[Federal Register Volume 61, Number 138 (Wednesday, July 17, 1996)]
[Rules and Regulations]
[Pages 37222-37224]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18064]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary of Transportation
49 CFR Part 40
Federal Aviation Administration
14 CFR Part 121
Research and Special Programs Administration
49 CFR Part 199
Federal Railroad Administration
49 CFR Part 219
Federal Highway Administration
49 CFR Part 382
Federal Transit Administration
49 CFR Parts 653 and 654
[OST Docket No. OST-96-1533]
RIN 2105-AC33
Amendment to Definition of ``Substance Abuse Professional''
AGENCIES: Office of the Secretary, Federal Aviation Administration,
Research and Special Programs Administration, Federal Highway
Administration, Federal Railroad Administration, Federal Transit
Administration, DOT.
ACTION: Final rule.
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SUMMARY: Each of the Department's alcohol testing rules include a
definition of a substance abuse professional. By this action, the
Department is consolidating these definitions into its Department-wide
testing procedures rule and adding to the definition substance abuse
professionals certified by the International Certification Reciprocity
Consortium.
EFFECTIVE DATE: This rule is effective July 17, 1996.
FOR FURTHER INFORMATION CONTACT: Jim Swart, Program Analyst, Office of
Drug Enforcement and Program Compliance, Room 10317 (202-366-3784); or
Robert C. Ashby, Deputy Assistant General Counsel for Regulation and
Enforcement, Room 10424, (202-366-9306); 400 7th Street, SW.,
Washington, DC 20590.
SUPPLEMENTARY INFORMATION:
Background
The Omnibus Transportation Employees Testing Act of 1991 required
that an opportunity for treatment be made available to covered
employees. To implement this requirement in its alcohol and drug
testing rules issued in February 1994, the Department of Transportation
established the role of the ``substance abuse professional'' (SAP). The
DOT rules require an employer to advise a covered employee, who engages
in conduct prohibited under these rules, of the resources available for
evaluation and treatment of substance abuse problems, including the
names, addresses, and telephone numbers of SAPs and counseling and
treatment programs. The rules also provide for SAP evaluation to
identify the assistance needed by employees with substance abuse
problems. In many cases (e.g., the Federal Highway Administration and
Federal Transit Administration rules), this process and the role of the
SAP apply to drug testing as well as alcohol testing.
The primary safety objective of the DOT rules is to prevent,
through deterrence and detection, alcohol and controlled substance
users from performing transportation safety-sensitive functions. The
SAP is responsible for several duties important to the evaluation,
referral, and treatment of employees identified through breath and
urinalysis testing as being positive for alcohol and/or controlled
substance use, or who refuse to be tested, or who have violated other
provisions of the DOT rules.
The SAP's fundamental responsibility is to provide a comprehensive
face-to-face assessment and clinical evaluation to determine if the
employee needs assistance resolving problems associated with alcohol
use or prohibited drug use. If the employee is found to need assistance
as a result of this evaluation, the SAP recommends a course of
treatment with which the employee must demonstrate successful
compliance prior to returning to DOT safety-sensitive duty. Assistance
recommendations can include, but are not limited to: In-patient
treatment, partial in-patient treatment, out-patient treatment,
education programs, and aftercare. Upon the determination of the best
recommendation for assistance, the SAP will serve as a referral source
to assist the employee's entry into an acceptable treatment or
education program.
In general, the DOT rules prohibit a covered employee who has
engaged in conduct prohibited by the rules from performing any safety-
sensitive functions until meeting the conditions for returning to work,
which include a SAP evaluation, demonstration of successful compliance
with any required assistance program, and a successful return-to-duty
test result (below 0.02 for alcohol test and/or a negative drug test).
Therefore, the SAP follow-up evaluation is needed to determine if the
employee demonstrates successful compliance with the original treatment
recommendation. In addition, the SAP directs the employee's follow-up
testing program.
