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/ Monday, January 12, 2004
[Federal Register: January 12, 2004 (Volume 69, Number 7)]
[Rules and Regulations]
[Page 1839-1860]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12ja04-24]
[[Page 1839]]
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Part IV
Department of Transportation
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Federal Aviation Administration
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14 CFR Part 121
Antidrug and Alcohol Misuse Prevention Programs for Personnel Engaged
in Specified Aviation Activities; Final Rule
[[Page 1840]]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 121
[Docket No. FAA-2002-11301; Amendment No. 121-302]
RIN 2120-AH14
Antidrug and Alcohol Misuse Prevention Programs for Personnel
Engaged in Specified Aviation Activities
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
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SUMMARY: As a result of a number of years of experience inspecting the
aviation industry's Antidrug and Alcohol Misuse Prevention Programs,
the FAA is clarifying regulatory language, increasing consistency
between the antidrug and alcohol misuse prevention program regulations
where possible, and eliminating regulatory provisions that are no
longer appropriate. The major changes the FAA is making include the
requirements for submission of antidrug plans and alcohol misuse
prevention certification statements by employers and contractors; and
the timing of pre-employment testing. The effect of these changes is to
improve safety and lessen administrative burdens on the regulated
public.
DATES: These amendments become effective February 11, 2004.
FOR FURTHER INFORMATION CONTACT: Diane J. Wood, Manager, Drug Abatement
Division, AAM-800, Office of Aerospace Medicine, Federal Aviation
Administration, 800 Independence Avenue SW., Washington, DC 20591,
telephone number (202) 267-8442.
SUPPLEMENTARY INFORMATION:
Availability of Rulemaking Documents
You can get an electronic copy using the Internet by:
(1) Searching the Department of Transportation's electronic Docket
Management System (DMS) Web page (http://dms.dot.gov/search); (2) Visiting the Office of Rulemaking's Web page at http://
http://www.faa.gov/avr/arm/index.cfm; or
(3) Accessing the Government Printing Office's Web page at http://www.access.gpo.gov/su_docs/aces/aces140.html
.
You can also get a copy by submitting a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Make
sure to identify the amendment number or docket number of this
rulemaking.
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit
http://dms.dot.gov.
Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires FAA to comply with small entity requests for information
or advice about compliance with statutes and regulations within its
jurisdiction. If you are a small entity and you have a question
regarding this document, you may contact its local FAA official, or the
person listed under FOR FURTHER INFORMATION CONTACT. You can find out
more about SBREFA on the Internet at http://www.faa.gov/avr/arm/sbrefa.htm
, or by e-mailing us at -AWA-SBREFA@faa.gov.
General Information
The General Information portion of the preamble is organized as
follows:
[sbull] Background information about the drug and alcohol rules (14
CFR part 121, appendices I and J, respectively).
[sbull] Two charts highlighting the principal changes in appendices
I and J.
[sbull] Two charts highlighting the clarifying changes in
appendices I and J.
[sbull] Discussion of comments received.
Background Information About the Drug and Alcohol Rules
The Antidrug and Alcohol Misuse Prevention Program regulations are
part of a long history of FAA actions to combat the use of drugs and
alcohol in the aviation industry. For many decades the FAA has had
regulations prohibiting crewmembers from operating aircraft under the
influence of alcohol or drugs that impair their ability to operate the
aircraft. Because of the broad use of drugs in American society, the
FAA adopted rules in the 1980s to require testing of persons performing
safety functions in the commercial aviation industry for certain
illegal drugs. On November 14, 1988, the FAA published a final rule
entitled, Antidrug Program for Personnel Engaged in Specified Aviation
Activities (53 FR 47024), which required specified aviation employers
and operators to initiate antidrug programs for personnel performing
safety-sensitive functions.
Congress enacted the Omnibus Transportation Employee Testing Act of
1991 (49 U.S.C. 45101, et seq.) (the Act), requiring drug and alcohol
testing of air carrier employees. To conform with the Act, the Office
of the Secretary of Transportation (OST) coordinated the efforts of
Department of Transportation (DOT) modal administrations to address the
issue of alcohol use in the transportation industries. On August 19,
1994, the FAA published a final rule entitled, Antidrug Program for
Personnel Engaged in Specified Aviation Activities (59 FR 42911), which
made clarifying and substantive changes in the FAA's antidrug rule to
comport with revised DOT drug testing procedures. On February 15, 1994,
the FAA published a final rule entitled, Alcohol Misuse Prevention
Program for Personnel Engaged in Specified Aviation Activities (59 FR
7380). The final rule required certain aviation employers to conduct
alcohol testing.
The FAA's regulatory efforts have proven to be effective in
detecting and deterring illegal drug use and alcohol misuse in the
aviation industry. From 1990 through 2001, aviation employers required
to report have told the FAA that approximately 19,400 positive pre-
employment test results have occurred. Hence, pre-employment testing
has proven to be an effective detection tool for the aviation industry.
In addition to these pre-employment test results, between 1990 and
2001 there were approximately 11,100 positive drug test results
reported to the FAA by employers. For alcohol tests conducted between
1995 and 2001, employers have reported a total of approximately 900
breath alcohol test results of 0.04 or greater. This is further
evidence of the success of the FAA's drug and alcohol testing
regulations.
While the drug and alcohol testing regulations have proven
successful, experience has led the FAA to identify some aspects of the
regulations that need to be amended. These amendments change
requirements regarding: reasonable cause drug testing; periodic drug
testing; the approval process of antidrug program plans; and the
approval process of certification statements for alcohol misuse
prevention programs. The FAA is also clarifying regulatory language,
increasing consistency between the antidrug and alcohol misuse
prevention program regulations where possible, and eliminating
regulatory provisions that are no longer appropriate.
[[Page 1841]]
On February 28, 2002, the FAA published a Notice of Proposed
Rulemaking (NPRM), Notice 02-04 (67 FR 9365). We proposed clarifying
regulatory language, increasing consistency between the antidrug and
alcohol misuse prevention program regulations where possible and
eliminating regulatory provisions that were no longer appropriate. We
proposed these changes to improve safety and lessen administrative
burdens. The comment period for Notice 02-04 was scheduled to close May
29, 2002, but was extended until July 29, 2002 (67 FR 37361; May 29,
2002) as a result of public requests for extension.
In Notice 02-04, the FAA proposed to make it clear that each person
who performs a safety-sensitive function directly or by any tier of a
contract for an employer is subject to testing. Several commenters
stated that this was more than a clarifying change. The commenters
suggested that, because more people would have to be tested, there
would be an economic impact from this proposed change. In order to
gather more information on the concerns expressed by the commenters,
the FAA is not adopting the proposed revision in this final rule and
will be publishing a Supplemental Notice of Proposed Rulemaking (SNPRM)
in the near future. All other issues and comments related to Notice 02-
04 are addressed and resolved in this final rule.
This amendment also replaces ``Office of Aviation Medicine'' with
``Office of Aerospace Medicine,'' wherever it appears in the
regulations.
Charts Summarizing the Changes
The following charts summarize the principal and clarifying changes
to appendices I and J to 14 CFR part 121. Where the proposed change is
modified in this final rule, the FAA's reason is discussed in this
preamble.
------------------------------------------------------------------------
Current section number and title Summary
------------------------------------------------------------------------
Principal Changes--Appendix I (Drug Testing)
------------------------------------------------------------------------
Section II. Definitions........... [sbull] Changes the definition of
``Employer'' to clarify that
employer may use a contract
employee to perform a safety-
sensitive function if the contract
employee is included in the:
1. Employer's FAA-mandated antidrug
program; or
2. Contractor's FAA-mandated
antidrug program while performing a
safety-sensitive function on behalf
of that contractor (i.e., within
the scope of employment with the
contractor.)
Section V. Types of Testing [sbull] Changes paragraph A., ``Pre-
Required. employment Testing,'' to require
pre-employment testing before
hiring or transferring an
individual into a safety-sensitive
position.
[sbull] Requires an employer to
conduct another pre-employment test
before hiring or transferring an
individual into a safety-sensitive
position if more than 180 days
elapse between a pre-employment
test and placing the individual
into a safety-sensitive position.
[sbull] Eliminates periodic drug
testing.
Section IX. Implementing an [sbull] Changes the title of the
Antidrug Program. section.
[sbull] Eliminates the requirement
for plan approvals. Instead
requiring that:
--New and existing part 121 and 135
certificate holders obtain an
Antidrug and Alcohol Misuse
Prevention Program Operations
Specification. Only one operations
specification is required for both
the drug and alcohol programs.
--New and existing part 145
certificate holders obtain an
Antidrug and Alcohol Misuse
Prevention Program Operations
Specification if they opt to have
the drug and alcohol programs
because they perform safety-
sensitive functions for an
employer. Only one operations
specification is required for both
the drug and alcohol programs.
--All other entities required or
opting to have Antidrug and Alcohol
Misuse Prevention Programs register
with the FAA. Only one registration
is required for both the drug and
alcohol programs.
[sbull] Eliminates the 60-day grace
period before employers must ensure
that contractors and part 145
certificate holders that perform
safety-sensitive functions are
subject to an antidrug program.
[sbull] Requires updates to
registration information as changes
occur.
[sbull] Makes it clear that
employers may use contractors
(including part 145 certificate
holders) to perform safety-
sensitive functions only if the
contractors are subject to an
antidrug program for the entire
time they are performing safety-
sensitive functions.
------------------------------------------------------------------------
Clarifying Changes--Appendix I (Drug Testing)
------------------------------------------------------------------------
Section I. General................ [sbull] Adds a paragraph that lists
applicable Federal regulations.
[sbull] Adds a paragraph that
prohibits falsification of any
logbook, record, or report.
Section II. Definitions........... [sbull] Changes the defined term
``Contractor company'' to
``Contractor'' to emphasize that
``Contractor'' could mean an
individual or a company.
[sbull] Changes the definition of
``Employee'' to eliminate
unnecessary language.
[sbull] Adds a definition of
``Hire'' to ensure that we do not
inadvertently eliminate anyone who
was required to submit to pre-
employment testing under the 1994
pre-performance provision.
Section III. Employees Who Must Be [sbull] Makes it clear that all
Tested. employees who perform safety-
sensitive functions, e.g.,
assistant, helper, or individual in
a training status, whether they are
full-time, part-time, temporary, or
intermittent employees, are subject
to an antidrug program regardless
of the degree of supervision.
Section V. Types of Drug Testing [sbull] Clarifies pre-employment
Required. notification requirements.
[sbull] Clarifies random testing
requirements.
------------------------------------------------------------------------
[[Page 1842]]
Principal Changes--Appendix J (Alcohol Testing)
------------------------------------------------------------------------
Section VII. Implementing an [sbull] Eliminates the FAA-required
Alcohol Misuse Prevention Alcohol Misuse Prevention
Certification Program. Certfication Statement. Instead the
FAA is requiring:
--New and existing part 121 and 135
certificate holders to obtain an
Antidrug and Alcohol Misuse
Prevention Program Operations
Specification. Only one operations
specification is required for both
the drug and alcohol programs.
--New and existing part 145
certificate holders to obtain an
Antidrug and Alcohol Misuse
Prevention Program Operations
Specification if they opt to have
the drug and alcohol programs
because they perform safety-
sensitive functions for an
employer. Only one operations
specification is required for both
the drug and alcohol programs.
