Amendment to Definition of ``Substance Abuse Professional''

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 Parts 653 and 654

[OST Docket No. OST-96-1533]

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: Final rule.

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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.

EFFECTIVE DATE: This rule is effective July 17, 1996.

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, SW.,

Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Background

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

criteria because qualifications vary greatly by state. In some states,

certified counselors do not have the experience or training deemed

[[Page 37223]]

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 supported 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

proposed 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.

At the same time, the Department proposed consolidating SAP-related

matters into Part 40, its Department-wide procedural regulation. Under

the NPRM, the Department proposed to place the revised definition of

SAP--including ICRC-certified counselors--in part 40, while removing

the SAP definitions in each of the operating administration rules.

Comments and DOT Responses

Twenty-eight comments addressed the inclusion of ICRC-certified

counselors in the SAP definition. No one opposed the proposed

amendment. For the reasons noted above, the Department will include

ICRC counselors in the definition.

Three comments suggested that additional professions or

certifications be recognized in the SAP definition. Further additions

to the definition are beyond the scope of this rulemaking. However,

representatives of any group or profession seeking inclusion may

contact the individuals listed above in ``For Further Information

Contact'' to discuss the process for considering such requests.

One comment asked for further clarification of the operational role

of the SAP, with respect to such matters as referral for treatment, the

return to duty process, and follow-up testing. The Department has

issued guidance in these areas and, if needed, can issue additional

guidance in the future. In our view, further elaboration of the

regulatory text in these areas is not necessary.

One comment, from a trade association, suggested that the

definition of SAP remain in the regulation for the operating

administration that regulates its members, rather than being

consolidated in 49 CFR part 40. The rationale for this suggestion

appears to be that employers would prefer to find all relevant terms in

one rule--the operating administration rule--rather than needing to be

familiar with both the operating administration rule and part 40.

This rationale is unpersuasive. Part 40 already applies to all

employers covered by all the operating administration drug and alcohol

testing rules. Each operating administration rule already incorporates

by reference and applies Part 40 with respect to all tests conducted by

covered employers. Employers must already be familiar with and refer to

part 40 in order to conduct tests properly. Having a DOT-wide, common

definition of SAP in part 40 is no more remarkable or difficult for

employers to grasp than having the existing common definitions of

Medical Review Officer or Breath Alcohol Technician in part 40. The

ease of reference to common terms affecting the drug and alcohol

testing process found in a single place, particularly for the many

multi-modal employers covered by the Department's rules, is a

significant reason for adopting the proposed consolidation. Moreover,

it is much quicker to amend one rule than to amend six, an important

consideration when the SAP definition is potentially subject to

additional amendments if additional professions or certifications are

included. The Department is adopting the proposed consolidation.

Regulatory Process Matters

The final 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 finds good cause to make this final rule effective

immediately. There are a substantial number of ICRC-certified

counselors who are ready and waiting to participate as SAPs in the DOT

drug and alcohol testing program, and there is no opposition to their

beginning to participate. The interest of the DOT program, the

counselors themselves, and the employers who will be able to make use

of them is served by making this rule change effective as soon as

possible. In addition, this rule can be viewed as relieving a

restriction on the participation of ICRC-counselors in the program.

Office of the Secretary

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

amended as follows:

PART 40--[AMENDED]

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

Authority: 49 U.S.C. 102, 301, 322; 49 U.S.C. app. 1301nt., app.

1434nt., app. 2717, app. 1618a.

2. In Sec. 40.3, after the definition of ``specimen bottle,'' a

definition of ``substance abuse professional'' is added, to read as

follows:

[[Page 37224]]

Sec. 40.3 Definitions.

* * * * *

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 9th day of July, 1996, at Washington, DC.

Federico Pena,

Secretary of Transportation.

Federal Aviation Administration

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 amends 14 CFR part 121, as follows:

PART 121--OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL

OPERATIONS

1. The authority citation for part 121 continues to read as

follows:

Authority: 49 U.S.C. 106(g), 40113, 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 removed.

Appendix J [Amended]

3. In Appendix J, Sec. I, subsection C, the definition of

``Substance abuse professional'' is removed.

Issued in Washington, DC on May 13, 1996.

David R. Hinson,

Administrator, Federal Aviation Administration.

Research and Special Programs Administration

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 amends 49 CFR part 199

as follows:

PART 199--DRUG AND ALCOHOL TESTING

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

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

CFR 1.53.

Sec. 199.205 [Amended]

2. In 49 CFR 199.205, the definition of ``Substance abuse

professional'' is removed.

Issued in Washington, DC on June 11, 1996.

D.K. Sharma,

Administrator, Research and Special Programs Administration.

Federal Railroad Administration

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 amends 49 CFR part 219,

as follows:

PART 219--CONTROL OF ALCOHOL AND DRUG USE

1. The authority for part 219 continues 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 removed.

Issued in Washington, DC on July 9, 1996.

Donald M. Itzkoff,

Deputy Administrator, Federal Railroad Administration.

Federal Highway Administration

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 amends 49 CFR part

382, as follows:

PART 382--CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING

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

Authority: 49 U.S.C. 31133, 31136, 31301 et seq., 31502; and 49

CFR 1.48.

2. In Sec. 382.107, the definition of ``Substance abuse

professional'' is removed.

Issued in Washington, DC on July 9, 1996.

Rodney E. Slater,

Administrator, Federal Highway Administration.

Federal Transit Administration

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 amends 49 CFR parts 653 and 654, as follows:

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

1. The authority for part 653 continues 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 removed.

PART 654--PREVENTION OF ALCOHOL MISUSE IN TRANSIT OPERATIONS

1. The authority for part 654 continues 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 removed.

Issued in Washington, DC on July 9, 1996.

Gordon J. Linton,

Administrator, Federal Transit Administration.

[FR Doc. 96-18064 Filed 7-16-96; 8:45 am]

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