[Federal Register Volume 71, Number 119 (Wednesday, June 21, 2006)]
[Rules and Regulations]
[Pages 35760-35765]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-9814]



[[Page 35759]]

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Part III





Department of Transportation





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Federal Aviation Administration



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14 CFR Parts 61, 63 et al.



Disqualification for Airman and Airman Medical Certificate Holders 
Based on Alcohol Violations or Refusals To Submit to Drug and Alcohol 
Testing; Final Rule

Federal Register / Vol. 71, No. 119 / Wednesday, June 21, 2006 / 
Rules and Regulations

[[Page 35760]]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 61, 63, 65, 67, 91, 121, and 135

[Docket No.: FAA-2004-19835: Amendment No. 61-114 , 63-34, 65-47, 67-
19, 91-291, 121-325, 135-105]
RIN 2120-AH82


Disqualification for Airman and Airman Medical Certificate 
Holders Based on Alcohol Violations or Refusals To Submit to Drug and 
Alcohol Testing

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: This final rule changes the airman medical certification 
standards to disqualify an airman based on an alcohol test result of 
0.04 or greater breath alcohol concentration (BAC) or a refusal to take 
a drug or alcohol test required by the Department of Transportation 
(DOT) or a DOT agency. Further, this rulemaking standardizes the time 
period for reporting refusals and certain test results to the FAA, and 
requires employers to report pre-employment and return-to-duty test 
refusals. It also amends the airman medical certification requirements 
to allow suspension or revocation of airman medical certificates for 
pre-employment and return-to-duty test refusals. Finally, we have 
updated the regulations to recognize current breath alcohol testing 
technology. These amendments are necessary to ensure that persons who 
engage in substance abuse do not operate aircraft or perform contract 
air traffic control duties until it is determined that these 
individuals can safely exercise the privileges of their certificates.

DATES: These amendments become effective July 21, 2006.

FOR FURTHER INFORMATION CONTACT: For technical information, Sherry M. 
de Vries, Aeromedical Standards and Substance Abuse Branch, Medical 
Specialties Division, AAM-210, Office of Aerospace Medicine, Federal 
Aviation Administration, 800 Independence Avenue, SW., Washington, DC 
20591; telephone (202) 267-8693. For legal information, Michael Chase, 
Office of the Chief Counsel, AGC-200, Federal Aviation Administration, 
800 Independence Avenue, SW., Washington, DC 20591; telephone (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 FAA's Regulations and Policies web page at http://
www.faa.gov/regulations_policies/; or
    (3) Accessing the Government Printing Office's Web page at http://
www.gpoaccess.gov/fr/index.html.
    You can also get a copy by sending 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 
persons listed under FOR FURTHER INFORMATION CONTACT. You can find out 
more about SBREFA on the Internet at http://www.faa.gov/avr/arm/
sbrefa.cfm.

Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is 
found in Title 49 of the United States Code. Subtitle I, Section 106 
describes the authority of the FAA Administrator. Subtitle VII, 
Aviation Programs, describes in more detail the scope of the agency's 
authority.
    This rulemaking is promulgated under the authority described in 
Subtitle VII, Part A, Chapter 447, Section 44703, Airman Certificates, 
and Chapter 451, Section 45102, Alcohol and Controlled Substances 
Testing Programs. Under Section 44703, the FAA is authorized to issue 
an airman certificate to an individual who ``is qualified for, and 
physically able to perform the duties related to, the position to be 
authorized by the certificate.'' Under Section 45102, the FAA is 
charged with prescribing regulations to establish programs for drug and 
alcohol testing of employees performing safety-sensitive functions for 
air carriers and to take certificate or other action when an employee 
violates the testing regulations. This regulation is within the scope 
of the FAA's authority because it updates the existing regulations 
regarding airman certification of individuals who have violated the 
drug and alcohol testing regulations or who have otherwise demonstrated 
a substance abuse history through violation of State or local laws 
involving driving while intoxicated/driving under the influence. This 
rulemaking is a current example of the FAA's continuing efforts to 
ensure that only drug- and alcohol-free individuals perform safety-
sensitive duties.