--All other entities required or
opting to have Antidrug and Alcohol
Misuse Prevention Programs to
register with the FAA. Only one
registration is required for both
the drug and alcohol programs.
[sbull] Eliminates the 180-day grace
period before employers must ensure
that their contractors and part 145
certificate holders that perform
safety-sensitive functions are
subject to an alcohol misuse
prevention program.
[sbull] Requires updates to
registration information as changes
occur.
[sbull] Makes it clear that
employers may use contractors
(including part 145 certificate
holders) to perform safety-
sensitive functions only if the
contractors are subject to an
alcohol misuse prevention program
for the entire time they are
performing safety-sensitive
functions.
------------------------------------------------------------------------
Clarifying Changes--Appendix J (Alcohol Testing)
------------------------------------------------------------------------
Section I. General................ [sbull] Eliminates in paragraph D.
the definition of
``Administrator,'' because it is
defined elsewhere in the
regulations.
[sbull] Eliminates in paragraph D.
the definition of ``Consortium.''
[sbull] Changes in paragraph D. the
defined term ``Contractor company''
to ``Contractor'' to emphasize that
``Contractor'' could mean an
individual or a company.
[sbull] Adds paragraph H. that lists
applicable Federal regulations.
[sbull] Adds paragraph I. that
prohibits falsification of any
logbook, record, or report.
II. Covered Employees............. Makes it clear that all employees
who perform safety-sensitive
functions, e.g., assistant, helper,
or individual in a training status
whether they are full-time, part-
time, temporary, or intermittent
employees, are subject to an
alcohol misuse prevention program
regardless of the degree of
supervision.
------------------------------------------------------------------------
Discussion of Comments Received
General Overview
The FAA received approximately 30 comments in response to Notice
02-04, including comments from the Air Transport Association of America
(ATA), Regional Airline Association (RAA), National Air Transportation
Association (NATA), Airline Pilots Association, International (ALPA),
and a joint filing by the Aeronautical Repair Station Association
(ARSA) and 14 other entities.
Appendix I--Drug Testing Program
I. General
In Notice 02-04, the FAA proposed to add two paragraphs to this
section: ``Applicable Federal Regulations'' and ``Falsification.''
These paragraphs were designated ``D.'' and ``E.'' respectively.
Proposed Paragraph D. included a list of Federal regulations dealing
with the antidrug and the alcohol misuse prevention programs. Paragraph
E., ``Falsification,'' proposed to specifically prohibit falsification
of any logbook, record, or report required to be maintained under the
regulations to show compliance with appendix I. Similar language
prohibiting falsification is used in 14 CFR 21.2, 61.59, 63.20, and
65.20.
The FAA received only one comment, which was supportive. The FAA is
adopting the changes as proposed.
II. Definitions
Contractor
In Notice 02-04, the FAA proposed to change the term ``Contractor
company'' to ``Contractor'' to emphasize that a contractor can be an
individual or a company who contracts with an aviation employer.
The FAA received one comment regarding the proposed change from
``Contractor company'' to ``Contractor.'' The commenter believed that
the term ``Contractor company'' was adequate.
The FAA has determined that the proposed clarification more clearly
articulates the intended meaning of the term. Therefore, we are
adopting the change as proposed.
Employee
In Notice 02-04, the FAA proposed to change the definition of
``Employee'' to clarify that an employee is either a person hired,
directly or by contract, to perform a safety-sensitive function for an
employer or a person transferred into a position to perform a safety-
sensitive function.
We also proposed eliminating the sentence ``Provided, however, that
an employee who works for an employer who holds a part 135 certificate
and who holds a part 121 certificate is considered to be an employee of
the part 121 certificate holder for purposes of this appendix.'' This
sentence was included at the inception of the drug testing regulations,
when part 121 certificate holders were required to implement drug
testing earlier than part 135 certificate holders. Because all existing
part 121 and part 135 certificate holders have implemented the drug
testing regulations, this language is no longer necessary.
The FAA did not receive any comments on the proposed changes to the
definition of ``Employee.'' We are adopting the changes as proposed.
Employer
In Notice 02-04, the FAA proposed to change the definition of
``Employer.'' The proposed change was intended to make it clear that no
employer can use a contract employee to perform a safety-sensitive
function unless the contract employee: is included under that
employer's FAA-mandated antidrug
[[Page 1843]]
program; or is included under the contractor's FAA-mandated antidrug
program and is performing a safety-sensitive function on behalf of the
contractor (i.e., within the scope of employment with the contractor.)
We proposed to change the definition of ``Employer'' to close a
loophole that was sometimes referred to as ``moonlighting.'' Under the
moonlighting loophole, when an employee was covered under an employer's
drug testing program (Employer A), another employer (Employer B) could
have used that employee to perform safety-sensitive functions even when
the work was unrelated to the employee's work with Employer A. In many
cases, however, Employer A was unaware of its employee's activities for
Employer B. One problem arising from this was that if Employer A
terminated the employee, Employer B might not know that the employee
was no longer covered by Employer A's drug testing program.
Another problem was that, in the event of an accident while an
employee was working for Employer B, Employer B could not have post-
accident tested the employee because the employee was not included in
Employer B's drug testing program. Employer A might not have been aware
of the need to test the employee, or it might not have agreed to test
the employee if the employee had not been performing a safety-sensitive
function within the scope of employment with Employer A. In adopting
the original rule, it was not the FAA's intent to create a situation
where a person performing a safety-sensitive function could avoid being
tested. With adoption of this change, employers will only be permitted
to rely on companies with whom they have contractual relationships to
cover testing of their employees.
The FAA received comments from several submitters, including ARSA
and RAA, on the definition of ``Employer.'' Two commenters approved of
the proposed definition of employer. One of the commenters stated that
the proposed definition clarified the relationship between employees
and employers. Also, this commenter noted ``that the stated problems
with `moonlighting' and the adverse experiences that it has generated
over the past years justify the blanket elimination of the practice of
moonlighting. * * *
ARSA noted that the proposed elimination of the moonlighting
exception would cause great difficulty because, if a non-certificated
subcontractor did not want to have its own program, it would need to be
covered by the programs of all of the contractors for whom it performed
safety-sensitive work. ARSA believed that many of these companies would
refuse to establish programs of their own.
ARSA correctly understands that under the final rule certificated
and non-certificated contractors performing safety-sensitive functions
must either obtain their own drug and alcohol programs or obtain
coverage under each company for whom they are performing safety-
sensitive functions. This is a business choice that each entity must
make. Since the beginning of the drug and alcohol programs, companies
have made these choices. If a certificated or non-certificated
contractor has its own program, it does not need to be included in the
program of each company for whom it works.
In Notice 02-04, the last sentence of the definition of
``Employer'' read as follows: ``An employer may use a contract employee
who is not included under that employer's FAA-mandated antidrug program
to perform a safety-sensitive function only if that contract employee
is subject to the requirements of the contractor's FAA-mandated
antidrug program and is performing work within the scope of employment
with the contractor.'' RAA recommended that the FAA delete the phrase
``and is performing work within the scope of employment with the
contractor.'' RAA believed that the phrase places a burden on an
employer to determine whether the work it requires of the contract
employee is substantially similar to the work the employee performs for
the contractor. RAA believed the language was an attempt to remedy a
post-accident testing issue, and in this light, RAA found the language
``within the scope of employment'' to be ``vague, ambiguous, subject to
multiple interpretations and should be deleted.'' Instead, RAA proposed
that the language of post-accident testing be amended to allow an
employer to post-accident test a contract employee.
The examples provided in Notice 02-04 may have confused some
commenters. The language ``in the scope of employment'' was not
intended to be limited to post-accident testing. Upon further review of
the proposal, we decided to include additional language to better
explain that ``within the scope of employment'' means that it is part
of the employee's job with the contractor to perform a safety-sensitive
function for the employer.
In proposing to revise the definition of ``Employer,'' the FAA
intended to ensure that an individual performing a safety-sensitive
function for an employer is covered by either the employer's program or
the program of the contractor when the individual is performing work
for the employer within the scope of his or her employment with the
contractor. The previous language allowed an employer to use an
individual for any safety-sensitive function, so long as the individual
was covered by someone else's program. Under this final rule, if an
individual is ``performing a safety-sensitive function on behalf of
that contractor (i.e., within the scope of employment with the
contractor),'' then the contractor is fully knowledgeable of what work
the individual is doing, and the contractor can, therefore, remove from
service any individual who tests positive while working for a client.
This way, the regulation permits the employer to use an individual
without directly covering him or her, but also ensures that the
contractor will be in a position to know who is working where, so that
safety and individual privacy are correctly balanced should a positive
test result be received.
Two commenters had concerns about ensuring that contractor
employees are actually covered by the contractor's program. One
commenter suggested that ``language be added to the final rule to
require documentation that a contract employee is enrolled in the
contractor's FAA mandated drug and alcohol testing program.'' The other
commenter questioned whether or not it is an absolute requirement for
FAA-approved repair stations to have actual copies of vendor plans on
file at their facilities or whether an electronic means such as an
updated listing that the FAA could maintain would be considered
acceptable.
The FAA notes an employer must verify that the contract employee is
subject to the contractor's FAA-mandated testing program on an on-going
basis. While the regulation does not require specific documentation to
be kept on file, the employer remains responsible for demonstrating
that it has ensured that it has only used a contract employee who is
included under the contractor's testing programs. In the past, the
FAA's Drug Abatement Division maintained an Internet Web site with a
list of aviation companies that had approved drug and alcohol testing
programs. The intent of this list was to assist employers in
identifying contractors that were operating drug and alcohol testing
programs in compliance with 14 CFR part 121, appendices I and J.
However, the information on this list was current only at the time the
list was placed on the Web site. For example, the list did not indicate
whether the
[[Page 1844]]
company had implemented or continued to implement its drug and alcohol
testing programs. Therefore, the information could not be used to
determine compliance with the regulations, and the FAA removed the list
from the Internet. The FAA has not imposed a specific documentation
requirement for ensuring contractor coverage because we want to give
employers the flexibility to meet this requirement on a continuing
basis in any manner that is practical and effective for each particular
employer.
Another commenter requested that the FAA include within the rule
text itself, the examples provided in the preamble to Notice 02-04. The
FAA considered this proposal and decided that including examples in the
rule text for this definition is unnecessary since we have clarified
this definition in the final rule.
The FAA notes that under this change to the regulation, an employer
who currently has a ``moonlighting'' employee performing a safety-
sensitive function is not required to conduct a pre-employment test on
the employee. However, the employer must include the employee under its
antidrug and alcohol misuse prevention programs. With the effective
date of this final rule, the ``moonlighting'' exception is eliminated
and the employer may not hire or transfer any employee into a safety-
sensitive function before the employer conducts a pre-employment test
on the employee and receives a negative drug test result on the
employee. In addition, one of the commenters stated that as a
consortium administering drug and alcohol services, he has noticed that
Sec. 135.1(c) operators do not read and comply with part 135. The
commenter recommended addressing this concern by adding the term
``scenic aircraft operations'' in the definition of employer when Sec.
135.1(c) is mentioned.
The FAA has determined that it is only necessary to reference Sec.
