{"operation":"document","citation":"PI-22-0011","title":"International Union of Operating Engineers, Local No. 49 — Pipeline Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2022-07-07","effective_on":null,"summary":"PI-22-0011 response to International Union of Operating Engineers, Local No. 49 concerning 199.1.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-pi-22-0011.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-pi-22-0011.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-pi-22-0011","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/pipeline/interpretations/76606/iuoe-local-49-pi-22-0011-07-06-2022-part199-1.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nJuly 06, 2022\nChristopher J. Chantry\nGeneral Counsel\nInternational Union of Operating Engineers, Local No. 49\n2829 Anthony Lane South\nMinneapolis, MN 55418\nDear Mr. Chantry:\nIn your May 4, 2022, letter to the Pipeline and Hazardous Materials Safety Administration\n(PHMSA) you requested an interpretation of the federal pipeline safety regulations in 49 CFR\nPart 199 with respect to whether employees in the Gas Distribution Designer job classification\nat Minnesota Energy Resources Corporation (MERC) are in a safety-sensitive position that is\nsubject to PHMSA/DOT random drug testing.\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\npreamble that the drug testing regulations were limited to “those who perform regulated\noperation, maintenance, or emergency-response functions…on existing pipelines.” 2\nIn other words, from the onset of the drug testing regulations in 1988, PHMSA has specified that\nthe functions performed by employees subject to the regulations are operations, maintenance,\nand emergency-response functions subject to Parts 192, 193, and 195 that are performed on a\npipeline. Moreover, from the onset PHMSA specifically excluded the design function from\nDOT drug testing.\n3\nWe reviewed the Job Profile you submitted (Exhibit # 4) and did not identify any functions\nsubjecting a MERC Gas Distribution Designer to any PHMSA/DOT drug and alcohol (D&A)\ntesting. While the position does perform some maintenance functions that may be regulated by\nPart 192, the functions described are not performed on the pipeline, which is the discriminator\n1 53 FR 47084\n2 53 FR 47089\n3 53 FR 47088\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\nbetween maintenance functions that are D&A covered and maintenance functions that are not\nD&A covered.\nIn summation, our review of the Gas Distribution Designer Job Profile you provided did not\nidentify the specific responsibilities necessary for this position to be subject to drug or alcohol\ntesting under the PHMSA regulations in Part 199.\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 3>>>\n\nINTERNATIONAL UNION OF OPERATING ENGINEERS\nLoc,\\L No.\n1W, 1t9A,\n1t9B,\n1t9C, 1t9D,\n1t9E,\n1WL\nMl!-i:\\\"£S0TA • NORTH DAKOTA • SOtTH DAKOTA\nCi.A \\TO:\\' ].JOll:\\\"S0;'1;, Presidenl\nRY~'\\\" P. DAvlES, Vice Presidenl\nSTE\\1-: R. PIPER, Recording-Corresponding Secretary\nOSCAR]. SLETr£:\\\", Treasurer\nJASON A. GEORGE\nBusiness Manager/Financial Secretary\n2829 Anthony Lane South, Minneapolis, MN 55418-3285\nPhone (612) 788-9411 • Toll Free (866) 788-91, -11 • Fax (612) 788-1936\nMay 4, 2022\nJohn Gale\nOffice of Pipeline Safety (PHP-30)\nPipeline and Hazardous Materials Safety Administration\n1200 New Jersey Avenue, SE\nWashington, DC 20590-0001\nRE: Request for Interpretation of 49 CFR Part 199 and 49 CFR Part 40\nI. Introduction\nDear Mr. Gale:\nPursuant to 49 Code of Federal Regulations (\"CFR\") § 190.11 (b ), the International Union of\nOperating Engineers, Local No. 49 (\"Local 49\" or the \"Union\") is requesting a written regulatory\ninterpretation from the Pipeline and Hazardous Materials Safety Administration (\"PHMSA\")\nOffice of Pipeline Safety regarding:\n1) whether the job classification of \"Gas Distribution Designer\" is a safety sensitive position\ncovered under PHMSA guidelines under the U.S. Department of Transportation?\n2) whether the Gas Distribution Designer classification is subject to random drug tests as\noutlined by 49 CFR Part 199 and 49 CFR Part 40?\nII. Background Information\nLocal 49, a trade union, represents employees in the Gas Distribution Designer classification of\nMinnesota Energy Resource Corporation (\"MERC\" or the \"Company\") a Company that, according\nto its website, \"delivers natural gas to 243,000 customers in 179 communities across Minnesota.\"\nGas Distribution Designer employees work under a collective bargaining agreement (\"CBA\")\nnegotiated between the Union and the Company. See Exhibit 1. One of these Gas Distribution\nDesigner employees was informed that they needed to participate in a randomly selected drug test.