Discussion of Comments

General Overview

    The FAA has revised regulations that apply to airmen who fail or 
refuse a drug or alcohol test. These changes conform the FAA's 
regulations to changes in DOT's and our own drug and alcohol testing 
regulations.
    The comment period for the notice of proposed rulemaking (NPRM), 
(69 FR 74898) closed on March 14, 2005. The FAA received approximately 
30 comments in response to the NPRM. Commenters included the 
Experimental Aircraft Association (EAA); the Air Line Pilots 
Association, International (ALPA); and the Drug and Alcohol Testing 
Industry Association (DATIA).
    The majority of commenters favored the proposed changes. 
Approximately 20 commenters favored all of the proposals, and some of 
these commenters encouraged stricter standards including zero tolerance 
for alcohol consumption by pilots. Many of the commenters stated they 
approved of the proposals because they enhance safety. Three commenters 
raised issues disagreeing with one or more of the proposals. The 
remaining commenters offered suggestions, some of which were outside 
the scope of this rulemaking.
Should a refusal be a medically disqualifying condition?
    ALPA disagreed with the proposal to define a refusal as a medically 
disqualifying condition. ALPA asserted substance abuse is a recognized 
medical condition under the American Psychiatric Association's 
Diagnostic and

[[Page 35761]]

Statistical Manual of Mental Disorders (DSM). In ALPA's opinion, the 
FAA should not mix the medical standards with non-medical policy 
concerns. ALPA acknowledges the current drug and alcohol testing 
regulations require such pilots to be removed from duty, evaluated and 
rehabilitated. However, ALPA takes exception with a separate diagnosis 
of substance abuse arising from a single confirmed alcohol test result 
or a refusal.
    The Federal Air Surgeon sets the standards for airman medical 
certification based on sound medical judgement in reference to the 
aviation environment. Thus, while the Federal Air Surgeon may reference 
sources such as DSM, DSM is not the only basis for determining airman 
medical certification standards.
    This final rule does not attempt to mix medical standards with non-
medical policy concerns in this rulemaking, instead it merely 
harmonizes the FAA's medical certification requirements with the DOT's 
and FAA's drug and alcohol testing requirements. As ALPA notes, the 
DOT's and FAA's drug and alcohol testing regulations already recognize 
a positive drug test result, an alcohol test result of 0.04 or greater 
BAC, and a refusal as substance abuse requiring rehabilitation before 
the individual can be returned to perform a safety-sensitive function. 
In addition, regardless of whether the airman resumes the performance 
of safety-sensitive functions, the FAA's medical certification 
regulations already require an airman to demonstrate that he or she 
meets the standards in part 67 following a positive drug test result or 
BAC of 0.04 or greater.
    The Omnibus Transportation Employees Testing Act of 1990, Title 49, 
United States Code, sections 45101-45105, already requires that every 
individual who violates the drug or alcohol testing regulations must be 
rehabilitated before that individual can be returned to the performance 
of a safety-sensitive function. (49 U.S.C. section 45103(b)) Since 
2000, the DOT's regulations have required that, following a violation 
of the drug or alcohol testing regulations and before returning an 
individual to work, the employer must have a Substance Abuse 
Professional (SAP) make ``a face-to-face clinical assessment and 
evaluation to determine what assistance is needed by the employee to 
resolve problems associated with alcohol and/or drug use.'' (49 CFR 
section 40.293)
    Incidentally, prior to the DOT's final rule published in 2000, 65 
FR 79462 (December 19, 2000), establishing the current 49 CFR part 40, 
the SAP had discretion to determine whether an employee needed 
substance abuse assistance. The DOT removed this discretion in the 
final rule, stating ``we believe that there are no circumstances in 
which it is appropriate for a SAP to find that a violator of our 
regulations is not in need of education and/or treatment.'' 65 FR at 
79508.
When should reports of refusals and drug and alcohol test results be 
sent to the FAA?
    In the NPRM, we proposed standardizing the time period for 
reporting drug test results and refusals to 2 days. EAA opposed 
changing the notification for drug test results from 12 working days to 
2 working days. Instead, EAA recommended a 7 working day notification 