135.1(c) to describe these employers. Section 135.1(c) refers to ``any
person or entity conducting non-stop sightseeing flights for
compensation or hire in an airplane or rotorcraft that begin and end at
the same airport and are conducted within a 25 statute mile radius of
that airport.'' ``Scenic aircraft operations'' does not accurately
describe these employers. A more elaborate description would not better
notify these commercial operators of their regulatory duty to comply
with the drug and alcohol testing regulations. As commercial operators,
they must read part 135. Section 135.1(c) explicitly directs these
operators to Sec. Sec. 135.249, 135.251, 135.253, 135.255, and
135.353, which require these operators to conduct testing under part
121, appendices I and J. We have concluded that the regulatory
requirements are adequate as stated in the existing regulations.
Consequently, we are not adopting the commenter's suggestion on this
issue.
Therefore, the FAA is adopting the definition of employer as
proposed, with minor editorial changes for clarity.
Other Definitions
We received two comments that suggested we clarify the definition
of ``Safety-sensitive.'' One of the commenters also suggested that we
add definitions for ``Performing maintenance'' and ``Cease to
perform.'' The commenter stated, ``To be able to interpret what is
meant when safety-sensitive is used the reader must be able to
understand the phrase explicitly.'' The commenter also stated,
``without a clear definition of performing maintenance, a clear
understanding of safety sensitive can never be comprehended.''
The FAA has determined that these terms are already sufficiently
defined. The definition of ``Safety-sensitive function'' cross-
references the sections in appendices I and J, respectively, that
describe which employees must be tested. It is not necessary to address
specific examples of the tasks performed within safety-sensitive
functions. Instead, the rule identifies the duties that are subject to
drug and alcohol testing because of their relationship to aviation
safety.
In requesting a definition for ``Performing maintenance'' the
commenter stated, ``Many people can perform regular maintenance on an
aircraft engine and its components. Normally, only one or two of these
individuals `release-to-service' the aircraft engine and/or its
components after this maintenance is performed.'' The commenter noted
that ``performing maintenance is a routine procedure on an aircraft
engine,'' and asked when this becomes safety-sensitive. In addition,
the commenter questioned when an employer should start drug and alcohol
testing.
The commenter seems to be confusing performance of maintenance with
release to service. In fact, release to service is only one aspect of
the broader concepts of maintenance and preventive maintenance, which
are defined by the FAA in 14 CFR Sec. 1.1, and 14 CFR part 43.
Maintenance and preventive maintenance are not defined differently for
the purposes of drug and alcohol testing. Consequently, the FAA has
determined that a definition for ``Performing maintenance'' is not
necessary.
In the course of discussing ``Safety-sensitive'' and ``Performing
maintenance'' the commenter noted that manufacturing duties are ``just
as safety-sensitive, if not more so'' than maintenance duties. The
commenter questioned why the FAA does not require drug testing for
manufacturing duties.
The purpose of this rulemaking was not to add or remove categories
of safety-sensitive employees. Any changes to the types of safety-
sensitive employees who must be subject to testing would need to be
accomplished by notice and comment rulemaking procedures. The FAA did
not propose any such changes; therefore, it would not be appropriate to
consider the commenter's issues in this rulemaking.
In requesting that we define ``Cease to perform,'' the commenter
stated that: ``In a commercial business some procedures are time
critical. In a small business where there are no `extra' people
available to finish a time critical process, removing one person for a
random drug test can have significant financial consequences.''
Under the regulations, the employer is responsible for determining
when to notify its employees to immediately report for random testing.
Therefore, a small business can allow an employee to finish a ``time
critical process'' before notifying the employee to report immediately
for a random test. For further discussion of random testing, see
Section V.B. Consequently, the FAA has determined that a definition for
``Cease to perform'' is not necessary.
Hire
Another commenter suggested that we add a definition of ``Hire'' to
clarify when pre-employment testing needs to be done for a person who
performs services as a volunteer, through barter, or in some other
manner that may not seem to include a clear ``hiring event.'' This
commenter also suggested that we ``specifically prohibit the
performance of safety-sensitive duties by an applicant or as part of
the application process.''
The FAA agrees with the commenter regarding the need for a
definition of ``Hire.'' Therefore, we have added a definition of
``Hire'' to Section II. Definitions. The addition of this definition is
not a substantive change, rather it is a clarification to ensure that
the new pre-employment testing requirement does not inadvertently
eliminate anyone who was required to submit to pre-employment testing
under the 1994 provision. The FAA has
[[Page 1845]]
determined that the rule language and the new definition of hire have
made it clear that an applicant is prohibited from performing safety-
sensitive duties until a pre-employment test is given and a negative
result is received.
III. Employees Who Must Be Tested
In Notice 02-04, the FAA proposed to make it clear that the
employer's decision to include an employee in its drug and alcohol
testing program must be based on the safety-sensitive duties that the
individual performs rather than employment status (full time, part
time, temporary, or intermittent). The proposed language was not
intended to change the current rule's scope.
We received several comments regarding this clarification,
including a comment from RAA. Some commenters supported the
clarification, while others expressed concerns.
RAA stated that the phrase ``regardless of the degree of
supervision'' confuses the reader on exactly which individuals are
required to be tested. RAA saw this language as broadening the scope of
coverage beyond individuals who perform safety-sensitive functions. As
an example, RAA stated that many air carriers do not currently consider
a mechanic's helper as performing a safety-sensitive function, since
any task affecting the aircraft is reviewed and signed off by another
individual licensed to perform a safety-sensitive function. RAA felt
that this change significantly broadened the scope of testing for many
air carriers and would increase their expenses.
One commenter stated that the change makes it clear that the
determination of who needs to be in a testing program is based on the
safety-sensitive duties the individual performs. The commenter noted,
however, that ``helpers'' are not mentioned in the regulatory text and
that this omission could cause some confusion.
Another commenter believed that the rule change would require a
mechanic's helper, who is supervised by a maintenance technician, to be
covered by the drug and alcohol testing requirements.
The FAA's drug and alcohol testing regulations have always required
testing of any employee who performs a safety-sensitive function
regardless of the degree of supervision. Communications with the
aviation industry, as well as compliance inspections and
investigations, show that employers do not always understand which
employees must be tested. Therefore, the FAA is specifying that the
testing obligations apply to any individual who is full-time, part-
time, temporary, intermittent, or in a training status, if that
individual is performing a safety-sensitive function. The revision does
not change the scope of the regulation, it merely clarifies that any
employee performing a safety-sensitive function must be tested even if
that employee is being supervised during the performance of the safety-
sensitive function.
Section III lists safety-sensitive functions and it does not list
job titles. The determination of who should be tested is not based on
the title of the position or the degree of supervision, but the actual
functions performed. For example, it is possible that a mechanic's
helper in one company might not perform safety-sensitive functions and
would not need to be tested, while a mechanic's helper in another
company might perform safety-sensitive functions and, therefore, must
be subject to testing. The revision does not broaden the scope of
testing or the costs associated with testing, but it may help employers
to better understand whether they are properly testing all employees
who perform safety-sensitive functions.
The FAA agrees, however, that revising the regulatory text to
include assistants and helpers would help avoid confusion and this
change is made in the final rule.
A commenter on pre-employment testing stated that, ``in small
companies especially * * * an individual could begin to perform safety-
sensitive duties (without being formally transferred into a safety-
sensitive position). Possible examples include a parts warehouseman who
performs maintenance on an as-needed basis or a reservations clerk who
is trained to do weight and balance calculations.''
The FAA has considered the commenter's concerns. However, we have
not adopted the language proposed by the commenter because we believe
Section III. Employees Who Must Be Tested, clearly states that the
employer must test an employee before allowing the employee to
accomplish any safety-sensitive task, even if the task only is
accomplished on an as-needed basis. For example, a reservations clerk
could be trained in the safety-sensitive duties of weight and balance
calculations. However, the employee would only be tested if the
employer identifies this person as someone who could be called upon to
perform safety-sensitive duties on an as-needed basis. On the other
hand, if the employer has not identified this person as someone who
could be called upon to perform safety-sensitive duties and has not
tested the employee, the employer may not use the person to perform
safety-sensitive duties.
V. Types of Drug Testing Required
A. Pre-Employment Testing
As discussed earlier, approximately 19,400 positive pre-employment
tests have been reported to the FAA in the last decade, demonstrating
that such tests are an effective detection tool. Pre-employment testing
is directly tied to aviation safety, in that it is a gateway to safety-
sensitive positions. Failure of a pre-employment test is a direct
barrier to an individual's entry into safety-sensitive work. Thus, it
is vital that the language requiring pre-employment testing be as clear
as possible in order to maximize the efficiency of its use.
Originally, the antidrug regulation published in 1988 said, ``No
employer may hire any person to perform a function, listed in section
III. of this appendix, unless the applicant passes a drug test for that
employer.'' The regulation required pre-employment testing before an
individual could be hired to perform a safety-sensitive function
specified in the appendix.
In 1994, the FAA revised its antidrug rule to require pre-
employment testing of an individual prior to the first time the
individual performed a safety-sensitive function for an employer
instead of requiring this testing ``prior to hiring.'' Under the 1994
revisions, an individual was required to have a verified negative drug
test result on a pre-employment test prior to performing a safety-
sensitive function, and the employer could not allow the individual to
perform such a function until the employer received the verified
negative pre-employment test result.
Communications with the aviation industry and enforcement cases
have shown that, in the absence of the very clear ``hiring'' event,
some employers have misunderstood the pre-employment testing
requirement. They neglected to conduct a pre-employment test and
receive a negative test result before allowing employees to perform
safety-sensitive functions. In the worst cases, this resulted in the
performance of safety-sensitive functions by employees who subsequently
tested positive for illegal drug use. Before the 1994 change,
misunderstandings were not prevalent. The original language was a
clearer standard for employers to follow. Therefore, the FAA proposed
to change the language in paragraph V.A.1. back to requiring testing
and receipt of a negative drug test result prior to hiring an
individual for a safety-sensitive function.
In paragraph V.A.2., the FAA proposed to require that employers
drug test employees prior to transferring them into safety-sensitive
functions.
[[Page 1846]]
This paragraph proposed to clarify to the employer that testing is
required and a negative test result must be received before an employee
is ``hired'' for a safety-sensitive function, even if that ``hiring''
is simply an internal transfer from a nonsafety-sensitive function to a
safety-sensitive function.
In paragraph V.A.3., the FAA proposed to address circumstances
where individuals are given pre-employment drug tests (and receive
negative test results) but a significant period of time passes between
the date of the test and the date of hire or transfer into a safety-
sensitive function and thus into the employer's FAA-mandated drug
testing program. The FAA proposed 60 days as an acceptable time between
being given a pre-employment test and being brought into a drug testing
program.
The FAA received comments on each of the subparagraphs of V.A.
Several commenters, including the Drug & Alcohol Testing Industry
Association (DATIA) supported the clarification in paragraph V.A.1.
that a negative test result must be received prior to hiring an
employee for a safety-sensitive function, especially in light of the
number of positive pre-employment test results.
Several commenters, including ATA and RAA opposed the requirement
in paragraph V.A.1. to conduct pre-employment testing with a negative
test result received prior to hiring an individual. These commenters
preferred the 1994 version of the regulation, which only required
receiving the negative test result on a pre-employment test prior to
performance.
