[Federal Register Volume 61, Number 49 (Tuesday, March 12, 1996)]
[Proposed Rules]
[Pages 9969-9972]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5848]



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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 Part 653 and 654

[OST Docket No. OST-96-1132, Notice 96-3]
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: Notice of proposed rulemaking.

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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.

DATES: Comments should be received by April 11, 1996. Late-filed 
comments will be considered to the extent practicable.

ADDRESSES: Comments should be sent, preferably in triplicate, to Docket 
Clerk, Docket No. OST-96-1132, Department of Transportation, 400 7th 
Street, S.W., Room PL-400, Washington, D.C. 20590. Comments will be 
available for inspection at this address from 9:00 a.m. to 5:30 p.m., 
Monday through Friday. Commenters who wish the receipt of their 
comments to be acknowledged should include a stamped, self-addressed 
postcard with their comments. The Docket Clerk will date-stamp the 
postcard and mail it back to the commenter.


[[Page 9970]]

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, S.W., 
Washington D.C. 20590.

SUPPLEMENTARY INFORMATION: 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 
critera because qualifications vary greatly by state. In some states, 
certified counselors do not have the experience or training deemed 
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 support 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 has decided to propose 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. The Department is aware that other organizations may be 
interested having their members qualify as SAPs. Such organizations 
should contact the Office of Drug Enforcement and Program Compliance 
(see ``For Further Information Contact'') for information on the 
Department's process for reviewing petitions for inclusion in the SAP 
definition.
    Also, the Department has decided that, for convenience, we will 
propose consolidating SAP-related matters into Part 40, its Department-
wide procedural regulation. Therefore, we propose to add a definition 
of SAP--including ICRC-certified counselors--to Part 40, while the SAP 
definitions in each of the operating administration rules would be 
removed. In a subsequent notice, the Department anticipates proposing 
to consolidate into Part 40 other material concerning the SAP's role in 
the return-to-duty process.
    With this action, the SAP definition would change from

    Substance abuse professional means a licensed physician (Medical 
Doctor or Doctor of Osteopathy), or a licensed or certified 
psychologist, social worker, employee assistance professional, or an 
addiction

[[Page 9971]]
counselor (certified by the National Association of Alcoholism and 
Drug Abuse Counselors Certification Commission) with knowledge of 
and clinical experience in the diagnosis and treatment of alcohol 
and controlled substances-related disorders.

to:

    Substance abuse professional means 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.

The last sentence would be reworded slightly to emphasize the 
Department's intent--incorporated in the February 1994 definition--that 
each SAP, regardless of the source of his or her credentials, 
personally have knowledge of and clinical experience in the diagnosis 
and treatment of alcohol and controlled substances-related disorders.

Regulatory Process Matters

    The proposed 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 is soliciting comment for 30 days on this proposal, 
rather than a longer time, on two grounds. First, it is highly 
desirable to be able to issue a final rule promptly, in order to permit 
ICRC-certified individuals to perform as SAPs with as little delay as 
possible. This is particularly important in light of the fact that, 
beginning January 1, 1996, many additional transportation employers 
began to be covered by the drug and alcohol rules, and an expanded pool 
of SAPs will be useful to serve the expanded universe of regulated 
parties. Second, the Department believes that this is a 
noncontroversial action, on which we anticipate little public comment.

OST

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 
proposed to be amended as follows:

PART 40--[AMENDED]

    1. The authority citation for Part 40 would continue to read as 
follows:

    Authority: 49 U.S.C. 102,301,322; 49 U.S.C. app. 1301nt., app. 
1434nt., app. 2717, app. 1618a.


Sec. 40.31  [Amended]

    2. In Sec. 40.3, after the definition of ``specimen bottle,'' a 
definition of ``substance abuse professional'' is proposed to be added, 
to read as follows:
    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 6th day of March, 1996, at Washington, D.C.
Federico Pena,
Secretary of Transportation.

FAA

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 proposes to amend 14 CFR part 121, as follows:

PART 121--CERTIFICATION AND OPERATIONS: DOMESTIC, FLAG, AND 
SUPPLEMENTAL AIR CARRIERS AND COMMERCIAL OPERATORS OF LARGE 
AIRCRAFT

    1. The authority citation for part 121 would continue to read as 
follows:

    Authority: 49 U.S.C. 106(g), 400113, 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 proposed to be removed.


Appendix J  [Amended]

    3. In Appendix J, Sec. I, subsection C, the definition of 
``Substance abuse professional'' is proposed to be removed.

    Issued in Washington, DC on March 6, 1996.
David R. Hinson,
Administrator, Federal Aviation Administration.

RSPA

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 proposes to amend 49 
CFR Part 199 as follows:

PART 199--DRUG AND ALCOHOL TESTING

    1. The authority for Part 199 would continue to read as follows:

    Authority: 49 U.S.C. 5103, 60102, 60103, 60104, and 60108; 49 
CFR 1.53.

    2. In 49 CFR 199.205, the definition of ``Substance abuse 
professional'' is proposed to be removed.

    Issued in Washington, DC on March 6, 1996.
D.K. Sharma,
Administrator, Research and Special Programs Administration.

FRA

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 proposes to amend 49 
CFR Part 219, as follows:

PART 219--CONTROL OF ALCOHOL AND DRUG USE

    1. The authority for part 219 would continue 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 proposed to be removed.


[[Page 9972]]

    Issued in Washington, DC on March 6, 1996.
Donald M. Itzkoff,
Deputy Administrator.

FHWA

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 proposes to amend 
49 CFR part 382, as follows:

PART 382--CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING

    1. The authority for part 382 would continue to read as follows:

    Authority: 49 U.S.C. 31306; 49 U.S.C. app. 31201 et. seq.; 49 
U.S.C. 31502; 49 CFR 1.48.


Sec. 382.107  [Amended]

    2. In Sec. 382.107, the definition of ``Substance abuse 
professional'' is proposed to be removed.

    Issued in Washington, DC on March 6, 1996.
Rodney Slater,
Administrator, Federal Highway Administration.

FTA

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 proposes to amend 49 CFR Parts 653 and 654, as follows:

PART 653--PREVENTION OF PROHIBITED DRUG USE IN TRANSIT OPERATIONS

    1. The authority for Part 653 would continue 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 proposed to be removed.

PART 654--PREVENTION OF ALCOHOL MISUSE IN TRANSIT OPERATIONS

    1. The authority for Part 654 would continue 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 proposed to be removed.

    Issued in Washington, DC, on March 6, 1996.
Gordon J. Linton,
Administrator, Federal Transit Administration.
[FR Doc. 96-5848 Filed 3-11-96; 8:45 am]
BILLING CODE 4910-62-P