[Federal Register: August 23, 2006 (Volume 71, Number 163)]
[Rules and Regulations]
[Page 49382-49384]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23au06-23]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Part 40
[Docket OST-2006-24112]
RIN 2105-AD57
Procedures for Transportation Workplace Drug and Alcohol Testing
Programs: Revision of Substance Abuse Professional Credential
Requirement; Technical Amendments
AGENCY: Office of the Secretary, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Transportation is adding state-licensed or
certified marriage and family therapists to the list of credentialed
professionals eligible to serve as substance abuse professionals under
subpart O of 49 CFR part 40. The Department is also making a series of
technical amendments to its drug and alcohol testing procedural rule.
The purpose of the technical amendments is to clarify certain
provisions of the rule as well as address omissions and typographical
errors which have been called to our attention since the publication of
the final rule in December 2000.
DATES: This rule is effective September 22, 2006.
FOR FURTHER INFORMATION CONTACT: Bohdan Baczara, Office of Drug and
Alcohol Policy and Compliance, 400 Seventh Street, SW., Washington, DC
20590; 202-366-3784 (voice), 202-366-3897 (fax), or
bohdan.baczara@dot.gov (e-mail).
SUPPLEMENTARY INFORMATION:
Background and Purpose
The Omnibus Transportation Employee Testing Act of 1991 required
that an opportunity for treatment be made available to employees
required by the regulations to undergo workplace drug and alcohol
testing (i.e., covered employees). To implement this requirement in its
alcohol and drug testing rules issued in February 1994, the Department
of Transportation (DOT) established the role of the ``substance abuse
professional'' (SAP). The Department's regulation, 49 CFR part 40,
requires an employer to provide a covered employee, who engages in
conduct prohibited by DOT agency drug and alcohol regulations, a
listing of qualified SAPs. In addition, the regulation requires the
employee to be evaluated by a SAP and to demonstrate successful
compliance with the SAP's evaluation recommendations for education and/
or treatment prior to being considered for returning to any DOT safety-
sensitive position.
The Department considers the SAP to be the ``Gatekeeper'' of safety
for the return-to-duty process. The SAP represents the major decision
point an employer may have in choosing whether to return an employee to
safety-sensitive duties following a DOT regulation violation. The SAP
is responsible for several duties important to the evaluation, referral
and treatment of employees who have engaged in prohibited drug and
alcohol related conduct. The job a SAP accomplishes provides vital help
to the employee, the employer and to the traveling public. To be
permitted to act as a SAP in the DOT drug and alcohol testing program,
a SAP must meet basic knowledge, training and examination and
continuing education requirements. In addition, a person must have one
of the following credentials:
(1) Licensed physician;
(2) Licensed or certified social worker;
(3) Licensed or certified psychologist;
(4) Licensed or certified employee assistance professional; or
(5) Drug and alcohol counselor certified by the National
Association of Drug Abuse Counselors Certification Commission (NAADAC);
or by the International Certification Reciprocity Consortium/Alcohol
and Other Drug Abuse (ICRC); or by the National Board for Certified
Counselors, Inc. and Affiliates/Master Addiction Counselor (NBCC).
On August 10, 2005, President Bush signed the Safe, Accountable,
Flexible, and Efficient Transportation Equity Act: A Legacy for Users
(SAFETEA-LU) [PL 109-59]. That law required, among many things, that
the Secretary conduct a rulemaking that would make state-certified or
licensed marriage and family therapists (MFTs) eligible to become SAPs.
The Department has been in discussions with the American Association of
Marriage and Family Therapists (AAMFT) and notes the significant
strides MFTs have made in obtaining state licensure or certification
recognition, as well as, their significant education requirements.
Based on the SAFETEA-LU Legislation and discussions with the AAMFT, the
Department issued a notice of proposed rulemaking (NPRM) on March 10,
2006 [71 FR 12331], asking for comments and suggestions for adding
state-licensed and certified MFTs as a credential eligible for becoming
a SAP.
Over the years, the Department met several times with the AAMFT but
had not considered MFTs to be an acceptable professional credential for
SAPs for one reason--MFTs were not licensed or certified to practice in
all 50 States. Currently, except Montana and West Virginia, all states
provide licensure or certification for MFTs. Because of the SAFETEA-LU
legislation, the Department proposed in the NPRM not to wait until MFTs
are licensed or certified to practice in all 50 states as we have for
other professions (i.e., physicians, social workers, and
psychologists). Therefore, MFTs in states that provide them licensure
or certification will become eligible. As soon as Montana and West
Virginia offer licensure or certification, MFTs in those states will
also become eligible to become SAPs.
There were 14 commentors to the NPRM, which included individuals,
labor organizations, third-party administrators and associations. This
final rule responds to their comments.
In addition, this rule makes technical amendments to clarify a
certain provision of the rule and addresses typographical errors and
omissions which have been called to our attention since the publication
of the Department's final rule in 2000. There was no NPRM with respect
to these amendments.