RAA stated that the FAA's proposal to have a negative drug test
result received prior to hire rather than prior to the first
performance of a safety-sensitive function would severely affect the
ability of its members to hire in an efficient manner. In addition they
stated that this proposal would unnecessarily increase costs to air
carriers, without enhancing safety. RAA noted that, generally, newly-
hired pilots receive two to four weeks of classroom training before
they perform any activity that could be considered a safety-sensitive
function. RAA stated that classroom training generally occurs at the
corporation's headquarters, and, since most of the hires do not live
there, air carriers conduct pre-employment testing on a new hire's
first day of class. They noted that this gives the air carrier ample
time to receive and document an individual's results before any safety-
sensitive work is performed. RAA stated that the proposed rule would
cause air carriers additional costs and administrative burdens because
they must conduct a pre-employment test and receive a negative test
result prior to beginning training of each individual. RAA noted that
air carriers would have to conduct increased numbers of tests. RAA
stated that air carriers would potentially be testing individuals who
will never perform safety-sensitive functions, resulting in unnecessary
costs to air carriers and infringement on the individual's rights.
ATA commented that FAA should not revert to the ``prior to hire''
pre-employment testing language. ATA stated ``that failures to perform
pre-employment testing have not been the result of confusion about when
these tests must be performed, but instead because of a variety of
other reasons: simple human error/forgetfulness, inadequate
administrative systems, or occasionally the need to get someone in
place in a position.'' They believed that ``the change proposed by FAA
will not prevent these kinds of errors from occurring in the future.''
ATA asserted, ``the basic reason for the 1994 language--flexibility
that realistically reflects the overall hiring process--has not changed
and is as valid today as it was in 1994.'' Although ATA noted that FAA
has a laudable goal in trying to reduce employer's errors in conducting
pre-employment testing, they stated this goal ``does not outweigh the
need for flexibility to conduct pre-employment testing in a way that is
operationally efficient and cost-effective.'' ATA stated that the
flexibility the 1994 language afforded its members was critical
``because the hiring and training process for safety-sensitive
employees can be complex and take a long time.'' ATA felt that its
``members need the flexibility to conduct the pre-employment test at a
time that makes sense in the course of the overall hiring process. For
example, the pilot hiring/training process can take anywhere from four
to six months, and even longer on occasion.'' ATA noted that given both
the length of the process and that some individuals ultimately will not
make it through the process, these individuals should not be pre-
employment tested before being hired. ATA also stated that the same
issues and concerns apply to flight attendant and mechanic hiring,
although the hiring/training process may be shorter. For these reasons,
ATA requested that FAA retain the current text of section V.A.1.
FAA enforcement experience shows that pre-employment testing is
more effectively implemented when there is a clear event triggering the
test, such as ``hiring'' an employee. Although some commenters
preferred the 1994 version, the FAA found that the ``prior to
performance'' language caused employers much confusion and made pre-
employment testing violations the most frequently occurring enforcement
cases.
Pre-employment violations are extremely serious because they
indicate that an employee was placed into a safety-sensitive function
without the proper testing. Statistics show that pre-employment testing
yields the largest number and percentage of positive test results, a
larger number and percentage than all other FAA-required drug testing
combined. Pre-employment testing functions as the gatekeeper in the
FAA-required drug testing program because it prevents the entry into
safety-sensitive work of individuals who use illegal drugs. Therefore,
any pre-employment violation poses the risk of permitting the entry of
an illegal drug user into the aviation industry. For these reasons, it
is imperative that we provide employers with a clear and unambiguous
standard for the timing in which to conduct pre-employment testing. We
have determined that the event of hiring an employee provides an
unambiguous standard for the timing of pre-employment testing. Although
the ``prior to hire'' language may mean that some employers may conduct
testing of individuals who do not complete the employer's training
program, this may ultimately save employers money by eliminating
illegal drug users before employers expend time, effort, and funds to
train those individuals. Consequently, because of the safety
implications of allowing undetected drug users to enter into safety-
sensitive functions, the FAA is using the more clear and direct ``prior
to hire'' language.
Furthermore, pre-employment drug testing is a less expensive and
more common prerequisite for employment in the United States today than
it was in 1994. Employers across the United States are finding that
pre-employment, random, and other forms of testing make economic sense.
According to a Substance Abuse and Mental Health Services
Administration (SAMHSA) study, illegal drug use and alcohol misuse cost
United States' private employers billions of dollars each year in costs
associated with absenteeism, on-the-job errors, injuries to employees,
increased insurance costs and workers compensation payments, etc.
Requiring pre-employment testing prior to hiring an individual should
actually save employers from expending salary, benefits, and workers
compensation on active illegal drug users.
[[Page 1847]]
Therefore, the FAA is adopting paragraph V.A.1. as proposed, with
minor editorial changes. Also, we added the words ``conducts a pre-
employment test and'' to make it clear that the test for which the
employer is receiving a verified negative drug test result is a pre-
employment test.
The FAA is adopting paragraph V.A.2. as proposed, with minor
editorial changes. Specifically, we added the words ``conducts a pre-
employment test and'' to clarify that the test for which the employer
is receiving a verified negative drug test result is a pre-employment
test.
Some commenters, including NATA, supported the 60-day provision in
paragraph V.A.3. However, several commenters, including ATA and RAA,
opposed the proposed 60-day provision. ATA stated that the 60-day
period would not have any public safety benefit and would have
additional cost. They recommended that the 60-day period be deleted.
Alternatively, they suggested that the 60-day time period be changed to
180 days because the hiring and training process for pilots and flight
attendants can take up to 6 months.
Another commenter opposed the 60-day provision in V.A.3. because he
believes ``it is not unusual for 60 days to elapse between the time a
pilot or dispatcher candidate walks through the front door, until he/
she is completely checked out in his/her safety-sensitive functions. To
give the newly checked-out employee yet another pre-employment drug
test makes no sense at all.''
RAA opposed the proposed 60-day time frame because this provision
would cause many of its members to conduct more than one pre-employment
test and would require its members to more closely track the time
between pre-employment testing and putting an employee into the testing
program. RAA explained that under Postal regulations its members' new
hires must be pre-employment tested within 90 days. Thus the proposed
60-day window for pre-employment testing new hires is too narrow for
RAA members.
After reviewing the comments, we have determined that 180 days, as
suggested by ATA, is an acceptable time between conducting a pre-
employment test and repeating the test before bringing an individual
into an FAA-mandated drug testing program. While we want to ensure that
there is not a significant delay between the pre-employment test and
the individual being subject to a drug testing program, we want to give
the employer some flexibility. However, the longer the delay between
the pre-employment test and the individual assuming a safety-sensitive
function, the less the deterrence factor because the individual is not
in an on-going testing program. The FAA has determined that increasing
the time period from 60 days to 180 days still provides an acceptable
deterrence factor, while giving the employer more flexibility.
In looking at the proposed pre-employment testing rule text and
accompanying preamble, the FAA has recognized that some of the
discussion about the proposed changes to pre-employment testing may
have caused misunderstandings about pre-employment testing and
performance of a safety-sensitive function. The FAA believes that some
commenters may have misunderstood the proposed 60-day provision as
requiring that an employee must be tested again if the employee does
not begin performing safety-sensitive functions within the 60 days. The
final rule requires a second pre-employment test only when the person
was not actually hired or transferred within the specified period that
is now 180 days. Because of the apparent confusion about the use of the
word ``perform'' in the pre-employment testing context, the FAA has
revised the rule language in paragraph V.A.1. from ``hire any
individual to perform a function listed * * *'' to ``hire any
individual for a safety-sensitive function listed * * *'' We did this
to remove the word ``perform'' from paragraph V.A.1. because it
appeared to cause confusion in paragraph V.A.3. In addition, this
change to paragraph V.A.1. more directly mirrors the proposed language
in V.A.2., which appears to have been clearer.
Therefore, we are adopting the proposed language in paragraph
V.A.3. with the change described above to increase the 60-day period to
180 days.
One commenter correctly recognized that Notice 02-04 proposed
requiring pre-employment testing of any individual hired or transferred
into a safety-sensitive position, even if that individual were rehired
by a former employer. However, when we reviewed the language in
paragraph V.A. we realized that there was a conflict between paragraphs
V.A.1., V.A.2. and V.A.4. The FAA proposed keeping paragraph V.A.2.
with no changes, but redesignating it as V.A.4. Proposed paragraphs
V.A.1. and V.A.2. clearly stated that any individual who is hired or
transferred must be subject to pre-employment testing. Historically,
paragraph V.A.2. (redesignated as V.A.4.) allowed but did not require
an employer to pre-employment test an individual who previously
performed a covered function for the employer and was removed from the
random pool for other than a verified positive test result or a refusal
to submit to testing, such as assignment to a nonsafety-sensitive
function. This allowed an employer to return an individual to a safety-
sensitive function without subjecting that individual to another pre-
employment test.
In this final rule we have revised the language of paragraph V.A.4.
to be consistent with paragraphs V.A.1. and V.A.2. so that an employer
cannot rehire a former employee without a pre-employment test and
receipt of a negative drug test result. The final rule continues to
allow employers to restore a current employee to a safety-sensitive
function without pre-employment testing in limited circumstances.
Specifically, if the employee is removed from the random testing pool
for reasons unrelated to a positive test result or a refusal to test,
and the employee is not a hire or transfer, the employer may put the
employee back in the random testing pool without a pre-employment test.
For example, if an employee is removed from the random pool because of
a work-related injury or family medical leave, the employer may place
that employee back into the random testing pool after the absence, so
long as the employer is not ``hiring'' or ``transferring'' the employee
into a safety-sensitive position.
In addition, in the introductory text to redesignated paragraph
V.A.4., we restored the concept that an employer must receive a
negative test result on a pre-employment test. Historically, the
requirement for the receipt of a negative test result was included in
paragraph V.A.3., but it was inadvertently omitted in the proposal.
Another commenter believed that requiring rehired employees to be
pre-employment tested would be ``cost prohibitive'' and a large number
of employers would need to be educated on this change. Therefore, this
commenter requested a long grace period to allow companies to become
familiar with this change.
The FAA has determined that postponing the effective date of this
provision is not necessary. While all employers governed by the drug
and alcohol testing regulations must become familiar with all the
changes in this final rule, we have no data to suggest that a large
number of pre-employment tests will be triggered by this new provision.
Furthermore, while the commenter notes that she believes the change is
``cost prohibitive'', she does not oppose the change or offer data to
support that a large number of
[[Page 1848]]
employers would need to conduct significantly more pre-employment tests
as a result of this change.
One commenter suggested that we add a definition of ``Hire'' to
clarify who must be pre-employment tested. The FAA agrees with this
commenter. For a discussion of this issue see Section II. Definitions.
There were no changes to paragraphs V.A.4.(b) and (c). They are
adopted as proposed.
In reviewing the draft final rule text, we realized that the
language in paragraph V.A.5., which has been in the regulation for many
years, could have caused some confusion. Specifically, proposed
paragraph V.A.5. required an employer to notify ``each individual
applying to perform a safety-sensitive function at the time of
application that the individual will be required to undergo pre-
employment testing.'' This language was not intended to require
employers who receive hundreds of unsolicited applications every year
to notify each of these individuals of the requirement to test.
Instead, the intent is to ensure that prior to pre-employment testing,
each individual has been notified of the requirement to take that test
and we revised the rule accordingly. Also, we updated the reference in
the last sentence of the proposed paragraph because we redesignated
paragraph V.A.2. as V.A.4. in Notice 02-04. Further we eliminated the
reference to section V.A.1. in the proposal because it was redundant.
In the final rule, we have made minor editorial changes to section
V.A., including substituting the word ``individual'' for the words
``applicant,'' ``person,'' and ``employee,'' as appropriate for
clarity.