\nThe result was a \"confirmed positive test\" and the employee was subsequently terminated from\ntheir employment for \"violation of the Company's Alcohol and Other Drug Use Policy\". See\nExhibit 2 and Exhibit 3.\nThe Gas Distribution Designer classification description (See Exhibit 4) states that the position\n\"[p ]rovide design/estimate for main infrastructure and larger gas service projects. Contribute to\nwork methods needed to complete the project and provide work direction to Contractor for\n\n<<<PAGE 4>>>\n\nconstruction methods according to Company standards.\" The description also provides the\nresponsibilities and essential functions of the classification description - please review Exhibit 4\nfor the entire list of responsibilities and essential functions.\nAdditionally, according to the terminated employee, their duties in the Gas Distribution Designer\nclassification included: Receiving pipe installation or replacement data from Techs/Construction\nCoordinators/Engineers and inputting that data into software to make maps, cost estimates and\nwork requests for contractors; pulling permits from cities/counties/state; initial environmental\nevaluation for environmental contractors; approving invoices; closing projects and making project\nfolders; and, taking contractor calls and questions. Additionally, all work was performed from an\noffice - no work was performed directly on the pipeline and the employee (and the Gas\nDistribution Designer classification as a whole) is not operator qualified - per 49 CFR Part 192,\nSubpart N - to touch the pipeline.\nIn subsequent information requests from the Union, the Company confirmed that the employee\nwas terminated for a violation of the Company's Alcohol and Other Drug Use Policy which the\nCompany claimed applied to the employee pursuant to 49 CFR Part 199 and 49 CFR Part 40. The\nCompany's justification for 49 CFR Part 199 and 49 CFR Part 40 applying to the employee was\nbased on the Company's claim that the Gas Distribution Designer classification is a safety sensitive\nposition performing covered functions and subject to drug/alcohol testing 49 CFR Part 199 and 49\nCFR Part 40. Specifically, the Company claimed that the Gas Distribution Designer classification\nperformed the following covered functions: \"Designing: a regulating station when the regulation\nstation is being replaced or redesigned to meet the maintenance requirements of 49 CFR 192. 739\"\nand, \"Designing: maps to be used in connection with compliance with a Part 192 regulation.\" See\nExhibit 5, Page 78. The employee claims that in their role as a Gas Distribution Designer they did\nnot have anything to do with designing regulation stations. The employee further claims that\ndesigning maps to be used in connection with compliance with a Part 192 regulation is not a\ncovered function and that the Company has incorrectly included this job duty as a covered function.\nThis is based on 49 CFR Part 192.3 which defines \"pipeline\" as \"all parts of those physical\nfacilities through which gas moves in transportation, including pipe, valves, and other\nappurtenance attached to pipe, compressor units, metering stations, regulator stations, delivery\nstations, holders, and fabricated assemblies.\"\nIII. Application of 49 CFR Part 199 and 49 CFR Part 40\nLocal 49's understanding of the relevant federal regulations is that an employee is subject to drug\ntesting under Part 199 and Part 40 when that person performs on a pipeline or LNG facility an\noperation, maintenance, or emergency response function regulated by 49 CFR Parts 192, 193 or\n195.\nBased on the information and data provided directly from the Company and from the terminated\nemployee, it is Local 49's belief that the Gas Distribution Designer classification is not a safety\nsensitive position and not subject to random drug tests as outlined by 49 CFR Part 199 and 49 CFR\nPart 40.\nIV. Conclusion\nIn closing, the Union asks again, based on the information and exhibits provided, is the Gas\nDistribution Designer classification a safety sensitive position that is subject to random\ndrug testing as outlined by 49 CFR Part 199 and 49 CFR Part 40 or any other applicable\nfederal regulation?\n\n<<<PAGE 5>>>\n\nDue to the termination of the employee and serious nature of the situation, Local 49 respectfully\nrequests that an interpretation be provided as soon as reasonably practicable.\nThank you for your consideration of this request. If you have any questions, please contact me at\n612-900-5651 or cjchantry@local49.org.\nInternational Union of Operating Engineers, Local No. 49\n2829 Anthony Lane South\nMinneapolis, MN 55418\nEnclosure: IUOE Local 49 Interpretation Request Exhibits 1-6","truncated":false,"body_characters":10511}