Discussion of Significant Comments to the Docket
Comment: Five commenters supported the Department's decision to
include being a state-licensed or certified MFT as an acceptable
credential to become a SAP, citing the general need for more SAPs. One
commenter, however, found it unfair that the licensed or certified MFTs
were not required to meet the licensing requirements for all 50 States
before being included in the list of acceptable credentials. This
commenter suggested that the DOT maintain a consistent standard for all
licensing boards and not take shortcuts.
DOT Response: Because of the legislative requirement to conduct
this rulemaking, the expectation that MFTs will meet the licensing
requirements for all 50 States in the near future, and the value of
including another profession
[[Page 49383]]
eligible to become SAPs, the Department believes there is no need to
delay including state-licensed or certified MFTs to the list of
credentials available to become SAPs. With the appropriate knowledge,
training and qualifications, these therapists have the potential--as do
all credentialed groups--to increase the number of qualified SAPs
available to the transportation industry.
Comment: Five commenters were opposed to adding MFTs to the list of
eligible credentials to act as SAPs because they believed MFTs did not
have the necessary qualifications to diagnose substance-related
disorders. Two commenters agreed with the NPRM but only if MFTs met a
requirement for education or expertise in substance abuse issues--
competencies which the commenters believe MFTs lacked.
DOT Response: Current regulations require those with the
appropriate credentials to be SAPs to have knowledge about and clinical
experience in the diagnosis and treatment of alcohol and controlled
substances-related disorders before they can become qualified to act as
SAPs. Degrees and certificates alone do not confer this knowledge. This
is why the Department had made it a requirement in its regulation,
specifically 40.281(b)(1), that an individual must meet this
requirement regardless of his or her credential before becoming a SAP.
This has been a longstanding requirement of part 40 [FR 61 37222, July
17, 1996], and an essential component of the SAP qualifications that
should not be taken lightly.
Discussion of Technical Amendments
Nomenclature Change
To reflect the February 2005 reorganization of the Research and
Special Programs Administration (RSPA), the DOT Agency name will be
changed from RSPA to Pipeline and Hazardous Materials Safety
Administration (PHMSA). The change will be made throughout part 40,
including the MIS Data Collection Form and its accompanying instruction
sheet.
Section 40.23 What actions do employers take after receiving verified
results?
The Department is amending paragraph (c) of this section to correct
the typographical error of ``.39'' printed in the final rule of
December 2000 to read ``.039.''
Section 40.73 How is the collection process completed?
While completing the CCF, the collector is to complete Step 4 and
not Step 5 as indicated in paragraph (a)(2) of this section. The change
will correct this typographical error.
Section 40.83 How do laboratories process incoming specimens?
Paragraphs (b)(2) and (4) of this section, which deal with re-
designating the primary and split specimens, should refer the reader to
paragraph (h) of this section and not (g). The changes will correct
these typographical errors.
Section 40.191 What is a refusal to take a DOT drug test, and what are
the consequences?
When a MRO is looking to establish whether there is clinical
evidence of unauthorized use of opiates, section 40.139 states that the
MRO may require a face-to-face examination of the employee as part of
the verification process for opiates. In a pre-employment testing
situation, if the employee fails to undergo the examination and there
was a contingent offer of employment, the employee is deemed to have
refused to test (see 40.191(a)(7)). If no contingent offer of
employment was made and the employee refused to undergo the
examination, the MRO cannot verify the test as a refusal. Therefore
under the current regulation, in a pre-employment situation where a MRO
cannot verify the test as a positive or a refusal, the MRO is left with
one choice--to call it negative. For a MRO to verify an opiate test
result as negative because the MRO was unable to conduct a medical
examination is inappropriate. Safety goals are not served nor does the
finding factually represent the events. Therefore, in this limited
situation, the Department is adding language permitting the MRO to
report the test as ``cancelled.''
Section 40.267 What problems always cause an alcohol test to be
cancelled?
Paragraph (c)(5) of this section should reference 40.233(a)(1) and
(c)(3) and not 40.233(a)(1) and (d). There is no paragraph (d) in the
section to reference. Correcting the reference will keep the intent of
the section consistent with the 1999 NPRM [FR 69076]. The change will
correct this typographical error.
Section 40.269 What problems cause an alcohol test to be cancelled
unless they are corrected?
Paragraph (b) of this section should reference 40.255(a)(3) and not
40.255(a)(2). The change will correct this typographical error.
Section 40.281 Who is qualified to act as a SAP?
When the Department published its rule in 2000, the word
``alcohol'' was inadvertently omitted when identifying that the SAP is
permitted to act in the Department's drug and alcohol testing program.
The change will correct this omission.
Regulatory Analyses and Notices
The statutory authority for this rule derives from the Omnibus
Transportation Employee Testing Act of 1991 (49 U.S.C. 102, 301, 322,
5331, 20140, 31306, and 45101 et seq.) and the Department of
Transportation Act (49 U.S.C. 322).
