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 Part 653 and 654

[OST Docket No. OST-96-1132, Notice 96-3]

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: Notice of proposed rulemaking.

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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.

DATES: Comments should be received by April 11, 1996. Late-filed

comments will be considered to the extent practicable.

ADDRESSES: Comments should be sent, preferably in triplicate, to Docket

Clerk, Docket No. OST-96-1132, Department of Transportation, 400 7th

Street, S.W., Room PL-400, Washington, D.C. 20590. Comments will be

available for inspection at this address from 9:00 a.m. to 5:30 p.m.,

Monday through Friday. Commenters who wish the receipt of their

comments to be acknowledged should include a stamped, self-addressed

postcard with their comments. The Docket Clerk will date-stamp the

postcard and mail it back to the commenter.

[[Page 9970]]

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, S.W.,

Washington D.C. 20590.

SUPPLEMENTARY INFORMATION: 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

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

certified counselors do not have the experience or training deemed

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 support 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 has decided to propose 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. The Department is aware that other organizations may be

interested having their members qualify as SAPs. Such organizations

should contact the Office of Drug Enforcement and Program Compliance

(see ``For Further Information Contact'') for information on the

Department's process for reviewing petitions for inclusion in the SAP

definition.

Also, the Department has decided that, for convenience, we will

propose consolidating SAP-related matters into Part 40, its Department-

wide procedural regulation. Therefore, we propose to add a definition

of SAP--including ICRC-certified counselors--to Part 40, while the SAP

definitions in each of the operating administration rules would be

removed. In a subsequent notice, the Department anticipates proposing

to consolidate into Part 40 other material concerning the SAP's role in

the return-to-duty process.

With this action, the SAP definition would change from

Substance abuse professional means a licensed physician (Medical

Doctor or Doctor of Osteopathy), or a licensed or certified

psychologist, social worker, employee assistance professional, or an

addiction

[[Page 9971]]

counselor (certified by the National Association of Alcoholism and

Drug Abuse Counselors Certification Commission) with knowledge of

and clinical experience in the diagnosis and treatment of alcohol

and controlled substances-related disorders.

to:

Substance abuse professional means 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.

The last sentence would be reworded slightly to emphasize the

Department's intent--incorporated in the February 1994 definition--that

each SAP, regardless of the source of his or her credentials,

personally have knowledge of and clinical experience in the diagnosis

and treatment of alcohol and controlled substances-related disorders.

Regulatory Process Matters

The proposed 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 is soliciting comment for 30 days on this proposal,

rather than a longer time, on two grounds. First, it is highly

desirable to be able to issue a final rule promptly, in order to permit

ICRC-certified individuals to perform as SAPs with as little delay as

possible. This is particularly important in light of the fact that,

beginning January 1, 1996, many additional transportation employers

began to be covered by the drug and alcohol rules, and an expanded pool

of SAPs will be useful to serve the expanded universe of regulated

parties. Second, the Department believes that this is a

noncontroversial action, on which we anticipate little public comment.

OST

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

proposed to be amended as follows:

PART 40--[AMENDED]

1. The authority citation for Part 40 would continue to read as

follows:

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

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

Sec. 40.31 [Amended]

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

definition of ``substance abuse professional'' is proposed to be added,

to read as follows:

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 6th day of March, 1996, at Washington, D.C.

Federico Pena,

Secretary of Transportation.

FAA

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 proposes to amend 14 CFR part 121, as follows:

PART 121--CERTIFICATION AND OPERATIONS: DOMESTIC, FLAG, AND

SUPPLEMENTAL AIR CARRIERS AND COMMERCIAL OPERATORS OF LARGE

AIRCRAFT

1. The authority citation for part 121 would continue to read as

follows:

Authority: 49 U.S.C. 106(g), 400113, 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 proposed to be removed.

Appendix J [Amended]

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

``Substance abuse professional'' is proposed to be removed.

Issued in Washington, DC on March 6, 1996.

David R. Hinson,

Administrator, Federal Aviation Administration.

RSPA

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 proposes to amend 49

CFR Part 199 as follows:

PART 199--DRUG AND ALCOHOL TESTING

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

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

CFR 1.53.

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

professional'' is proposed to be removed.

Issued in Washington, DC on March 6, 1996.

D.K. Sharma,

Administrator, Research and Special Programs Administration.

FRA

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 proposes to amend 49

CFR Part 219, as follows:

PART 219--CONTROL OF ALCOHOL AND DRUG USE

1. The authority for part 219 would continue 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 proposed to be removed.

[[Page 9972]]

Issued in Washington, DC on March 6, 1996.

Donald M. Itzkoff,

Deputy Administrator.

FHWA

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 proposes to amend

49 CFR part 382, as follows:

PART 382--CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING

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

Authority: 49 U.S.C. 31306; 49 U.S.C. app. 31201 et. seq.; 49

U.S.C. 31502; 49 CFR 1.48.

Sec. 382.107 [Amended]

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

professional'' is proposed to be removed.

Issued in Washington, DC on March 6, 1996.

Rodney Slater,

Administrator, Federal Highway Administration.

FTA

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 proposes to amend 49 CFR Parts 653 and 654, as follows:

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

1. The authority for Part 653 would continue 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 proposed to be removed.

PART 654--PREVENTION OF ALCOHOL MISUSE IN TRANSIT OPERATIONS

1. The authority for Part 654 would continue 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 proposed to be removed.

Issued in Washington, DC, on March 6, 1996.

Gordon J. Linton,

Administrator, Federal Transit Administration.

[FR Doc. 96-5848 Filed 3-11-96; 8:45 am]

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