Interpretation Response #PI-22-0011
Below is the interpretation response detail and a list of regulations sections applicable to this response.
Interpretation Response Details
Christopher J. Chantry
International Union of Operating Engineers, Local No. 49
2829 Anthony Lane South
Minneapolis, MN 55418
Dear Mr. Chantry:
In your May 4, 2022, letter to the Pipeline and Hazardous Materials Safety Administration (PHMSA) you requested an interpretation of the federal pipeline safety regulations in 49 CFR Part 199 with respect to whether employees in the Gas Distribution Designer job classification at Minnesota Energy Resources Corporation (MERC) are in a safety-sensitive position that is subject to PHMSA/DOT random drug 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."1 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."2
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.3
We reviewed the Job Profile you submitted (Exhibit # 4) and did not identify any functions subjecting a MERC Gas Distribution Designer to any PHMSA/DOT drug and alcohol (D&A) testing. While the position does perform some maintenance functions that may be regulated by Part 192, 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.
In summation, our review of the Gas Distribution Designer Job Profile you provided did not identify the specific responsibilities necessary for this position to be subject to drug or alcohol 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