Interpretation Response #PI-22-0004
Below is the interpretation response detail and a list of regulations sections applicable to this response.
Interpretation Response Details
Joel L. Greene
Andrea I. Sarmentero Garzón
Jennings, Strouss & Salmon, PLC
1300 I Street, Suite 1120
Washington, D.C. 20005-3314
Dear Mr. Greene & Ms. Sarmentero Garzón:
In your February 1, 2022, letter to the Pipeline and Hazardous Materials Safety Administration (PHMSA) you requested on behalf of Philadelphia Gas Works (PGW) an interpretation of the Federal pipeline safety regulations in 49 CFR Part 199 with respect to whether employees in the Planning Utility Drafter I (PUD I) position at PGW are subject to PHMSA/DOT drug and alcohol (D&A) testing.
PHMSA promulgated the first drug testing regulations in 1988 wherein PHMSA required pipeline operators to have an "anti-drug program for employees who perform certain sensitive safety-related functions covered by the pipeline safety regulations." While the original drug testing rule did not define covered employee or covered function, it was explained in the preamble that the drug testing regulations were limited to "those who perform regulated operation, maintenance, or emergency-response functions...on existing pipelines." In other words, from the onset of the drug testing regulations in 1988, PHMSA has specified that the functions performed by employees subject to the regulations are operations, maintenance, and emergency-response functions subject to Parts 192, 193, and 195 that are performed on a pipeline. Moreover, from the onset PHMSA specifically excluded the design function from DOT drug testing and drafters are generally involved in design.
We reviewed the PUD I position description you submitted and did not identify any functions subjecting a PGW PUD I to PHMSA/DOT D&A testing. While the position does perform some maintenance functions, the functions described are not performed on the pipeline, which is the discriminator between maintenance functions that are D&A covered and maintenance functions that are not D&A covered. Additionally, while the PUD I position description mentions "potential emergency situations," it does not list any specific emergency-response functions regulated by Part 192 that are performed on a pipeline. As with operations and maintenance, only those emergency-response functions performed on the pipeline are D&A covered functions, regardless of whether the functions are listed in § 192.615.
We noted, however, that you added comments regarding PGW's Winter Emergency Plan in your letter explaining that the PUD I position is a source of personnel for the plan, but the duties stated in that plan are not included in the PUD I position description PGW provided. Nonetheless, you explain that with regards to the Winter Emergency Plan, "PHMSA has clarified that persons who do a covered function even if infrequently or who have a potential to do a covered function are subject to Part 199 drug testing."
To support that statement, you referenced a guidance document published by PHMSA's predecessor agency the Research and Special Programs Administration (RSPA) in March 1994. We must point out that the definition of "covered function" did not appear in the drug testing subpart of Part 199 until March 1998, four years after the guidance document you referenced. Furthermore, the current definition of “covered function” and the only definition of "performs a covered function" did not appear in Part 199 until Amendment 199 19 (effective September 11, 2001), which was seven years after the RSPA guidance document. That RSPA guidance is no longer available on PHMSA's D&A website or through any other PHMSA source.
To clarify, Part 199 defines "performs a covered function" to include actually performing, ready to perform, or immediately available to perform a covered function. While PHMSA has not published guidance on the meaning of "ready to perform, or immediately available to perform" these terms are included in the definition to dispel the notion that an employee has to be actually performing a covered function to be a covered employee. For example, some operators believed that a welder on a coffee break or off-duty was not a covered employee because he/she was not actually welding at those times. The definitions of "performs a covered function" in § 199.3 clarifies that the welder need not necessarily be welding at all times to be a covered employee.
In summation, our review of the PUD I position description provided by PGW did not identify the specific responsibilities necessary for this position to be subject to D&A testing under the PHMSA regulations in Part 199.
Notwithstanding the above, nothing in Part 199 prohibits an employer from D&A testing any of its employees using non-DOT procedures, including those employees already subject to D&A testing under PHMSA regulations. If we can be of further assistance, please contact Tewabe Asebe at 202-366-5523.
John A. Gale
Director, Office of Standards