[Federal Register Volume 69, Number 14 (Thursday, January 22, 2004)]
[Rules and Regulations]
[Pages 3021-3022]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1326]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 40

[Docket OST-2003-15245]
RIN 2105-AD36


Procedures for Transportation Workplace Drug and Alcohol Testing 
Programs: Revision of Substance Abuse Professional Credential 
Requirement

AGENCY: Office of the Secretary, DOT.

ACTION: Final rule.

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SUMMARY: The Department of Transportation's Office of Drug and Alcohol 
Policy and Compliance (ODAPC) is adding drug and alcohol abuse 
counselors certified by the National Board for Certified Counselors, 
Inc. and Affiliates (NBCC), specifically NBCC's Master Addictions 
Counselor (MAC), to those eligible to be substance abuse professionals 
(SAPs) under subpart O of 49 CFR part 40.

DATES: This rule is effective January 22, 2004.

FOR FURTHER INFORMATION CONTACT: Jim L. Swart, Drug and Alcohol Policy 
Advisor at (202) 366-3784 (voice), (202) 366-3897 (fax), or at 
[email protected] (e-mail).

SUPPLEMENTARY INFORMATION: 

Background

    The Omnibus Transportation Employee 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 
(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'' for the 
return-to-duty process. The SAP represents the major decision point an 
employer may have in choosing whether or not to place an employee back 
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 as 
``Gatekeeper'' provides vital help to the employee, the employer, and 
to the traveling public.
    In order to be permitted to act as a SAP in the DOT drug and 
alcohol testing program, in addition to meeting basic knowledge, 
training and examination, and continuing education requirements, 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).
    Part 40, at Sec.  40.283, details how a certification organization 
wishing to obtain recognition for its members as SAPs can submit to the 
Department a written petition requesting a review of that petition. The 
Department stipulates that the organization must first obtain National 
Commission for Certifying Agencies (NCCA) accreditation through the 
National Organization for Competency Assurance (NOCA) and meet the 
requirements of appendix E to part 40. The petition must fully show 
proof of the organization's meeting these review prerequisites.
    The National Board for Certified Counselors, Inc. and Affiliates, 3 
Terrace Way, Suite D, Greensboro, NC 27403-3660, petitioned the DOT for 
inclusion of its MAC as one of the SAP credentials. Upon receipt of the 
petition, the DOT began a thorough review of the NBCC proposal, to 
include substantive information documentation and demonstration of the 
12 items in appendix E to part 40. In addition, the Department obtained 
corroboration from appropriate sources that the information provided by 
NBCC was valid.
    Relative to the criteria established by the Department for 
certifying organizations, the NBCC MAC credential was accredited by the 
NCCA certification and accreditation process and that accreditation is 
currently in good standing. The Department used its collaborative 
relationship with NOCA to ensure that the focus of the NBCC's MAC 
examination was on substance abuse, and we used that relationship to 
further ensure that NCCA's accreditation standards were met. In 
addition to meeting the NCCA accreditation standards, NBCC had to meet 
the part 40 requirements at appendix E. The NBCC MAC credential process 
met or exceeded all DOT requirements.
    The results of our evaluation supports the conclusion that NBCC has 
rigorous standards in place and their MAC credential warrants inclusion 
as an appropriate SAP credential in the Department's drug and alcohol 
testing regulation. Their program requirements and certification 
process meet the rigorous requirements of NCCA accreditation. Their 
standards also satisfy the Department's equally rigorous requirements 
at appendix E to 49 CFR part 40. Therefore, after careful review of 
NBCC's petition, supporting documentation, and certification 
procedures, NBCC's certified MACs will be recognized as eligible to be 
SAPs.

Regulatory Analyses and Notices

    This rule is not a significant rule for purposes of Executive Order 
12866 or

[[Page 3022]]

the DOT's Regulatory Policies and Procedures. With respect to the 
Regulatory Flexibility Act, the Department certifies that this rule 
will not have a significant economic impact on a substantial number of 
small entities. In fact, it will serve to increase the number of 
qualified SAPs available to employees and employers.
    The Department is issuing this as a final rule without opportunity 
for notice and public comment. The Department determined that doing so 
would be impracticable, unnecessary, and contrary to the public 
interest because the parameters for the Department's decisions with 
regard to counselor certification groups have been long established in 
part 40 and have been amply commented upon previously. In addition, our 
review, verification, and corroboration process of NBCC's petition and 
documentation were very comprehensive and followed the review criteria 
in appendix E to part 40. Finally, an immediate increase in the number 
of those counselors eligible to become SAPs will be realized within the 
transportation industries near to part 40's SAP ``qualification 
training'' deadline, which was December 31, 2003.
    For the same good cause and reasons stated in the above paragraph, 
the Department is issuing this final rule with an immediate effective 
date rather than one 30 days from date of publication.

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.

    Dated: January 13, 2004.
Norman Y. Mineta,
Secretary of Transportation.

0
For reasons set forth in the preamble, the Department of Transportation 
amends part 40 Title 49, Code of Federal Regulations, as follows:

PART 40--[AMENDED]

0
1. The authority citation for 49 CFR part 40 continues to read as 
follows:

    Authority: 49 U.S.C. 102, 301, 322, 5331, 20140, 31306, and 
45102 et seq.

0
2. Revise Sec.  40.281(a)(5) to read as follows:


Sec.  40.281  Who is qualified to act as a SAP?

    (a) * * *
    (5) You are a drug and alcohol counselor certified by the National 
Association of Alcoholism and 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 Addictions 
Counselor (NBCC).
* * * * *
[FR Doc. 04-1326 Filed 1-21-04; 8:45 am]
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