E9-27525. Michael R. Bennett and Workplace Compliance; Final Public Interest Exclusion Order

AGENCY:

Office of the Secretary, DOT.

ACTION:

Notice.

SUMMARY:

The Department of Transportation (DOT) issued a decision and order under the Procedures for Transportation Workplace Drug and Alcohol Testing Programs excluding a service agent, Michael R. Bennett, Workplace Compliance, Inc. in North Carolina, Texas, and all other places it is incorporated, franchised, or otherwise doing business, and all other individuals who are officers, employees, directors, shareholders, partners, or other individuals associated with Workplace Compliance, Inc., from providing drug and alcohol testing services in any capacity to any DOT-regulated employer for a period of 5 years. Mr. Bennett and his company provided Medical Review Officer services to DOT-regulated employers directly and through other service agents when Mr. Bennett was not qualified to act as a Medical Review Officer.

DATES:

The effective date of the Public Interest Exclusion was July 31, 2009 and it will remain in effect until July 31, 2014.

FOR FURTHER INFORMATION CONTACT:

Patrice M. Kelly, Deputy Director, U.S. Department of Transportation, Office of Drug and Alcohol Policy and Compliance, 1200 New Jersey Avenue, SE., Washington, DC 20590; [phone] (voice), [phone] (fax), or [e-mail].

SUPPLEMENTARY INFORMATION:

Background

In accordance with the provisions of the Department's regulation at 49 CFR part 40 (Part 40), subpart R, Public Interest Exclusions (PIE), the Federal Aviation Administration (FAA) issued a Notice of Corrective Action to Mr. Bennett on March 6, 2009, and then issued a Notice of Proposed Exclusion on May 5, 2009. Through an investigation, the FAA found that Mr. Bennett violated Part 40 because he had performed all roles and responsibilities of a Medical Review Officer (MRO) under Part 40, even though he was not a licensed physician (a Doctor of Medicine or Osteopathy), and therefore not qualified to act as an MRO. Mr. Bennett and his company used a medical doctor's name on thousands of negative test results and hundreds of non-negative test results in order to verify these DOT-regulated drug test results. He communicated those results to employers and/or other service agents for communication to other DOT-regulated employers.

The FAA referred the matter to the Department for a PIE proceeding under the provisions of Subpart R of Part 40. Mr. Bennett did not contest the FAA's allegations.

Public Interest Exclusion Decision and Order

On July 31, 2009, the Department issued a PIE against Michael R. Bennett, Workplace Compliance, Inc. in North Carolina, Texas, and all other places it is incorporated, franchised, or otherwise doing business, and all other individuals who are officers, employees, directors, shareholders, partners, or other individuals associated with Workplace Compliance, Inc., (“Michael R. Bennett, et al.”) from providing drug and alcohol testing services in any capacity to any DOT-regulated employer for a period of 5 years. A full copy of the Department's Decision and Order can be found at http://www.dot.gov/​ost/​dapc/​.

In accordance with the terms of the Department's Decision and Order and per 49 CFR 40.403(a), Michael R. Bennett, et al., were required to directly notify each of the affected DOT-regulated employer clients in writing about the issuance, scope, duration, and effect of the PIE. The Department has notified employers and the public about this PIE by publishing a “List of Excluded Drug and Alcohol Service Agents” on its Web site at http://www.dot.gov/​ost/​dapc/​ and will make the list available upon request. As required by 49 CFR 40.401(d), the Department is publishing this Federal Register notice to inform the public that Michael R. Bennett, et al., are subject to a PIE for 5 years. After July 31, 2014, Michael R. Bennett, et al., will be removed from the list and the public will be notified of that removal, also in accordance with 49 CFR 40.401(d).

Any DOT-regulated employer who uses the services of Michael R. Bennett, et al., between July 31, 2009 and July 31, 2014 may be subject to a civil penalty for violation of Part 40.

Dated this 10th day of November, 2009, at Washington, DC.

Patrice M. Kelly,

Deputy Director, Office of Drug and Alcohol Policy Compliance.