The FAA has adopted the provisions proposed in paragraph V.A., Pre-
Employment Testing, with the changes described above and minor
editorial changes.
B. Periodic Testing
In Notice 02-04, the FAA proposed to eliminate paragraph V.B,
Periodic Testing. Periodic testing was important at the beginning of
the program when many people were grandfathered into newly approved
antidrug programs without pre-employment testing. Initially, there was
also a phase-in period for implementing random testing. Employers were
not required to meet the annual random testing rate until the last
collection at the end of the first year of testing. Thus, it was likely
that a pilot would not be tested in the first year of testing. Because
all flight crewmembers are subject to pre-employment testing and annual
random testing, the FAA has determined that the elimination of periodic
drug testing at this time will not compromise safety and will be a cost
benefit to those aviation industry employers implementing drug
programs. Also, there has never been a periodic testing requirement in
appendix J. Because of the elimination of periodic testing, the
remaining paragraphs in this section are being relettered accordingly.
The FAA received several comments, including one from ATA,
supporting the proposed elimination of periodic testing. We agreed with
the commenters and are adopting the changes as proposed.
C. Random Testing
In Notice 02-04, the FAA proposed adding a paragraph to the random
testing section for consistency with appendix J. Under the proposed
provision, each employer must ensure that each safety-sensitive
employee who is notified of selection for random drug testing proceeds
to the collection site immediately. Under the proposal, even if the
employee is performing a safety-sensitive function at the time of the
notification, the employer must ensure that the employee ceases to
perform the safety-sensitive function and proceeds to the collection
site as soon as possible. A similar requirement has been included in
appendix J since its issuance in 1994 and has worked well. Two
commenters supported the proposed change to the random drug testing
section. One commenter stated that the proposed change would clear up
the misunderstanding of the regulation that some companies have had.
ALPA submitted a comment generally opposing random testing and
specifically stated: ``We suggest deleting this new proposed language,
and replacing it with the requirement that the employee report for the
drug or alcohol test as soon as is practicable after notification of
the test.'' ALPA supported the use of the Aircraft Communications
Addressing and Reporting System (ACARS) ``to notify pilots flying an
aircraft of their obligation to report for a random drug and/or alcohol
test upon landing. * * * By using on-board notification to crewmembers
of their obligation to submit to urine testing upon landing, the
crewmembers are able to defer emptying their bladders and avoid
subsequent problems with producing the requisite urine specimen. Such
notification and testing has been working well for employees and air
carriers.'' ALPA noted that ``the new proposed language would prevent
the continued use of this means of notification, as it would require
the pilots to cease operating the aircraft after notification of
testing.'' Finally, ALPA concluded ``there is no reason to preclude a
pilot from completing an assigned flight segment and then reporting for
the test as soon as practicable.''
Another commenter noted that ``some level of management oversight
and control as to the timeframe allowed after a random drug test
notification'' is needed in the random testing section.
The FAA has determined that the proposed rule language continues to
provide the employer a reasonable degree of control over when to notify
an employee of the need to take a random drug test. The proposed rule
language does not preclude pilots from completing a flight segment in
progress in order to submit to random testing. Employers have always
had the option of notifying employees of random testing after
completion of their safety-sensitive duties. In addition, the proposed
rule language does not permit advance notification of random testing of
pilots and flight attendants. Such advance notification is inherently
unfair because pilots and flight attendants are only two of the eight
categories of safety-sensitive employees. In other words, six
categories of employees are not accessible by ACARS advance
notification. In addition to the unfairness issue, ACARS advance
notification has been linked, through enforcement cases, to dilutions,
substitutions, and adulterations. ACARS notification could provide the
employee with an opportunity to consume large quantities of fluid
immediately before the test, which may dilute the specimen. Also, ACARS
notification could provide the employee with an opportunity to
substitute a specimen or to obtain access to adulterants to subvert the
testing process.
Another commenter questioned whether ``all personnel performing a
safety-sensitive function for a repair station holding an FAA-approved
program must be tested equally and throughout the year, regardless of
the volume of work performed by contract to an air carrier, and
regardless of whether a person actually performs a safety-sensitive
function directly on an air carrier's aircraft.''
The FAA notes that if an employer, who conducts testing in
accordance with FAA requirements, decides that an employee will be
performing safety-sensitive functions at any time, the employer must
ensure that the employee is subject to random testing throughout the
year. The continuity of
[[Page 1849]]
the testing does not depend on the volume of work, but does depend on
whether the employee has been designated by the employer to accomplish
safety-sensitive functions. Thus, once an employer decides that an
employee is subject to the employer's FAA-required testing program, the
employee must remain subject to all forms of FAA-required testing,
including random testing, as long as the employee may be called upon to
perform safety-sensitive functions. The FAA has made it clear in
Section III. Employees Who Must Be Tested, that employees who are
designated as available to perform safety-sensitive functions even
part-time or intermittently must be tested. The FAA has determined that
the proposed random testing language does not need to be revised in
response to this comment. Therefore, we are adopting the random testing
provision as proposed.
E. Testing Based on Reasonable Cause
In Notice 02-04, the FAA proposed to change the reasonable cause
language. Specifically, we proposed to allow, but not require, an
employer to make a reasonable cause determination regarding a
contractor's employee. The employer would be allowed to refer a
contract employee for testing under the contractor's drug and alcohol
programs without waiting for a supervisor employed by the contractor to
confirm the employer's determination.
The FAA received comments from several submitters, including ATA,
RAA, NATA, and DATIA, on the proposed change to reasonable cause
testing. Four of the commenters, including NATA and DATIA, supported
the concept of allowing an employer to have its supervisors make
reasonable cause determinations regarding contract employees and refer
them for testing under the contractor's drug and alcohol programs.
Two of the commenters, however, suggested that the FAA did not go
far enough because the proposed reasonable cause testing of contractors
provision was permissive, not mandatory. One commenter recommended that
the employer should be required to make a reasonable cause
determination regarding any contract employee who performs a safety-
sensitive function on the employer's premises and under the employer's
supervision. Also, the commenter recommended that the employer be
required to refer the contract employee for a reasonable cause test
under the contractor's program. Another commenter similarly believed
that the provision should be mandatory and noted that the proposed rule
language did not ``indicate what steps the employer can or must take
after the contractor employee has been identified as a possible drug or
alcohol user.'' The commenter listed specific steps for testing the
contract employee and for providing the test results to the relevant
employers.
ATA and RAA opposed the proposed change to reasonable cause
testing. ATA and RAA both had concerns over the legal implications of
the proposed permissive language. In addition, ATA stated that it
``opposes this proposal because it would place our members in the
middle of a sensitive employer-employee situation with regard to
someone else's employee. This provision, if adopted, would create
administrative burdens and legal risks that are unacceptable * * *
Moreover, even if an airline-employer makes a proper and timely
referral there is no guarantee that the contractor will conduct the
testing in a timely manner.''
After reviewing the comments received, the FAA agrees with
commenters that the permissive nature of this provision is not
advisable because there are too many contingencies in the proposal. For
example, as ATA pointed out, even if an employer makes a reasonable
cause determination on a contract employee, there is no guarantee that
the contractor will conduct the testing in a timely manner. Therefore,
the FAA has not adopted the proposed reasonable cause testing of
contract employees provision.
It is important to note that the FAA proposed the change because
there was confusion as to who was responsible for making the
determination and conducting reasonable cause testing of contract
employees on an employer's premises. The FAA remains concerned that
some contract employees are not being tested for reasonable cause
because their actual employers are not on-site. The FAA may revisit
this issue in future rulemaking. In the meantime, the FAA encourages
employers to continue to make reasonable cause determinations regarding
their own employees and continue to contact their contractors regarding
any reasonable cause concerns that may arise regarding contract
employees.
In addition, in Notice 02-04, we proposed to delete the following
two sentences from paragraph V.D.1.: ``Each employer shall test an
employee's specimen for the presence of marijuana, cocaine, opiates,
phencyclidine (PCP), and amphetamines, or a metabolite of those drugs.
An employer may test an employee's specimen for the presence of other
prohibited drugs or drug metabolites only in accordance with this
appendix and the DOT Procedures for Transportation Workplace Drug
Testing Programs' (49 CFR part 40).'' The first sentence is redundant
of the requirements in 49 CFR part 40. The second sentence is no longer
appropriate.
The FAA did not receive any comments on the proposed paragraph
V.D.1. Therefore, the FAA has adopted this change to paragraph V.D.1.
as proposed, now redesignated as paragraph V.D.
IX. Implementing an Antidrug Program
In Notice 02-04, the FAA proposed eliminating the requirement that
each employer submit an antidrug program plan to the FAA for approval.
Non-certificated employers or contractors conducting testing will be
required to register with the FAA. Certificate holders must obtain an
Antidrug and Alcohol Misuse Prevention Program Operations Specification
(OpSpec). This provides the FAA with the information it needs for
surveillance of these programs. In addition, we proposed changing the
title of this section so it more accurately reflects the section's
content.
Replacement of Plan Approvals With OpSpecs and Registrations
We proposed eliminating the requirement for each employer to submit
an antidrug program to the FAA for approval. Part 121 and part 135
certificate holders, and part 145 certificate holders who decide to
have their own FAA testing program, will be tracked in the FAA's
Operations Specifications Sub-System (OPSS). By using OPSS, certificate
holders will not need to go to two separate FAA offices, the Flight
Standards Service and the Office of Aerospace Medicine, every time they
make a change to data regarding their company.
New and existing part 121 and part 135 certificate holders must
obtain an Antidrug and Alcohol Misuse Prevention Program OpSpec. The
air carrier's FAA Principal Operations Inspector issues the OpSpec. New
and existing part 145 certificate holders who choose to have their own
FAA testing program must obtain an Antidrug and Alcohol Misuse
Prevention Program OpSpec from their FAA Principal Maintenance
Inspector. Once the Antidrug and Alcohol Misuse Prevention Program
OpSpec has been issued, the certificate holder must contact its FAA
Principal Operations Inspector or Principal Maintenance Inspector, as
applicable, to make any
[[Page 1850]]
future changes to the OpSpec. Under the final rule, an entity will only
be required to file one OpSpec that covers both the drug and the
alcohol programs. To clarify the certificate holder's responsibility to
update its Antidrug and Alcohol Misuse Prevention Program OpSpec, we
added section IX.D.4. to the final rule. This clarification
incorporated language from the sample Antidrug and Alcohol Misuse
Prevention Program OpSpec, included in Notice 02-04, regarding the
certificate holder's responsibility to update its OpSpec whenever
changes to the data occur.
The FAA also proposed changing the antidrug program plan and
alcohol misuse prevention program certification statement requirements
for new and existing: (1) Air traffic control facilities not operated
by the FAA or by or under contract to the U.S. military; (2)
sightseeing operators as defined by Sec. 135.1(c); and (3) non-
certificated contractors that elect to have an antidrug and alcohol
misuse prevention program. Under the final rule, the first time an
entity registers it will only be required to file one registration that
covers both the drug and the alcohol programs. However, a company must
amend its registration information whenever changes to the data in the
registration occur.
Generally, the registration requires less information than the
antidrug plan required. The only new item (for the antidrug program) is
a statement signed by a company representative that the company will
comply with part 121, appendices I and J, and 49 CFR part 40. Companies
will be able to meet their registration requirements for both the
antidrug program and the alcohol misuse prevention program by signing
one statement.