This rule is not significant for purposes of Executive Order 12866
or the DOT's regulatory policies and procedures. It makes minor
modifications to our procedures to increase the number of qualified
SAPs available to employees and employers, and corrects or clarifies
existing regulatory provisions. Except for providing some additional
potential sources of income to some MFTs, it should not have an
economic impact, let alone a significant one, on anyone. Consequently,
under the Regulatory Flexibility Act, the Department certifies that
this rule will not have a significant economic impact on a substantial
number of small entities.
This rule imposes no information collection requirements for which
Paperwork Reduction Act approval is needed. It has no Federalism impact
that would warrant a Federalism assessment. With respect to the
technical amendments that were not part of the NPRM, the Department has
determined that under Section 553 of the Administrative Procedure Act
that prior notice and opportunity for public comment would be
unnecessary, impracticable or contrary to the public interest. The
amendments do not make substantive changes to part 40, and the
Department does not anticipate the receipt of meaningful comments on
them. The amendments make largely ministerial changes such as a change
of address for an agency office, the change of the name of an agency
and corrections of citations.
List of Subjects in 49 CFR Part 40
Administrative practice and procedures, Alcohol abuse, Alcohol
testing, Drug abuse, Drug testing, Laboratories, Reporting and
recordkeeping requirements, Safety, Transportation.
[[Page 49384]]
49 CFR subtitle A
Authority and Issuance
Dated: August 14, 2006.
Maria Cino,
Acting Secretary of Transportation.
0
For reasons discussed in the preamble, the Department of Transportation
amends part 40 of Title 49, Code of Federal Regulations, as follows:
PART 40--PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL
TESTING PROGRAMS
0
1. The authority citation for 49 CFR part 40 is revised to read as
follows:
Authority: 49 U.S.C. 102, 301, 322, 5331, 20140, 31306, and
45101 et seq.; 49 U.S.C. 322.
0
2. PART 40--[Nomenclature change]
In part 40, revise all references to ``RSPA'' to read ``PHMSA''.
Sec. 40.3 [Amended]
0
3. Amend Sec. 40.3 as follows:
a. In the definition of ``Laboratory'', remove the words ``5600
Fishers Lane, Rockwall II Building, Suite 815, Rockville, MD 20857'',
and add, in their place, the words ``1 Choke Cherry Road, Room 2-1035,
Rockville MD 20587''.
b. In the definition of ``DOT, The Department, DOT agency'', remove
the words ``Research and Special Projects Administration (RSPA)'' and
add, in their place, the words ``Pipeline and Hazardous Material Safety
Administration (PHMSA)''.
Sec. 40.23 [Amended]
0
4. Sec. 40.23 (c) is amended by revising ``0.39'' to read ``0.039''.
Sec. 40.73 [Amended]
0
5. Sec. 40.73 (a)(2) is amended by revising ``Step 5'' to read ``Step
4''.
Sec. 40.83 [Amended]
0
6. Sec. 40.83 (c)(2) and (4) are amended by revising ``(g)'' to read
``(h)''.
0
7. Sec. 40.191 is amended by revising paragraph (a)(7) to read as
follows:
Sec. 40.191 What is a refusal to take a DOT drug test, and what are
the consequences?
(a) * * *
(7) Fail to undergo a medical examination or evaluation, as
directed by the MRO as part of the verification process, or as directed
by the DER under Sec. 40.193(d). In the case of a pre-employment drug
test, the employee is deemed to have refused to test on this basis only
if the pre-employment test is conducted following a contingent offer of
employment. If there was no contingent offer of employment, the MRO
will cancel the test; or
* * * * *
Sec. 40.267 [Amended]
0
8. Sec. 40.267 (c)(5) is amended by revising the words ``(see Sec.
40.233(a)(1) and (d))'' to read ``(see Sec. 40.233(a)(1) and
(c)(3))''.
Sec. 40.269 [Amended]
0
9. Sec. 40.269 (b) is amended by revising the words ``(see Sec.
40.255(a)(2))'' to read ``(see Sec. 40.255(a)(3))''.
0
10. Sec. 40.281 is amended by re-designating paragraph (a) (5) as (a)
(6), by removing the word ``or'' at the end of (a) (4) and by adding a
new (a) (5) to read as follows:
Sec. 40.281 Who is qualified to act as a SAP?
* * * * *
(a) * * *
(5) You are a state-licensed or certified marriage and family
therapist; or
* * * * *
0
11. Sec. 40.283 (a) is revised to read as follows:
Sec. 40.283 How does a certification organization obtain recognition
for its members as SAPs?
(a) If you represent a certification organization that wants DOT to
authorize its certified drug and alcohol counselors to be added to
Sec. 40.281(a)(6), you may submit a written petition to DOT requesting
a review of your petition for inclusion.
* * * * *
[FR Doc. E6-13956 Filed 8-22-06; 8:45 am]
BILLING CODE 4910-62-P