Proposed Rules. Final rule
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BILLING CODE 6712-01-P 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. 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 *jim.swart@ost.dot.gov* (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 § 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 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. 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] 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.* 2. Revise § 40.281(a)(5) to read as follows: § 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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