requirement.
    We have decided to adopt the amendment as proposed because we are 
not accelerating the schedule for drug test or refusal verification, we 
are merely requiring an administrative change to report the results to 
the FAA within 2 days for alcohol test results, drug test results, and 
refusal verifications. These changes ensure violations are reported to 
the FAA in a more timely manner. This standardization of 2 days will 
make the reporting requirements clear and consistent for employers and 
their service agents. The FAA notes that while we proposed to change 
the refusal reporting requirement for drug testing to 2 days, we 
inadvertently omitted the rule language for making a similar change to 
the alcohol refusal reporting requirement. We have corrected this 
omission.
How do driving under the influence (DUI) violations affect pilot 
certificate holders?
    EAA questioned how DOT agencies and state and local law authorities 
would report such information to the FAA. EAA suggested new forms would 
be needed, and the FAA failed to account for this cost. This 
association also believed the proposed rule would significantly affect 
pilot certificate holders who have received a DUI for drugs or alcohol. 
In addition, EAA asked if pilots are allowed one DUI before their 
medical certificate is revoked, saying that aviation medical examiners 
(AME) currently forgive the first DUI. Also, EAA inquired whether a 
pilot would be suspended for 0.04 or less BAC. EAA said it is not clear 
whether a DUI or a positive test result not related to flying can 
result in the loss of the airman's medical certificate.
    This final rule only standardizes the reporting periods as 
described earlier, and does not change the existing reporting 
requirements for DUI or other drug or alcohol violations found by DOT 
agencies, state, or local law authorities. Therefore, new forms are not 
necessary.
    Pilot certificate holders who receive a DUI already encounter 
consequences under the existing FAA regulations. A pilot with one DUI 
can be evaluated by the AME to determine if there is an alcohol abuse 
problem. Similarly, the AME is required to defer issuance of a new 
medical certificate to the Federal Air Surgeon if the airman has 
refused a DOT alcohol test or has a DOT alcohol violation. As we 
explained in the preamble to the NPRM, the FAA has taken medical 
certificate action against pilots for one alcohol-related event. 
Although test results below 0.04 are not required to be reported to the 
FAA, it is possible, in certain circumstances, the pilot's medical 
certificate will be suspended or revoked for an alcohol test result of 
less than 0.04 BAC. However, under the FAA's regulations, an employer 
must remove a pilot from the performance of safety-sensitive work if 
the pilot has an alcohol test result between 0.02 and less than 0.04 
BAC. The pilot cannot be returned to safety-sensitive work until he or 
she has an alcohol test result below 0.02 BAC or until the pilot's next 
scheduled duty period, but not less than 8 hours following the 
administration of the test.
    Yes, an individual can lose his or her medical certificate for a 
DUI, DWI, test result, or refusal unrelated to flying. Losing a medical 
certificate for conduct unrelated to flying is not a new consequence 
resulting from this final rule.
How does an employer know when a medical certificate is valid?
    EAA noted that it can be confusing for an employer to know if a 
medical certificate is valid after an employee has had a drug or 
alcohol violation. The association suggested specific language on this 
point.
    In response to EAA's comments, we modified part 121, appendix I, 
section VII.C.2 to include clarifying language. We also modified part 
121, appendix J, section V.C.4 to add the clarifying language and to 
make it consistent with the corresponding section in appendix I. An 
employer can refer to these sections for direction on medical 
certificate validity.
Miscellaneous Comments
    The FAA received numerous comments outside the scope of the 
proposals. They included: applying

[[Page 35762]]

medical certification to mechanics and others performing safety-
sensitive functions; zero alcohol tolerance; conducting breath alcohol 
testing immediately before each flight; reducing the breath alcohol 
concentration standard from 0.04 to 0.02 BAC; increasing the BAC 
standard above 0.04 BAC; increasing the timeframe of prohibition of 
substance abuse in the medical certification standards to extend longer 
than 2 years. We have not addressed them in this rulemaking.