The DOT rules define the SAP to be a licensed physician (Medical
Doctor or Doctor of Osteopathy), a licensed or certified psychologist,
a licensed or certified social worker, or a licensed or certified
employee assistance professional. In addition, alcohol and drug abuse
counselors certified by the National Association of Alcoholism and Drug
Abuse Counselors (NAADAC) Certification Commission, a national
organization that imposes qualification standards for treatment of
alcohol and drug related disorders, are included in the SAP definition.
All must have knowledge of and clinical experience in the diagnosis and
treatment of substance abuse-related disorders (the degrees and
certificates alone do not confer this knowledge). The rules do not
authorize individuals to be SAPs who meet only state certification
criteria because qualifications vary greatly by state. In some states,
certified counselors do not have the experience or training deemed
[[Page 37223]]
necessary to implement the objectives of the rules. State-certified
addiction counselors could have, of course, taken the NAADAC competency
examination to receive certification.
The issue of who should be regarded as qualified to be a SAP was
one of the most commented-upon issues in the rulemaking leading to the
February 1994 rules (see 59 FR 7334-36; February 15, 1994). In the time
since these rules were issued, various parties have continued to
request that they be included within the definition of SAPs. In
evaluating how to respond to such requests, the Department has taken
the view that any expansion of the definition of SAPs should ensure
that the qualifications of persons playing this important role not be
diluted.
The International Certification Reciprocity Consortium (ICRC)/
Alcohol & Other Drug Abuse (Suite 213, 3725 National Drive, Raleigh,
North Carolina 27612), petitioned the DOT for inclusion of its
certified counselors in the SAP definition. Upon receipt of the
petition, the DOT began a thorough evaluation of the ICRC proposal,
including information from ICRC related to counselor eligibility
criteria, quality assurance procedures, codes of ethics, and
certification and testing parameters. We also reviewed ICRC information
on testing procedures, examination availability, and psychometrician
standards.
The results of our evaluation supported the conclusion that ICRC
has rigorous standards in place and that their counselors warrant
inclusion in the Department's SAP definition. Their program
requirements for professional counselors and their testing and
certification procedures (as well as test availability) are consistent
with those of other groups already defined as qualified for
participation. After careful review and evaluation of the ICRC
petition, supporting documentation, and testing methodology the DOT
proposed including ICRC certified counselors in its SAP definition.
ICRC-certified counselors must meet examination, experience, and other
standards comparable to NAADAC-certified counselors, who are included
in the existing SAP definition.
At the same time, the Department proposed consolidating SAP-related
matters into Part 40, its Department-wide procedural regulation. Under
the NPRM, the Department proposed to place the revised definition of
SAP--including ICRC-certified counselors--in part 40, while removing
the SAP definitions in each of the operating administration rules.
Comments and DOT Responses
Twenty-eight comments addressed the inclusion of ICRC-certified
counselors in the SAP definition. No one opposed the proposed
amendment. For the reasons noted above, the Department will include
ICRC counselors in the definition.
Three comments suggested that additional professions or
certifications be recognized in the SAP definition. Further additions
to the definition are beyond the scope of this rulemaking. However,
representatives of any group or profession seeking inclusion may
contact the individuals listed above in ``For Further Information
Contact'' to discuss the process for considering such requests.
One comment asked for further clarification of the operational role
of the SAP, with respect to such matters as referral for treatment, the
return to duty process, and follow-up testing. The Department has
issued guidance in these areas and, if needed, can issue additional
guidance in the future. In our view, further elaboration of the
regulatory text in these areas is not necessary.
One comment, from a trade association, suggested that the
definition of SAP remain in the regulation for the operating
administration that regulates its members, rather than being
consolidated in 49 CFR part 40. The rationale for this suggestion
appears to be that employers would prefer to find all relevant terms in
one rule--the operating administration rule--rather than needing to be
familiar with both the operating administration rule and part 40.
