[Federal Register: January 22, 2004 (Volume 69, Number 14)]
[Rules and Regulations]
[Page 3021-3022]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22ja04-15]
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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.
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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 Sec. 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
[[Page 3022]]
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.
0
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]
0
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.
0
2. Revise Sec. 40.281(a)(5) to read as follows:
Sec. 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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