Paperwork Reduction Act

    The FAA described the information collection requirements 
associated with reporting the results of drug and alcohol testing in 
OMB control number 2120-0535. This NPRM would add the requirement to 
report refusals to take return-to-duty and pre-employment tests. This 
is an extremely small additional burden because these reports are 
already generated and sent to the employer under 49 CFR part 40 and 14 
CFR part 121, appendices I and J, and are accounted for in OMB control 
number 2125-0529. Under the new requirement, employers would merely 
send these already existing reports on to the FAA, resulting in a total 
annual burden of fewer than 2 hours across the industry. Specifically, 
we estimate the annual burden associated with this NPRM to be 1.75 
hours to the private sector, costing $35.00. The annual burden to the 
Federal Government would be 7 hours, costing $138.95. Because this 
burden is extremely small, we will not change Paperwork Burden 
Submission OMB control number 220-0535 at this time, but we will 
include the extra 1.75 hours in the next renewal in 2008.

International Compatibility

    In keeping with U.S. obligation under the Convention on 
International Civil Aviation, it is FAA policy to comply with 
International Civil Aviation Organization (ICAO) Standards and 
Recommended Practices (SARPs) to the maximum extent practicable. SARPs 
do not address disqualification of an airman based on a refusal to take 
a required drug or alcohol test.

Executive Order 12866 and DOT Regulatory Policies and Procedures

    Executive Order 12866, Regulatory Planning and Review, directs the 
FAA to assess both the costs and the benefits of a regulatory change. 
We are not allowed to propose or adopt a regulation unless we make a 
reasoned determination that the benefits of the intended regulation 
justify the costs. Our assessment of this rulemaking indicates that its 
economic impact is minimal. This action imposes minimal copying, 
mailing, and faxing costs on small entities subject to this rule. 
Because the costs and benefits of this action do not make it a 
``significant regulatory action'' as defined in the Order, we have not 
prepared a ``regulatory evaluation,'' which is the written cost/benefit 
analysis ordinarily required for all rulemaking under the DOT 
Regulatory Policies and Procedures. We do not need to do a full 
evaluation where the economic impact of a rule is minimal.

Regulatory Evaluation, Regulatory Flexibility Analysis, International 
Trade Impact Assessment, and Unfunded Mandate Assessment

    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. 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, to 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). This portion of the preamble 
summarizes the FAA's analysis of the economic impacts of this final 
rule.
    The Department of Transportation Order DOT 2100.5 prescribes 
policies and procedures for simplification, analysis, and review of 
regulations. If the expected cost impact is so minimal that a proposal 
does not warrant a full evaluation, this order permits a statement to 
that effect. The basis for the minimal impact must be included in the 
preamble, if a full regulatory evaluation of the cost and benefits is 
not prepared. Such a determination has been made for this rule. The 
reasoning for this determination follows.
    This final rule amends the airman medical certification standards 
to disqualifiy an airman based on an alcohol test result of 0.04 or 
greater BAC or a refusal to take a required drug or alcohol test. This 
rule enhances safety by ensuring that persons who engage in substance 
abuse do not operate aircraft or perform contract air traffic control 
tower operations until it is determined that these individuals can 
operate safely. This rulemaking does not impose additional drug and 
alcohol testing requirements. It only imposes reporting requirements on 
the aviation industry and the FAA. This final rule will have a minimal 
impact with positive net benefits, and a regulatory evaluation was not 
prepared.
    The FAA has, therefore, determined this rulemaking action 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. In addition, the FAA has determined 
that this rulemaking action: (1) Will not have a significant economic 
impact on a substantial number of small entities; (2) will not affect 
international trade; and (3) will not impose an unfunded mandate on 
state, local, or tribal governments, or on the private sector.