This rationale is unpersuasive. Part 40 already applies to all
employers covered by all the operating administration drug and alcohol
testing rules. Each operating administration rule already incorporates
by reference and applies Part 40 with respect to all tests conducted by
covered employers. Employers must already be familiar with and refer to
part 40 in order to conduct tests properly. Having a DOT-wide, common
definition of SAP in part 40 is no more remarkable or difficult for
employers to grasp than having the existing common definitions of
Medical Review Officer or Breath Alcohol Technician in part 40. The
ease of reference to common terms affecting the drug and alcohol
testing process found in a single place, particularly for the many
multi-modal employers covered by the Department's rules, is a
significant reason for adopting the proposed consolidation. Moreover,
it is much quicker to amend one rule than to amend six, an important
consideration when the SAP definition is potentially subject to
additional amendments if additional professions or certifications are
included. The Department is adopting the proposed consolidation.
Regulatory Process Matters
The final rule is considered to be a nonsignificant rulemaking
under DOT Regulatory Policies and Procedures, 44 FR 11034. It also is a
nonsignificant rule for purposes of Executive Order 12866. The
Department certifies, under the Regulatory Flexibility Act, that the
NPRM, if adopted, would not have a significant economic effect on a
substantial number of small entities. The NPRM would not impose any
costs or burdens on regulated entities, serving merely to broaden the
definition of service providers under the rule. The rule has also been
analyzed in accordance with the principles and criteria contained in
Executive Order 12612, and it has been determined that it does not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment.
The Department finds good cause to make this final rule effective
immediately. There are a substantial number of ICRC-certified
counselors who are ready and waiting to participate as SAPs in the DOT
drug and alcohol testing program, and there is no opposition to their
beginning to participate. The interest of the DOT program, the
counselors themselves, and the employers who will be able to make use
of them is served by making this rule change effective as soon as
possible. In addition, this rule can be viewed as relieving a
restriction on the participation of ICRC-counselors in the program.
Office of the Secretary
List of Subjects in 49 CFR Part 40
Drug testing, Alcohol testing, Reporting and recordkeeping
requirements, Safety, Transportation.
For the reasons set forth in the preamble, 49 CFR part 40 is
amended as follows:
PART 40--[AMENDED]
1. The authority citation for part 40 continues to read as follows:
Authority: 49 U.S.C. 102, 301, 322; 49 U.S.C. app. 1301nt., app.
1434nt., app. 2717, app. 1618a.
2. In Sec. 40.3, after the definition of ``specimen bottle,'' a
definition of ``substance abuse professional'' is added, to read as
follows:
[[Page 37224]]
Sec. 40.3 Definitions.
* * * * *
Substance abuse professional. A licensed physician (Medical Doctor
or Doctor of Osteopathy); or a licensed or certified psychologist,
social worker, or employee assistance professional; or an addiction
counselor (certified by the National Association of Alcoholism and Drug
Abuse Counselors Certification Commission or by the International
Certification Reciprocity Consortium/Alcohol & Other Drug Abuse). All
must have knowledge of and clinical experience in the diagnosis and
treatment of alcohol and controlled substances-related disorders.
Issued this 9th day of July, 1996, at Washington, DC.
Federico Pena,
Secretary of Transportation.
Federal Aviation Administration
List of Subjects in 14 CFR Part 121
Air carriers, Aircraft, Aircraft pilots, Airmen, Airplanes, Air
transportation, Aviation safety, Drug abuse, Drugs, Narcotics, Pilots,
Safety, Transportation.
For the reasons set out in the preamble, the Federal Aviation
Administration amends 14 CFR part 121, as follows:
PART 121--OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL
OPERATIONS
1. The authority citation for part 121 continues to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 40119, 44101, 44701-44702,
44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-44904,
44912, 46105.
Appendix I [Amended]
2. In Appendix I, Sec. II, the definition of ``Substance abuse
professional'' is removed.