Every employer must either register with the FAA or obtain an
Antidrug and Alcohol Misuse Prevention Program OpSpec, as appropriate.
Part 145 repair stations and non-certificated contractor companies that
are covered under an employer's antidrug and alcohol misuse prevention
program may continue to be covered under the employer's program. As
long as they continue to be covered under an employer's program and do
not have their own programs, they need not register with the FAA or
obtain an Antidrug and Alcohol Misuse Prevention Program OpSpec. A part
145 certificate holder or a non-certificated contractor that performs
safety-sensitive functions for an employer may choose to have its own
testing programs instead of being covered by an employer's program. In
that case, the part 145 certificate holder would be required to obtain
an Antidrug and Alcohol Misuse Prevention Program OpSpec and the non-
certificated contractor would register with the FAA as outlined in the
rule.
The FAA received several comments on Section IX. DATIA supported
the proposal to eliminate antidrug plan approvals. Another commenter
supported the elimination of antidrug plan approvals and noted that the
proposed changes standardized the process for employers and the FAA.
The FAA received several comments concerning OpSpecs. RAA viewed
the OpSpec requirement as an administrative procedure that could be
handled in a variety of other more effective methods instead of being
codified. RAA noted that airline individuals who specialize in aircraft
navigational and air traffic procedures are typically responsible for
maintaining the OpSpecs. RAA also noted that administering the antidrug
and alcohol misuse prevention programs is typically accomplished by an
individual in human resources. RAA stated that, while such individuals
can coordinate their duties within the company, it sees no reason why
an administrative task has to be regulated. Therefore, RAA requested
that references to the OpSpec be deleted from the adopted rule.
In the past, the FAA has required that certificate holders and
other entities receive FAA-approval of their antidrug and alcohol
misuse prevention programs. Although the FAA has eliminated the
regulatory requirement for a company to obtain FAA approval of these
programs, the FAA needs to continue to track companies with programs.
The mechanisms in this rule for the FAA to track companies with
programs are OpSpecs for certificate holders or registration for other
entities. This results in a more streamlined process than the old plan
approval process while still providing the FAA with the necessary
information. The information received continues to be important to the
FAA, and we do not consider this new process merely an administrative
task that can be accomplished without regulation. In response to RAA's
concern regarding personnel responsibilities, the FAA has determined
that while the employer may have to adjust responsibilities within its
organization, this initial burden is significantly offset by the
reduction in the overall paperwork burden. Therefore, the FAA is
adopting the requirement for an Antidrug and Alcohol Misuse Prevention
Program OpSpec or registration to replace FAA approval.
ATA supported the proposal to track pertinent information through
the OPSS and to eliminate the requirement for companies to have FAA-
approved plans. However, ATA was concerned that this administrative
change will create confusion as to who will enforce this requirement
within the FAA. ATA recommended that FAA clearly state in the final
rule that FAA Principal Operations Inspectors are not authorized to
require different or additional information and that the Drug Abatement
Division has exclusive authority over air carrier OpSpecs submitted in
compliance with this appendix.
Another commenter did not agree with adding the new OpSpec because
the commenter believed that the new OpSpec intermingled the
responsibilities of the Drug Abatement Division and FAA Principal
Maintenance Inspectors.
In response to these commenters, the FAA notes that under the new
OpSpec process, the role of the local Flight Standards District Office
is limited to creating and updating the actual Antidrug and Alcohol
Misuse Prevention Program OpSpec. The FAA Principal Operations
Inspector and the FAA Principal Maintenance Inspector have no
responsibilities for oversight of a company's drug and alcohol testing
programs. All oversight responsibility remains with the Drug Abatement
Division. We do not see an intermingling of responsibilities, rather
the new OpSpec process offers separate but complimentary interaction
between the Drug Abatement Division and the Flight Standards Service.
Therefore, it is not necessary to add rule language that clarifies
internal FAA responsibilities for the OpSpec.
NATA agreed with the FAA that there will be a reduction in the
paperwork burden for certificate holders if programs no longer require
FAA approval and issuance of plan numbers. However, NATA objected to
the FAA placing on the certificate holders the burden of obtaining the
new OpSpec. NATA noted that since this is a change mandated by the FAA,
FAA inspectors should initiate contact with certificate holders under
their supervision as they routinely do when new or changed OpSpecs are
issued. NATA requested that the proposed language indicating that
certificate holders bear the responsibility for obtaining the OpSpec be
revised to clarify that existing operators will be issued the OpSpec by
their primary inspector.
Although the FAA's Principal Operations Inspectors or Principal
Maintenance Inspectors will continue to
[[Page 1851]]
conduct their routine interaction with certificate holders, the
information needed to prepare the OpSpec must come from the certificate
holder. While this might be an inconvenience, as the commenter noted,
there will be a reduction in the certificate holder's overall paperwork
burden by eliminating the plan approval process. The ultimate
beneficiary of the new OpSpec process will be the certificated entity,
which will only be required to update its data in one FAA tracking
system, and will no longer be required to provide information for a
separate Drug Abatement Division tracking system.
Several commenters, including ATA and NATA, asked procedural
questions about implementing the new OpSpec and registration processes.
ATA recommended that FAA identify a person within the Drug Abatement
Division for air carriers to contact in the event of a problem
regarding its OpSpec under this appendix. ATA stated that, to avoid
confusion, the FAA should specify the documentation that contractors
must provide to employers to prove that they have compliant antidrug
and alcohol misuse prevention programs in place. NATA commented that
additional information, such as a model certification statement, would
be particularly helpful to small operators, including Sec. 135.1(c)
operators.
The changes requested by the commenters can be accomplished without
modifying the regulatory text. Once the rule becomes effective, the
public can obtain information about process and implementation by
contacting the Drug Abatement Division at the address in Section IX or
by referencing the Drug Abatement Division's Web site: http://www.faa.gov/avr/aam/adap
.
Another commenter recommended the OpSpec identify the certified
laboratory and medical review officer (MRO) that the company is using,
and suggested that the FAA Principal Operations Inspector provide a
written confirmation of approval/acceptance of the OpSpec. One
commenter recommended that the FAA allow a transition period for
companies that will be required to have an Antidrug and Alcohol Misuse
Prevention Program OpSpec, while another commenter noted that companies
were already obtaining this OpSpec.
In response to the recommendation that the OpSpec contain more
detailed information and written confirmation of approval/acceptance,
the FAA has determined that providing detailed information, including
the current laboratory and MRO, could defeat the simplicity of the
OpSpec and registration requirement under the new rule. Under the
antidrug plan approval process, this level of detail was required. This
led to each company filing numerous amendments because such detailed
information changed frequently. Also, waiting for the FAA to approve
the contents of the antidrug plan added delay.
In deciding to move to the OpSpec and registration requirement, the
FAA carefully considered whether it should be evaluating/approving the
written information submitted at the beginning of the testing program.
The FAA decided that the best evaluation of how a company is testing is
done on-site at the company during FAA inspections. Successful
implementation of a testing program is the employer's responsibility,
and is not shown merely on a paper submission at the beginning of a
testing program. Therefore, the FAA decided to collect only enough
information in the registration statements and OpSpecs to provide a
starting point for our inspections.
The FAA notes that many companies have already obtained the
Antidrug and Alcohol Misuse Prevention Program OpSpec. In addition,
because the requirement will not become effective until 30 days after
this final rule is published, there is a built-in transitional period
to obtain an OpSpec for any company that has not already obtained an
Antidrug and Alcohol Misuse Prevention Program OpSpec.
One commenter was concerned that the plan approval process took a
long time and may have caused the industry to lose revenue because
operations could not begin until the FAA approved the antidrug plans.
This commenter expressed hope that the OpSpecs and registration
processes would streamline and expedite the beginning of operations,
thereby minimizing any time delays.
The FAA is going forward with the OpSpec and registration processes
as proposed, with minor clarifying changes, because we have determined
that these, in fact, will streamline the gathering of basic information
that the FAA needs for monitoring the compliance of companies
conducting FAA-required drug and alcohol testing. At the same time they
will lessen the burden on the operator. As suggested by one of the
commenters, we expect that the OpSpec and registration processes will
expedite the beginning of operations for employers.
Elimination of 60-Day Grace Period for Contractors
The FAA also proposed eliminating the 60 days allowed for new
employers to ensure that their contractors are subject to an antidrug
program. This provision provided a grace period that was important at
the inception of the antidrug regulations in 1988 because drug testing
was a new regulatory requirement for employers and their contractors.
However, since contractor programs must be implemented by the time the
contractor performs safety-sensitive functions for an employer, this
grace period is no longer necessary or appropriate.
The FAA received a supporting comment from DATIA on the proposed
elimination of the 60-day grace period for contractors of new employers
to implement an antidrug program. The FAA proposed this change in
Section IX for employers to ensure that their contractors are covered
by an FAA-mandated antidrug program. We are adopting it as proposed.
Adoption of the Plain Language Format for Section IX
The FAA proposed two formats for the rule language in this section.
While both proposals had the same requirements, they differed greatly
in format. The first option was presented in table format as much as
possible. The second option followed the format of the current rule.
The FAA received a comment objecting to inclusion of the words ``a
non-certificated repair station, * * * or any other individual or
company that provides safety-sensitive service.'' This commenter
believed that this language, as posed in option 1, added a new
requirement to the regulations.
As stated above, the options offered different formats but had the
same requirements. Since the beginning of the program, certificated and
non-certificated contractors have been allowed, but not required, to
submit and implement antidrug programs under 14 CFR part 121, Appendix
I, Sections IX.A.3-4. Therefore, this is not a new requirement.
In the final rule we made a clarifying change to section IX.A. to
remind existing companies that they must continue to follow the
regulatory provisions in appendix I. In Notice 02-04, we articulated
this requirement in option 2, but we did not explicitly address it in
option 1. Therefore, we have added it to section IX.A. in the final
rule and changed sections IX.C.2.a.iii. and b.iii. for consistency.
The FAA received comments from several submitters, including NATA
and
[[Page 1852]]
DATIA, supporting the table format. Therefore, the FAA is adopting the
table format as proposed with minor editorial changes.
The FAA also received a comment from RAA requesting that we give
operators the option of submitting information electronically. RAA
noted that even if FAA is not now capable of receiving information
electronically, we should nonetheless write it into the rule so that
when we do have the capability, operators can submit it to the FAA
without first requesting an exemption to the rule.
The FAA has determined that it is premature to incorporate into the
current rule text any specific reference to electronic filings.
However, we agree with the spirit of RAA's comment that the final rule
should allow room for developments in acceptance and retention of
electronic filings. Currently, we are not able to receive registration
information electronically. The FAA is eager to pursue avenues for
electronic filing, and therefore, in response to RAA's suggestion, we
have added language in paragraph IX.E.2. to allow for registration
information to be sent ``in the form and manner prescribed by the
Administrator.''
Appendix J--Alcohol Misuse Prevention Program
I. General
In Notice 02-04, the FAA proposed the following changes in
paragraph D. Definitions. We proposed to eliminate the definition of
``Administrator'' because it is defined elsewhere in 14 CFR. We also
proposed to change ``Contractor company'' to ``contractor'' to
emphasize that a contractor could be an individual.
The FAA did not receive any comments on the proposed changes and we
adopt them as proposed.