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 
consider flexible regulatory proposals, to explain the rationale for 
their actions, and to solicit comments. 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 RFA.
    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 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

[[Page 35763]]

providing the factual basis for this determination, and the reasoning 
should be clear.
    This action imposes minimal copying, mailing, and faxing costs on 
small entities subject to this rule. Consequently, as the FAA 
Administrator, I certify that the rulemaking action will not have a 
significant economic impact on a substantial number of small entities.

International Trade Impact Assessment

    The Trade Agreements 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 
these international standards be the basis for U.S. standards. The FAA 
has assessed the potential effect of this rulemaking action and has 
determined that it only impacts domestic activities and will not have 
any trade-sensitive activity.

Unfunded Mandate Assessment

    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. The FAA 
currently uses an inflation-adjusted value of $120.7 million in lieu of 
$100 million.
    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 proposed rule under the principles and 
criteria of Executive Order 13132, Federalism. We have determined that 
this action would 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, and therefore would 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 
environmental impact statement. In accordance with FAA Order 1050.1D, 
appendix 4, paragraph 4(J) this NPRM qualifies for a categorical 
exclusion.

List of Subjects

14 CFR Part 61

    Aircraft, Airmen, Alcohol abuse, Aviation safety, Drug abuse, 
Recreation and recreation areas, Reporting and recordkeeping 
requirements, Security measures, Teachers.

14 CFR Part 63

    Aircraft, Airmen, Alcohol abuse, Aviation safety, Drug abuse, 
Navigation (air), Reporting and recordkeeping requirements, Security 
measures.

14 CFR Part 65

    Air traffic controllers, Aircraft, Airmen, Airports, Alcohol abuse, 
Aviation safety, Drug abuse, Reporting and recordkeeping requirements, 
Security measures.

14 CFR Part 67

    Airmen, Authority delegation (Government agencies), Health, 
Reporting and recordkeeping requirements.

14 CFR Part 91

    Afghanistan, Agriculture, Air traffic control, Aircraft, Airmen, 
Airports, Aviation safety, Canada, Cuba, Ethiopia, Freight, Mexico, 
Noise control, Political candidates, Reporting and recordkeeping 
requirements, Yugoslavia.

14 CFR Part 121

    Air carriers, Aircraft, Airmen, Alcohol abuse, Aviation safety, 
Charter flights, Drug abuse, Drug testing, Reporting and recordkeeping 
requirements, Safety, Transportation.

14 CFR Part 135

    Air taxis, Aircraft, Airmen, Alcohol abuse, Aviation safety, Drug 
abuse, Drug testing, Reporting and recordkeeping requirements.

The Amendment

0
In consideration of the foregoing, the Federal Aviation Administration 
amends Chapter I of Title 14 parts 61, 63, 65, 67, 91,121, and 135 of 
the Code of Federal Regulations as follows:

PART 61--GENERAL

0
1. The authority citation for part 61 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709-
44711, 45102-45103, 45301-45302.


0
2. Revise Sec.  61.14, paragraph (a) to read as follows:


Sec.  61.14  Refusal to submit to a drug or alcohol test.

    (a) This section applies to an individual who holds a certificate 
under this part and is subject to the types of testing required under 
appendix I to part 121 or appendix J to part 121 of this chapter.
* * * * *

PART 63--CERTIFICATION: FLIGHT CREWMEMBERS OTHER THAN PILOTS

0
3. The authority citation for part 63 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709-
44711, 45102-45103, 45301-45302.


0
4. Revise Sec.  63.12b, paragraph (a) to read as follows:


Sec.  63.12b  Refusal to submit to a drug or alcohol test.

