§ 262.3 - Definitions.

As used in this Part:

(b) Administrator means the Administrator of the [Research and Special Programs Administration (RSPA)]Pipeline and Hazardous Materials Safety Administration (PHMSA) of the Federal Department of Transportation (DOT), or his or her delegate.

(m) Prohibited drug means any of the [following substances specified in Schedule I or Schedule II of the Controlled Substances Act 21 U.S.C. 801.812 (1981 & 1987) Cum. P.P.): marijuana, cocaine, opiates, amphetamines, and phencyclidine (PCP)] substances specified in 49 CFR part 40.

(o) [RSPA]PHMSA means the [Research and Special Programs]Pipeline and Hazardous Materials Safety Administration of the Federal Department of Transportation.

§ 262.105 - Drug tests required

(b) Post-accident testing. As soon as possible but no later than 32 hours after an accident, an operator [shall] must drug test each surviving covered employee whose performance of a covered function either contributed to the accident or cannot be completely discounted as a contributing factor to the accident. An operator may decide not to test under this paragraph but such a decision must be based on [the best] specific information [available immediately after the accident] that the covered employee's performance [could have not contributed to the accident or that, because of the time between that performance and the accident, it is not likely that a drug test would reveal whether the performance was affected by drug use.] had no role in the cause(s) or severity of the accident. If a test required by this section is not administered within the 32 hours following the accident, the operator must prepare and maintain its decision stating the reasons why the test was not promptly administered. If a test required by paragraph (b) of this section is not administered within 32 hours following the accident, the operator must cease attempts to administer a drug test and must state in the record the reasons for not administering the test.

§ 262.117 – Recordkeeping

(a)

(5) Records of decisions not to administer post-accident employee drug tests must be kept for at least 3 years.

§ 262.119 Reporting of anti-drug testing results

(a) Each large operator (having more than 50 covered employees) [shall] must submit an annual MIS report to RSPA of its anti-drug testing using the management information system (MIS) form and instructions as required by 49 CFR part 40 (at section 40.25 and appendix H to part 40), not later than March 15th of each year for the prior calendar year (January 1st through December 31st). The administrator [shall] may require by [written] notice in the PHMSA Portal (https://portal.phmsa.dot.gov/phmsaportallanding) that small operators (50 or fewer covered employees), not otherwise required to submit annual MIS reports, to prepare and submit such reports to [RSPA]PHMSA.

(b) Each report required under this section [shall] must be submitted [to the Office of Pipeline Safety, Research and Special Programs Administration, U.S. Department of Transportation, Room 7128, 400 Seventh Street, SW, Washington, DC 20590.] electronically at http://damis.dot.gov. An operator may obtain the user name and password needed for electronic reporting from the PHMSA Portal (https://portal.phmsa.dot.gov/phmsaportallanding). If electronic reporting imposes an undue burden and hardship, the operator may submit a written request for an alternative reporting method to the Information Resources Manager, Office of Pipeline Safety, Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590. The request must describe the undue burden and hardship. PHMSA will review the request and may authorize, in writing, an alternative reporting method. An authorization will state the period for which it is valid, which may be indefinite. An operator must contact PHMSA at 202-366-8075, or electronically to [email protected] to make arrangements for submitting a report that is due after a request for alternative reporting is submitted but before an authorization or denial is received.

§ 262.225 Alcohol tests required

(a) Post-accident

(1) As soon as practicable following an accident, each operator [shall] must test each surviving covered employee for alcohol if that employee' s performance of a covered function either contributed to the accident or cannot be completely discounted as a contributing factor to the accident. The decision not to administer a test under this section [shall] must be based [on the operator's determination, using the best available] specific information [at the time of the determination], that the covered employee's performance [could not have contributed to] had no role in the cause(s) or severity of the accident.

(b)

(4)

(i) If a test required by this section is not administered within two hours following the determination under paragraph (2) of this subdivision, the operator shall prepare and maintain on file a record stating the reasons the test was not promptly administered. If a test required by this section is not administered within eight hours following the determination under paragraph (2) of this subdivision, the operator shall cease attempts to administer an alcohol test and shall state in the record the reasons for not administering the test. Records shall be submitted to [RSPA]PHMSA upon request of the administrator.;

§ 262.227 Retention of records

(b)

(4) Three years. Records of decisions not to administer post- accident employee alcohol tests must be kept for a minimum of three years.

§ 262.229 Reporting of alcohol testing results

(a) Each large operator (having more than 50 covered employees) [shall] must submit an annual MIS report to RSPA of its alcohol testing results using the management information system (MIS) form and instructions as required by 49 CFR part 40 (at section 40.25 and appendix H to part 40), by March 15th of each year for the previous calendar year (January 1st though December 31st). The administrator may require by [written] notice in the PHMSA Portal (https://portal.phmsa.dot.gov/phmsaportallanding) that a small operator (50 or fewer covered employees), not otherwise required to submit annual MIS reports, submit such a report to [RSPA]PHMSA.

(c) Each report required under this section, [shall] must be submitted [to the Office of Pipeline Safety (OPS), Research and Special Program Administration, Department of Transportation, Room 7128, 400 Seventh Street SW, Washington, DC 20590.] electronically at http://damis.dot.gov. An operator may obtain the user name and password needed for electronic reporting from the PHMSA Portal (https://portal.phmsa.dot.gov/phmsaportallanding). If electronic reporting imposes an undue burden and hardship, the operator may submit a written request for an alternative reporting method to the Information Resources Manager, Office of Pipeline Safety, Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590. The request must describe the undue burden and hardship. PHMSA will review the request and may authorize, in writing, an alternative reporting method. An authorization will state the period for which it is valid, which may be indefinite. An operator must contact PHMSA at 202-366-8075, or electronically to [email protected] to make arrangements for submitting a report that is due after a request for alternative reporting is submitted but before an authorization or denial is received. [RSPA]PHMSA will allow the operator the option of sending the report on the computer disk provided by [RSPA]PHMSA. If this option is used, a signature page attesting to the validity of the information on the computer disk must be sent to the address in this section.

This rulemaking is being proposed to bring sections of Title 16 NYCRR related to pipeline safety into conformance with the minimum Federal regulations related to pipeline safety adopted in January 23, 2017. The proposed changes to Title 16 NYCRR, Part 262, Drug and Alcohol Testing are intended to bring this part into conformance with recent amendments to 49 CFR Part 199. The Commission proposes to update references to published engineering standards incorporated by reference, as required by the federal regulations, due to recent revisions to those standards. Consequently, no person is likely to object to the adoption of the rule as written.

The Department of Public Service projects that there will be no adverse impact on jobs or employment opportunities in the State of New York (State) because of this proposed rule change. This proposed rule change is intended to bring Title 16 NYCRR Chapter III, Subchapter C, Part 262, Drug and Alcohol Testing, into conformance with recent amendments to Title 49, Code of Federal Regulations, Part 199, Drug and Alcohol Testing. Nothing in this proposed rule change will create any adverse impacts on jobs or employment opportunities in the State. No further steps were needed to ascertain these facts, and none were taken. As apparent from the nature and purpose of this proposed rule change, a full Job Impact Statement is not required and therefore one has not been prepared.

(19-G-01815P1)