II. Covered Employees
In Notice 02-04, we proposed to make it clear in appendix J as we
did with appendix I that including an employee in a drug and alcohol
testing program depends on his or her duties not employment status
(full time, part time, temporary, or intermittent). In this final rule,
we have further modified appendix J to ensure that this is clear. We
made a similar change in appendix I in response to a comment.
III. Tests Required
D. Reasonable Suspicion Testing
In Notice 02-04, the FAA proposed to change the reasonable
suspicion language to allow, but not require, an employer to have its
supervisors make reasonable suspicion determinations and refer a
contract employee for testing under the contractor's alcohol misuse
prevention program. This change was proposed because there has been
confusion about the reasonable suspicion testing of contract employees
on an employer's premises.
For the reasons discussed in the preamble to section V.E. of
appendix I, the FAA has not adopted the proposed reasonable suspicion
language.
IV. Handling of Testing Results, Record Retention, and Confidentiality
In Notice 02-04, the FAA proposed to change paragraph B.4. by
adding the sentence ``No other form, including another DOT Operating
Administration's form, is acceptable for submission to the FAA.'' The
FAA has already made this change in a final rule published December 31,
2003 (68 FR 75455).
VII. Implementing an Alcohol Misuse Prevention Program
In Notice 02-04, the FAA proposed eliminating the requirement that
each employer submit an Alcohol Misuse Prevention Program Certification
Statement. As with the elimination of program approval under appendix
I, each employer or contractor conducting alcohol testing will be
required to either register with the FAA or obtain an Antidrug and
Alcohol Misuse Prevention Program OpSpec, as specified in the
regulation.
Many of the comments on appendix I addressed this change in
appendix J as well. For the reasons discussed under appendix I, we have
also adopted this change for appendix J.
In Notice 02-04, the FAA also proposed eliminating the 180 days
allowed for new employers to ensure that their contractors are subject
to an alcohol misuse prevention program. This provision provided a
grace period that was important at the inception of the alcohol misuse
prevention program regulations in 1994 because alcohol testing was a
new regulatory requirement for employers and their contractors.
However, since contractor programs must now be implemented by the time
the contractor performs safety-sensitive functions for an employer,
this grace period no longer applies and so the language is being
removed.
The FAA received one comment on the proposed elimination of the
180-day timeframe. The commenter, DATIA, supported the proposed change.
The FAA is adopting the elimination of the 180-day timeframe as
proposed.
As with appendix I, the FAA proposed two formats for the rule
language in this section, one mostly in table format, the other in the
format of the current rule. Several commenters supported the table
format, and we are adopting it for the final rule.
Miscellaneous Comments
The FAA received a number of comments that are outside the scope of
the proposal. We have not addressed them in this final rule.
Paperwork Reduction Act
This final rule contains information collection activities subject
to the Paperwork Reduction Act (44 U.S.C. 3507(d)). In accordance with
the Paperwork Reduction Act, documentation describing the information
collection activities was submitted to the Office of Management and
Budget (OMB) for review and approval, and assigned control number 2120-
0685.
This rule constitutes a change to the data collection burden for
existing and new companies required or electing to implement antidrug
and alcohol misuse prevention programs. The respondents are part 121
and 135 certificate holders, operators as defined in Sec. 135.1(c),
air traffic control facilities not operated by the FAA or by or under
contract to the U. S. military and part 145 certificate holders and
non-certificated contractors that elect to obtain antidrug and alcohol
misuse prevention programs. Part 121, 135 and 145 certificate holders
will obtain an Operations Specification (OpSpec). Operators as defined
in Sec. 135.1(c), air traffic control facilities not operated by the
FAA or by or under contract to the U. S. military, and non-certificated
contractors will register with the FAA.
A protection provided by the Paperwork Reduction Act states that an
agency may not conduct or sponsor and a person is not required to
respond to a collection of information unless it displays a currently
valid OMB control number. As stated above, the OMB control numbers is
2120-0685.
International Compatibility
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to comply with
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
reviewed the corresponding ICAO Standards and Recommended Practices and
has identified no differences with these regulations.
[[Page 1853]]
Executive Order 12866 and DOT Regulatory Policies and Procedures
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs that each Federal agency
shall propose or adopt a regulation only upon a reasoned determination
that the benefits of the intended regulation justify its costs. Second,
the Regulatory Flexibility Act of 1980 requires agencies to analyze the
economic impact of regulatory changes on small entities. Third, the
Trade Agreements Act (19 U.S.C. Sec. Sec. 2531-2533) prohibits
agencies from setting standards that create unnecessary obstacles to
the foreign commerce of the United States. In developing U.S.
standards, this Trade Act requires agencies to consider international
standards and, where appropriate, that they be the basis of U.S.
standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L.
104-4) requires agencies to prepare a written assessment of the costs,
benefits, and other effects of proposed or final rules that include a
Federal mandate likely to result in the expenditure by State, local, or
tribal governments, in the aggregate, or by the private sector, of $100
million or more annually (adjusted for inflation.)
In conducting these analyses, FAA has determined this rule: (1) Has
benefits that justify its costs, is not a ``significant regulatory
action'' as defined in section 3(f) of Executive Order 12866, and is
not ``significant'' as defined in DOT's Regulatory Policies and
Procedures; (2) will not have a significant economic impact on a
substantial number of small entities; (3) will not reduce barriers to
international trade; and does not impose an unfunded mandate on state,
local, or tribal governments, or on the private sector. These analyses,
available in the docket, are summarized below.
Cost of Compliance
The FAA is changing several sections of 14 CFR part 121, appendices
I and J; not all of these changes will have cost implications. Some of
the changes to appendix I parallel changes to appendix J; the analysis
will combine the sectional changes where appropriate. Information
related to the number of companies, the costs of tests, and the
salaries of the employees can be found in the full regulatory
evaluation, found in the docket.
(1) The FAA is amending appendix I, section II, to ensure that
employers test all employees, including contractor employees, unless
the employees are in a testing program for a contractor to the
employer; this change will impose costs. The current provision, which
has allowed ``moonlighting,'' is confusing to the industry and is a
potential loophole in employee coverage. In most circumstances, the
second employer does not and cannot know the employee's status with the
first employer.
Compliance inspections and investigations also show that employers
confuse the regulatory provisions between the drug and alcohol rules.
The current drug rule allows ``moonlighting,'' while the alcohol rule
does not permit it. Moonlighting occurs mostly among small employers,
who often do not know the other employers that the moonlighting
employee is working for. Consequently, these employees can potentially
escape testing.
Only certain types of employees tend to moonlight; these include
part 121/135 pilots, mechanics, screeners, sightseer pilots, and part
135 on-demand pilots, primarily single owner operators. The FAA
believes that the number of moonlighting employees is small, but does
not know exactly how many of these employees moonlight. Accordingly,
the FAA will base costs on an additional 1 percent of these employees
having additional drug tests.
The FAA projects over 10 years, the total number of tests, due to
the requirement that moonlighting employees be tested, will sum to
11,100, costing $499,200. Costs for employee time for this testing will
sum to $147,200 over 10 years. Total 10-year costs of testing these
employees will sum to $646,300 (present value, $449,900).
(2) The FAA is eliminating section V. B. of appendix I, periodic
testing. The current regulation requires that a new employer must
periodically drug test part 67 medical certificate holders during the
first calendar year of implementation of its program. Periodic testing
was important at the beginning of the program when many people were
grandfathered into newly approved antidrug programs without pre-
employment testing. Since all flightcrew members are currently subject
to pre-employment testing and annual random testing, the FAA believes
that the elimination of periodic drug testing will not compromise
safety and will be a cost savings. Cost savings from the elimination of
periodic drug testing, over ten years, sums to $122,300 (present value,
$85,900).
(3) The FAA will make several changes to section IX of appendix I
and section VII of appendix J; two of these changes will have cost
implications. Provisions that affect part 121, 135, and 145 certificate
holders will be covered in section (3a); and operators as defined by
Sec. 135.1(c), air traffic control facilities not operated by the FAA
or by or under contract to the U.S. military, and non-certificated
contractors in section (3b).
(3a) Part 121, 135, and 145 certificate holders will no longer have
to submit antidrug and alcohol misuse prevention programs to the FAA
for approval. The FAA instead will track these certificate holders
using the Operations Specifications Sub-System (OPSS). Using this
system will allow the FAA to quickly make a change to a specific type
of certificate holders' operations specifications.
Companies with antidrug and alcohol misuse prevention programs will
incur additional costs from these rule changes. In the first year of
this rule, these companies will have to file new information. New
companies will have to do the same in their first year. When the number
of employees at a company changes to fewer than 50 or greater than or
equal to 50, they will have to send ``employment change reports.''
The 7,240 existing plan holders currently submit 490 amendments
each year. The FAA anticipates that 33 of these amendments will be
employment change reports each year after their initial year. In
addition, 484 companies submit new plans each year.
Each of the existing plan holders will have to spend time to
produce the required information, file and store it, and submit it to
the FAA. Total first year costs will be $39,700. Subsequent year costs,
which will encompass processing new plans, employment change reports,
and amendments sum to $5,300. Ten-year costs, at the company level,
equal $87,900 (present value, $69,700).
At the FAA, the information being submitted to OPSS will have to be
processed. First year costs will be $21,400, while each subsequent year
cost will be about $2,900; costs over ten years sum to $47,400 (present
value, $37,600).
All companies will also incur some cost savings, for they will no
longer have to file a combined drug plan and an alcohol certification
statement to the FAA. Thus, each of the existing companies will no
longer have to spend time to produce these plans and certification
statements. Total first year cost savings will be $238,100. In
subsequent years, new companies would have had to handle plans, while
existing companies would have had to process amendments; total annual
costs savings, from not having to file these amendments and new plans,
sum to $18,400. Ten year cost savings, at the
[[Page 1854]]
company level, equal $406,000 (present value, $336,100).
Ten year net cost savings sum to $270,700 (present value,
$228,800).
(3b) These rule changes also will eliminate the antidrug program
plan and alcohol misuse prevention program certification statement
requirements for new and existing non-Federal air traffic control
facilities and operators as defined by Sec. 135.1(c). Instead, as with
certificate holders, a single registration statement requirement will
suffice for both programs. In addition, the FAA will require new and
existing non-certificated contractors that elect to have an antidrug
and alcohol misuse prevention program to register with the FAA.
The FAA has identified 334 part 135.1(c) operators and 1,228
contractors that will be affected by these rule changes; the
contractors include 21 Air Traffic Control (ATC) contractors, and 1,207
other contractors. The FAA does not expect any employment change
reports from any of these companies.
Each of the existing plan holders will have to spend time to
produce the required information, file and store it, and submit it to
the FAA. Total first year costs will be $11,000, while total annual
costs for existing company amendments and new company plans sum to
$1,500. Ten year costs equal $24,200 (present value, $19,200).
At the FAA, first year costs will be $5,900, while each subsequent
year cost will be about $800. Costs over ten years sum to $13,000
(present value, $10,400).
These companies will no longer have to file an alcohol
certification statement and a drug plan, resulting in cost savings.
Total first year cost savings will be $66,000, while total annual costs
for the existing company amendments and new company plans sum to
$5,400. Ten year cost savings equal $111,900 (present value, $92,700).
Ten year net cost savings sum to $74,700 (present value, $63,200).
