[Federal Register Volume 71, Number 47 (Friday, March 10, 2006)]
[Proposed Rules]
[Pages 12331-12332]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-3334]


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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

AGENCY: Office of the Secretary, DOT.

ACTION: Notice of proposed rulemaking

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SUMMARY: The Department of Transportation is proposing to add state 
licensed and certified marriage and family therapists to the list of 
credentialed professions eligible to serve as substance abuse 
professionals under subpart O of 49 CFR part 40.

DATES: Comments to the NPRM should be submitted by April 10, 2006. 
Late-filed comments will be considered to the extent practicable.

ADDRESSES: You may submit comments identified by the docket number 
[OST-2006-24112] by any of the following methods:
     Web site: http://www.dms.dot.gov Follow the instructions 
for submitting comments on the DOT electronic docket site.
     Federal eRulemaking Portal: http://www.regulations.gov 
Follow the instructions for submitting comments.
     Fax: 1-202-493-2251.
     Mail: Docket Management System; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-001.
     Hand Delivery: To the Docket Management System; Room PL-
401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC between 9 a.m. and 5 p.m., Monday through Friday, except 
Federal Holidays.
    Instructions: You must include the agency name and docket number 
[OST-2006-24112] or the Regulatory Identification Number (RIN) for this 
notice at the beginning of your comment. Note that all comments 
received will be posted without change to http://www.dms.dot.gov 
including any personal information provided. Please see the Privacy Act 
section of this document.
    Docket: You may view the public docket through the Internet at 
http://www.dms.dot.gov or in person at the Docket Management System 
office at the above address.

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 
[email protected] (e-mail).

[[Page 12332]]


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 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); or by the National Board for Certified 
Counselors, Inc. and Affiliates/Master Addiction Counselor (NBCC).
    Recently, President Bush signed the Safe, Accountable, Flexible, 
and Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-
LU) [August 10, 2005, 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. Because of the law and our on-going discussions with the American 
Association of Marriage and Family Therapists (AAMFT), the Department 
is proposing to add state certified or licensed MFTs to those 
professions already eligible to be SAPs in the Department's drug and 
alcohol testing program.
    Over the years, the Department has had numerous contacts with AAMFT 
but had not considered MFTs to be an acceptable professional credential 
for SAPs because MFTs were not licensed or certified to practice in all 
fifty states.
    Because of the MFT education requirements, the significant strides 
MFTs have made in obtaining state licensure and certification 
recognition, and because of the SAFETEA-LU legislation, the Department 
would include MFTs as being eligible to become SAPs in the Department's 
regulated transportation drug and alcohol testing programs. Because of 
the SAFETEA-LU legislation, the Department is proposing not wait until 
MFTs are licensed or certified to practice in all 50 states the way we 
have for all other professions (i.e., physicians, social workers, and 
psychologists). According to AAMFT, currently all states except Montana 
and West Virginia provide licensure or certification for MFTs. 
Therefore, MFTs in states that provide them licensure or certification 
would become eligible. As soon as Montana and West Virginia license or 
certify them, MFTs in those states would become eligible, too.

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 proposed 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. 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, the Department certifies, under the Regulatory 
Flexibility Act, that this proposed rule will not, if adopted, not have 
a significant economic impact on a substantial number of small 
entities.
    Because of the work that the Department has done concerning 
marriage and family therapists, and the evident intent of Congress that 
they be included in the drug and alcohol testing program, we believe 
that a 30-day comment period will be sufficient for this NPRM.

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.

49 CFR Subtitle A

    Authority and Issuance.

    Dated: March 2, 2006.
Norman Y. Mineta,
Secretary of Transportation.
    For reasons discussed in the preamble, the Department of 
Transportation proposes to amend part 40 of Title 49, Code of Federal 
Regulations, as follows:

PART 40--PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL 
TESTING PROGRAMS

    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.

    2. Section 40.281 is proposed to be 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
* * * * *
    3. Section 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. E6-3334 Filed 3-9-06; 8:45 am]
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