[Federal Register Volume 71, Number 163 (Wednesday, August 23, 2006)]
[Rules and Regulations]
[Pages 49382-49384]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-13956]


=======================================================================
-----------------------------------------------------------------------

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 
[email protected] (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