Total cost for these rule changes sums to $178,600 (net present
cost, $72,000). The total cost to the industry sums to $239,100
(present value, $119,900) and total costs savings to the FAA sums to
$60,400 (present value, $48,000).
Analysis of Benefits
The FAA believes that these new rules can result in enhanced safety
and concludes that several specific benefits will accrue from these
rule changes.
The specific changes to pre-employment testing will result in a
number of benefits. The FAA believes that certain employers had
misunderstood the current requirements and that the requirements will
be better understood. This will reduce the number of pre-employment
enforcement cases. From 2000 through 2002, the FAA initiated 197 legal
enforcement cases dealing with pre-employment violations, or an average
of 66 cases per year. The FAA believes that these changes can reduce
the number of legal enforcement cases, saving both the FAA and the
industry time and resources.
Pre-employment testing acts as the ``gatekeeper.'' Since this type
of testing has the largest number of positives, it is a major tool that
would keep drug users from getting into the aviation industry in the
first place. Most of the other drug and alcohol tests are largely
deterrence based. Clarifying pre-employment requirements is important,
as the process will reduce the number of mistakes by employers that can
lead to employees not being pre-employment tested, the consequences
including both potential safety impacts and enforcement actions for
non-compliance.
Companies no longer having to file antidrug plans and alcohol
misuse prevention program certification statements will bring about
some cost savings. In addition to the cost savings discussed above,
each company will benefit from a reduction in the paperwork burden; the
FAA will also realize these same benefits. These rule changes will
increase consistency between appendices I and J, where possible.
Elimination of unnecessary differences will reduce industry inquiries
into the current conflicts between the two, saving both individual
companies and the FAA time and resources, as well as better compliance
with the regulations.
Comparison of Costs and Benefits
This action will make a number of changes in order to make the
antidrug and alcohol misuse prevention programs more efficient. The
modifications to testing requirements, the changes to program
submission requirements, and the elimination of the antidrug plans and
the alcohol misuse prevention program certification statements should
make these programs more effective.
These rules will result in a net cost of $178,600 (net present
value, $72,000). The public will benefit from:
--Increased safety, by reducing the likelihood that a drug user will be
employed in a safety-sensitive position due to clarified pre-employment
requirements;
--Reduced paperwork, by companies no longer having to file an alcohol
certification statement and a drug plan; and
--Enhanced program management, due to the elimination of unnecessary
differences between appendices I and J. Accordingly, the FAA finds
these requirements to be cost-beneficial.
Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) establishes ``as a
principle of regulatory issuance that agencies shall endeavor,
consistent with the objective of the rule and of applicable statutes,
to fit regulatory and informational requirements to the scale of the
business, organizations, and governmental jurisdictions subject to
regulation.'' To achieve that principle, the RFA requires agencies to
solicit and consider flexible regulatory proposals and to explain the
rationale for their actions. The RFA covers a wide-range of small
entities, including small businesses, not-for-profit organizations and
small governmental jurisdictions.
Agencies must perform a review to determine whether a proposed or
final rule will have a significant economic impact on a substantial
number of small entities. If the agency determines that it will, the
agency must prepare a regulatory flexibility analysis as described in
the Act.
However, if an agency determines that a proposed or final rule is
not expected to have a significant economic impact on a substantial
number of small entities, section 605(b) of the 1980 RFA provides that
the head of the agency may so certify and a regulatory flexibility
analysis is not required. The certification must include a statement
providing the factual basis for this determination, and the reasoning
should be clear.
For this rule, the small entity group is considered to be part 121
and 135 air carriers (Standard Industrial Classification Code [SIC]
4512) and part 145 repair stations (SIC Code 4581, 7622, 7629, and
7699). The FAA has identified a total of 98 of a total of 144 part 121
air carriers and 2,118 of a total of 3,074 part 135 air carriers that
are small entities. However, the FAA has been unable to determine how
many of the 2,412 part 145 repair stations are considered small
entities, and so called for comments in Notice 02-04, but received
none.
The annualized cost of these rule changes to the industry is
$17,100. The FAA is unable to isolate the cost savings to each industry
group because some of the changes apply to individual companies while
others apply to the employees. So, the FAA looked at the average cost
impact on each of the small entities and also on all of the small
entity industry groups. If all the cost
[[Page 1855]]
were borne by only small part 121 air carriers, small part 135 air
carriers, or applicable repair stations, the average cost per
certificate holder would be $174, $8, or $7, respectively. If the cost
savings were divided among all of these business entities, the average
cost savings per entity would be $4 per entity. Consequently, the FAA
certifies that the rule will not have a significant economic impact on
a substantial number of these entities.
International Trade Impact Statement
The Trade Agreement Act of 1979 prohibits Federal agencies from
establishing any standards or engaging in related activities that
create unnecessary obstacles to the foreign commerce of the United
States. Legitimate domestic objectives, such as safety, are not
considered unnecessary obstacles. The statute also requires
consideration of international standards and, where appropriate, that
they be the basis for U.S. standards. The FAA has assessed the
potential effect of this final rule and determined that it will have
only a domestic impact and therefore no effect on any trade-sensitive
activity.
Unfunded Mandates Determination
The Unfunded Mandates Reform Act of 1995 (the Act) is intended,
among other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of the Act
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may result in an expenditure of $100 million or more (adjusted
annually for inflation) in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector; such a mandate
is deemed to be a ``significant regulatory action.'' This final rule
does not contain such a mandate. The requirements of Title II do not
apply.
Executive Order 13132, Federalism
The FAA has analyzed this final rule under the principles and
criteria of Executive Order 13132, Federalism. We determined that this
action will not have a substantial direct effect on the States, on the
relationship between the national Government and the States, or on the
distribution of power and responsibilities among the various levels of
government. Therefore, we determined that this final rule does not have
federalism implications.
Environmental Analysis
FAA Order 1050.1D defines FAA actions that may be categorically
excluded from preparation of a National Environmental Policy Act (NEPA)
environmental impact statement. In accordance with FAA Order 1050.1D,
appendix 4, paragraph 4(j), this rulemaking action qualifies for a
categorical exclusion.
Regulations That Significantly Affect Energy Supply, Distribution, or
Use
The FAA has analyzed this final rule under Executive Order 13211,
Actions Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). We have determined that it is not
a ``significant energy action'' under the executive order because it is
not a ``significant regulatory action'' under Executive Order 12866,
and it is not likely to have a significant adverse effect on the
supply, distribution, or use of energy.
List of Subjects in 14 CFR Part 121
Air carriers, Aircraft, Airmen, Alcohol abuse, Alcoholism, Aviation
safety, Charter flights, Drug abuse, Drug testing, Reporting and
recordkeeping requirements, Safety, Transportation.
The Amendment
0
In consideration of the foregoing, the Federal Aviation Administration
amends part 121 of title 14, Code of Federal Regulations, as follows:
PART 121--OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL
OPERATIONS.
0
1. The authority citation for part 121 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 40119, 41706, 44101, 44701-
44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-
44904, 44912, 45101-45105, 46105, 46301.
0
2. Amend appendix I to part 121 as follows:
0
A. In section I., add new paragraphs D and E;
0
B. In section II., remove the definition of Contractor company; add new
definitions for Contractor and Hire in alphabetic order; and revise the
definitions of Employee and Employer;
0
C. Revise section III.;
0
D. In section V., revise paragraph A.; remove paragraph B.; redesignate
paragraph C. as paragraph B.; redesignate paragraphs B.8., B.9., and
B.10. as paragraphs B.9., B.10., and B.11., respectively; add a new
paragraph B.8; redesignate paragraph D. as paragraph C.; redesignate
paragraph E. as paragraph D. and revise it; redesignate paragraph F. as
paragraph E.; and redesignate paragraph G. as paragraph F.;
0
E. In section VI., revise paragraph D.1;
0
F. In section VII., revise paragraph C.5;
0
G. Revise section IX; and
0
H. In section XIII., revise introductory text and paragraph B.
The additions and revisions read as follows:
Appendix I to Part 121--Drug Testing Program
* * * * *
I. General.
* * * * *
D. Applicable Federal Regulations. The following applicable
regulations appear in 49 CFR or 14 CFR:
1. 49 CFR
Part 40--Procedures for Transportation Workplace Drug Testing
Programs
2. 14 CFR
61.14--Refusal to submit to a drug or alcohol test.
63.12b--Refusal to submit to a drug or alcohol test.
65.23--Refusal to submit to a drug or alcohol test.
65.46--Use of prohibited drugs.
67.107--First-Class Airman Medical Certificate, Mental.
67.207--Second-Class Airman Medical Certificate, Mental.
67.307--Third-Class Airman Medical Certificate, Mental.
121.429--Prohibited drugs.
121.455--Use of prohibited drugs.
121.457--Testing for prohibited drugs.
135.1--Applicability.
135.249--Use of prohibited drugs.
135.251--Testing for prohibited drugs.
135.353--Prohibited drugs.
E. Falsification. No person may make, or cause to be made, any
of the following:
1. Any fraudulent or intentionally false statement in any
application of an antidrug program.
2. Any fraudulent or intentionally false entry in any record or
report that is made, kept, or used to show compliance with this
appendix.
3. Any reproduction or alteration, for fraudulent purposes, of
any report or record required to be kept by this appendix.
II. Definitions. * * *
* * * * *
Contractor is an individual or company that performs a safety-
sensitive function by contract for an employer or another
contractor.
* * * * *
Employee is a person who is hired, either directly or by
contract, to perform a safety-sensitive function for an employer, as
defined below. An employee is also a person who transfers into a
position to perform a safety-sensitive function for an employer.
Employer is a part 121 certificate holder, a part 135
certificate holder, an operator as defined in Sec. 135.1(c) of this
chapter, or an air traffic control facility not operated by the FAA
or by or under contract to the U.S. military. An employer may use a
contract employee who is not included under that employer's FAA-
mandated antidrug program to perform a safety-sensitive function
only if
[[Page 1856]]
that contract employee is included under the contractor's FAA-
mandated antidrug program and is performing a safety-sensitive
function on behalf of that contractor (i.e., within the scope of
employment with the contractor.)
* * * * *
Hire means retaining an individual for a safety-sensitive
function as a paid employee, as a volunteer, or through barter or
other form of compensation.
* * * * *
III. Employees Who Must be Tested. Each employee, including any
assistant, helper, or individual in a training status, who performs
a safety-sensitive function listed in this section directly or by
contract for an employer as defined in this appendix must be subject
to drug testing under an antidrug program implemented in accordance
with this appendix. This includes full-time, part-time, temporary,
and intermittent employees regardless of the degree of supervision.
The safety-sensitive functions are:
A. Flight crewmember duties.
B. Flight attendant duties.
C. Flight instruction duties.
D. Aircraft dispatcher duties.
E. Aircraft maintenance and preventive maintenance duties.
F. Ground security coordinator duties.
G. Aviation screening duties.
H. Air traffic control duties.
* * * * *
V. Types of Drug Testing Required. * * *
A. Pre-Employment Testing.
1. No employer may hire any individual for a safety-sensitive
function listed in section III of this appendix unless the employer
first conducts a pre-employment test and receives a verified
negative drug test result for that individual.
2. No employer may allow an individual to transfer from a
nonsafety-sensitive to a safety-sensitive function unless the
employer first conducts a pre-employment test and receives a
verified negative drug test result for the individual.
3. Employers must conduct another pre-employment test and
receive a verified negative drug test result before hiring or
transferring an individual into a safety-sensiti |