Appendix J [Amended]
3. In Appendix J, Sec. I, subsection C, the definition of
``Substance abuse professional'' is removed.
Issued in Washington, DC on May 13, 1996.
David R. Hinson,
Administrator, Federal Aviation Administration.
Research and Special Programs Administration
List of Subjects in 49 CFR Part 199
Alcohol testing, Drug testing, Pipeline safety, Recordkeeping and
reporting.
For the reasons stated in the preamble, RSPA amends 49 CFR part 199
as follows:
PART 199--DRUG AND ALCOHOL TESTING
1. The authority for Part 199 continues to read as follows:
Authority: 49 U.S.C. 5103, 60102, 60103, 60104, and 60108; 49
CFR 1.53.
Sec. 199.205 [Amended]
2. In 49 CFR 199.205, the definition of ``Substance abuse
professional'' is removed.
Issued in Washington, DC on June 11, 1996.
D.K. Sharma,
Administrator, Research and Special Programs Administration.
Federal Railroad Administration
List of Subjects in 49 CFR Part 219
Alcohol and drug abuse, Railroad safety, Reporting and
recordkeeping requirements.
For the reasons stated in the preamble, FRA amends 49 CFR part 219,
as follows:
PART 219--CONTROL OF ALCOHOL AND DRUG USE
1. The authority for part 219 continues to read as follows:
Authority: 49 U.S.C. 20103, 20107, 20111, 20112, 20113, 20140,
21301, 21304; Pub. L. 103-272 (July 5, 1994); and 49 CFR 1.49(m).
Sec. 219.5 [Amended]
2. In Sec. 219.5, the definition of ``Substance abuse
professional'' is removed.
Issued in Washington, DC on July 9, 1996.
Donald M. Itzkoff,
Deputy Administrator, Federal Railroad Administration.
Federal Highway Administration
List of Subjects in 49 CFR Part 382
Alcohol and drug abuse, Highway safety, Reporting and recordkeeping
requirements.
For the reasons stated in the preamble, the FHWA amends 49 CFR part
382, as follows:
PART 382--CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING
1. The authority for part 382 continues to read as follows:
Authority: 49 U.S.C. 31133, 31136, 31301 et seq., 31502; and 49
CFR 1.48.
2. In Sec. 382.107, the definition of ``Substance abuse
professional'' is removed.
Issued in Washington, DC on July 9, 1996.
Rodney E. Slater,
Administrator, Federal Highway Administration.
Federal Transit Administration
List of Subjects
49 CFR Part 653
Drug testing, Grant programs--transportation, Mass transportation,
Reporting and recordkeeping requirements, Safety, Transportation.
49 CFR Part 654
Alcohol testing, Grant programs--transportation, Mass
transportation, Reporting and recordkeeping requirements, Safety,
Transportation.
For the reasons set out in the preamble, the Federal Transit
Administration amends 49 CFR parts 653 and 654, as follows:
PART 653--PREVENTION OF PROHIBITED DRUG USE IN TRANSIT OPERATIONS
1. The authority for part 653 continues to read as follows:
Authority: 49 U.S.C. 5331; 49 CFR 1.51.
Sec. 653.7 [Amended]
2. In Sec. 653.7, the definition of ``Substance abuse
professional'' is removed.
PART 654--PREVENTION OF ALCOHOL MISUSE IN TRANSIT OPERATIONS
1. The authority for part 654 continues to read as follows:
Authority: 49 U.S.C. 5331; 49 CFR 1.51.
Sec. 654.7 [Amended]
2. In Sec. 654.7, the definition of ``Substance abuse
professional'' is removed.
Issued in Washington, DC on July 9, 1996.
Gordon J. Linton,
Administrator, Federal Transit Administration.
[FR Doc. 96-18064 Filed 7-16-96; 8:45 am]
BILLING CODE 4910-62-P