    (a) This section applies to an individual who holds a certificate 
under this part and is subject to the types of testing required under 
appendix I to part 121 or appendix J to part 121 of this chapter.
* * * * *

PART 65--CERTIFICATION: AIRMEN OTHER THAN FLIGHT CREWMEMBERS

0
5. The authority citation for part 65 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709-
44711, 45102-45103, 45301-45302.


0
6. Revise Sec.  65.23, paragraph (a) to read as follows:


Sec.  65.23  Refusal to submit to a drug or alcohol test.

    (a) General. This section applies to an individual who holds a 
certificate under this part and is subject to the types of testing 
required under appendix I to part 121 or appendix J to part 121 of this 
chapter.
* * * * *

0
7. Revise Sec.  65.46a, paragraph (f) to read as follows:


Sec.  65.46a  Misuse of alcohol.

* * * * *
    (f) Refusal to submit to a required alcohol test. A covered 
employee may not refuse to submit to any alcohol test required under 
appendix J to part 121 of

[[Page 35764]]

this chapter. An employer may not permit an employee who refuses to 
submit to such a test to perform or continue to perform safety-
sensitive functions.

PART 67--MEDICAL STANDARDS AND CERTIFICATION

0
8. The authority citation for part 67 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709-
44711, 45102-45103, 45301-45303.


0
9. Revise Sec.  67.107, paragraph (b)(2) to read as follows:


Sec.  67.107  Mental.

* * * * *
    (b) * * *
    (2) A verified positive drug test result, an alcohol test result of 
0.04 or greater alcohol concentration, or a refusal to submit to a drug 
or alcohol test required by the U.S. Department of Transportation or an 
agency of the U.S. Department of Transportation; or
* * * * *

0
10. Revise Sec.  67.207, paragraph (b)(2) to read as follows:


Sec.  67.207  Mental.

* * * * *
    (b) * * *
    (2) A verified positive drug test result, an alcohol test result of 
0.04 or greater alcohol concentration, or a refusal to submit to a drug 
or alcohol test required by the U.S. Department of Transportation or an 
agency of the U.S. Department of Transportation; or
* * * * *

0
11. Revise Sec.  67.307, paragraph (b)(2) to read as follows:


Sec.  67.307  Mental.

* * * * *
    (b) * * *
    (2) A verified positive drug test result, an alcohol test result of 
0.04 or greater alcohol concentration, or a refusal to submit to a drug 
or alcohol test required by the U.S. Department of Transportation or an 
agency of the U.S. Department of Transportation; or
* * * * *

PART 91--GENERAL OPERATING AND FLIGHT RULES

0
12. The authority citation for part 91 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 1155, 40103, 40113, 40120, 44101, 
44111, 44701, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 
46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-47531, 
articles 12 and 29 of the Convention on International Civil Aviation 
(61 stat. 1180).


0
13. Revise Sec.  91.17 paragraphs (a)(4), (c)(1) introductory text and 
(c)(2) to read as follows:


Sec.  91.17  Alcohol or drugs.

    (a) * * *
    (4) While having an alcohol concentration of 0.04 or greater in a 
blood or breath specimen. Alcohol concentration means grams of alcohol 
per deciliter of blood or grams of alcohol per 210 liters of breath.
* * * * *
    (c) * * *
    (1) On request of a law enforcement officer, submit to a test to 
indicate the alcohol concentration in the blood or breath, when--
* * * * *
    (2) Whenever the FAA has a reasonable basis to believe that a 
person may have violated paragraph (a)(1), (a)(2), or (a)(4) of this 
section, on request of the FAA, that person must furnish to the FAA the 
results, or authorize any clinic, hospital, or doctor, or other person 
to release to the FAA, the results of each test taken within 4 hours 
after acting or attempting to act as a crewmember that indicates an 
alcohol concentration in the blood or breath specimen.
* * * * *

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

0
14. The authority citation for part 121 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 40113, 40119, 41706, 44101, 44701-
44703, 44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-
44904, 44912, 45101-45105, 46105.


