nAmendment 199-15 on March 17, 1998. In that amendment, PHMSA defined “covered\nfunction” to mean “an operations, maintenance, or emergency-response function conducted on\nthe pipeline or LNG facility that is regulated by Part 192, 193, or 195.”3 PHMSA changed the\ndefinition of “covered function” to the current version with Amendment 199-19 on September\n11, 2001. Covered function now means “an operations, maintenance, or emergency-response\n1 53 FR 47084.\n2 53 FR 47089.\n3 63 FR 12998, 13000 (emphasis added).\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 of the regulations to the specific facts\npresented by the person requesting the clarification. Interpretations are not generally applicable, do not create legally-enforceable rights or\nobligations, and are provided to help the specific requestor understand how to comply with the regulations.\n\n<<<PAGE 2>>>\n\n2\nfunction regulated by [P]art 192, 193, or 195 of this chapter that is performed on a pipeline or on\nan LNG facility.”4\nFrom the onset of the drug testing regulations in 1988, PHMSA has specified that the functions\nperformed by employees subject to the regulations are operations, maintenance, and emergency-\nresponse functions performed on a pipeline.\nYour question relates to a natural gas pipeline facility regulated under Part 192, in which § 192.3\ndefines a “pipeline” to mean “all parts of those physical facilities through which gas moves in\ntransportation, including pipe, valves, and other appurtenance attached to pipe, compressor units,\nmetering stations, regulator stations, delivery stations, holders, and fabricated assemblies.” You\nalso reference § 192.615, which, among other things, requires operators to establish written\nprocedures and perform other actions to minimize the hazard resulting from a gas pipeline\nemergency.\nThe D&A testing regulations do not necessarily cover all emergency-response functions listed in\n§ 192.615. Only those functions in § 192.615 that are performed on a pipeline are “covered\nfunctions.” So, while “receiving, identifying, and classifying notices of events which require\nimmediate response by the operator” [§ 192.615(a)(2)] is a required emergency-response\nfunction, it is not performed on a pipeline and is therefore not a D&A covered function.\nHowever, the “emergency shutdown and pressure reduction in any section of the operator's\npipeline system necessary to minimize hazards to life or property” [§ 192.615(a)(6)] is a D&A\ncovered function because it is performed on a pipeline.\nIn your letter, you referenced PHMSA interpretation PI-20-0007 (April 24, 2020), which cited to\nan earlier interpretation (PL-90-003 dated February 13, 1990) that stated service clerks\nresponsible for performing the following three things are “covered employees” subject to D&A\ntesting:\n1. receiving telephone notices of gas leaks,\n2. identifying those notices that require immediate response by the company; and\n3. dispatching personnel to the scene.\nPHMSA listed those three steps because the accomplishment of all three steps is necessary to\nmeet the requirement that the emergency response function is being performed on a pipeline. In\nthe absence of step three, the emergency response of the CSRs is not performed on a pipeline.\nYou also explain in your letter that the CSRs working for Orange and Rockland Utilities receive\ntelephone notices of gas leaks and identify those notices that require immediate response by the\ncompany, but they do not dispatch personnel to the scene. Instead they send gas emergency calls\nto the operator’s gas emergency response center (GERC), the hub for all gas leak dispatching.\nWithout reviewing the operator’s CSR processes, and based only on the information you\nprovided in your letter, the “dispatching of personnel to the scene” function (item # 3 above) is\nnot performed by the CSRs but by the operator’s GERC. If that is correct, then the CSRs are not\n4 66 FR 47114, 47118 (emphasis added).\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 of the regulations to the specific facts\npresented by the person requesting the clarification. Interpretations are not generally applicable, do not create legally-enforceable rights or\nobligations, and are provided to help the specific requestor understand how to comply with the regulations.\n\n<<<PAGE 3>>>\n\n3\nperforming an emergency response on the pipeline and, therefore, are not “covered employees”\nsubject to PHMSA drug testing.\nNotwithstanding the above, nothing in Part 199 prohibits an employer from D&A testing any of\nits employees using non-DOT procedures, including those employees already subject to D&A\ntesting under PHMSA regulations.\nIf we can be of further assistance, please contact Tewabe Asebe at 202-366-5523.\nSincerely,\nJohn A. Gale\nDirector, Office of Standards\nand Rulemaking\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 of the regulations to the specific facts\npresented by the person requesting the clarification. Interpretations are not generally applicable, do not create legally-enforceable rights or\nobligations, and are provided to help the specific requestor understand how to comply with the regulations.\n\n<<<PAGE 4>>>\n\nI.B.E.W.\nL □ CAL UNl □ N S03\n2657 ROUTE 17M\nGOSHEN, NY1O924\nDecember 7, 2021\nPHONE (845) 294.1337\nFAX (845) 294.9754\nEMAIL: IBEW5O3@1BEW5O3.COM\nOffice of Pipeline Safety (PHP-30)\nPHM SA, U.S. Department of Transportation\n1200 New Jersey Avenue SE.\nW ashington, DC 20590-0001\nGood afternoon,\nM y name is M elissa Kurtz and I am the Business Representative for I.B.E.W. Local 503 located in Goshen NY. M y Local represents\nmany of the workers at Orange and Rocklan. d Utilities which is a subsidiary of Con Edison.\nM any of the M embers that work in the Customer Service Department.have come to us with a concern that they are falsely being\ndeemed \"covered employees\" for D &A testing.and should not be tested for marijuana.\nI am writing you today to request that PHM SA perform an interpretation of the. federal pipeline safety regulations in 49 CFR 192.615\nwith respect to the Customer Service Representatives (CSRs) working for Orange and Rockland Utilities. In interpretation response\n#Pl-20-0007, you state, \"Under 49 CFR 192. 615, any person who performs on a gas pipeline a regulated operating, maintenance, or\nemergency response function is subject to POT mandated drug testing.\" This office also lists three tasks associated with being a\n\"covered employee\" subject to D &A testing:\n1. 2. 3. Receiving telephone notices of gas leaks. The C SRs at O range and R ockland Utilities do perform this task. They\nroutinely answer-both electric·ancl gas emergency ca!ls, as well as other billing inquiries.\nIdentifying those notices that require immediate response by the Company. Through the use of a Company developed\nline of que$tidning the CSRs are trained to send the g as emergency calls to the G ERC.\nDispatching personnel to the sceAe. This task is NEVER performed by our C SRs. Orange and Rockland has an\nestablished GERC (Gas Emergency R esponse Center) which is the hub for all gas leak dispatching, ti'l'!e\nreporting and . leak tracking,:At no tim e does a C SR dispatch any gas response personnel to any leak or location.\nLocal 503 believes that due to the fact that the CSRs at Orange and Rockland Utilities do NOT perform all three functions making them\n\"covered employees\", that they ate wrongfully being. tested for marijuana using DOt procedures. This Local is not disputing that the\nCompany has the right to drug and alcohol testing, we simply do not believe that the CSRs fijll into the DOT testing pool.\n• r' : •\nIf any further information is needed, please feel free to contact me at (845) 294-1337. I look ft :>rw a ;d · t~ an interpretation response from\nPHM SA regarding this issue. -· ' · · ·\nM elissa Kurtz\nBusiness Representative\nI.B.E.W Local Union 503","truncated":false,"body_characters":10184}