0
15. Revise Sec.  121.458, paragraph (f) to read as follows:


Sec.  121.458  Misuse of alcohol.

* * * * *
    (f) Refusal to submit to a required alcohol test. A covered 
employee must not refuse to submit to any alcohol test required under 
appendix J to this part. A certificate holder must not permit an 
employee who refuses to submit to such a test to perform or continue to 
perform safety-sensitive functions.

Appendix I to Part 121--Drug Testing Program

0
16. Amend section II of Appendix I to part 121 by revising the 
definition of ``refusal to submit'' as follows:
* * * * *


Sec.  II.  Definitions.

* * * * *
    Refusal to submit means that an employee engages in conduct 
including but not limited to that described in 49 CFR 40.191.
* * * * *

0
17. Amend section VI of Appendix I to part 121 by revising paragraph 
D.1 as follows and removing and reserving paragraph D.2.


Sec.  VI.  Administrative and Other Matters.

* * * * *
    D. Refusal to Submit to Testing.
    1. Each employer must notify the FAA within 2 working days of 
any employee who holds a certificate issued under part 61, part 63, 
or part 65 of this chapter who has refused to submit to a drug test 
required under this appendix. Notification must be sent to: Federal 
Aviation Administration, Office of Aerospace Medicine, Drug 
Abatement Division (AAM-800), 800 Independence Avenue, SW., 
Washington, DC 20591, or by fax to (202) 267-5200.
* * * * *

0
18. Amend section VII of Appendix I by revising paragraphs C.1, C.2, 
C.3, C.4 and adding paragraph C.6 to read as follows:

VII. Medical Review Officer/Substance Abuse Professional, and 
Employer Responsibilities.

* * * * *
    C. Additional Medical Review Officer, Substance Abuse 
Professional, and Employer Responsibilities Regarding 14 CFR part 67 
Airman Medical Certificate Holders.
    1. As part of verifying a confirmed positive test result or 
refusal to submit to a test, the MRO must ask and the individual 
must answer whether he or she holds an airman medical certificate 
issued under 14 CFR part 67 or would be required to hold an airman 
medical certificate to perform a safety-sensitive function for the 
employer. If the individual answers in the affirmative to either 
question, in addition to notifying the employer in accordance with 
49 CFR part 40, the MRO must forward to the Federal Air Surgeon, at 
the address listed in paragraph 5, the name of the individual, along 
with identifying information and supporting documentation, within 2 
working days after verifying a positive drug test result or refusal 
to submit to a test.
    2. During the SAP interview required for a verified positive 
test result or a refusal to submit to a test, the SAP must ask and 
the individual must answer whether he or she holds or would be 
required to hold an airman medical certificate issued under 14 CFR 
part 67 of this chapter to perform a safety-sensitive function for 
the employer. If the individual answers in the affirmative, the 
individual must obtain an airman medical certificate issued by

[[Page 35765]]

the Federal Air Surgeon dated after the verified positive drug test 
result date or refusal to test date. After the individual obtains 
this airman medical certificate, the SAP may recommend to the 
employer that the individual may be returned to a safety-sensitive 
position. The receipt of an airman medical certificate does not 
alter any obligations otherwise required by 49 CFR part 40 or this 
appendix.
    3. An employer must forward to the Federal Air Surgeon within 2 
working days of receipt, copies of all reports provided to the 
employer by a SAP regarding the following:
    (a) An individual who the MRO has reported to the Federal Air 
Surgeon under section VII.C.1 of this appendix; or
    (b) An individual who the employer has reported to the Federal 
Air Surgeon under section VI.D of this appendix.
    4. The employer must not permit an employee who is required to 
hold an airman medical certificate under 14 CFR part 67 to perform a 
safety-sensitive duty to resume that duty until the employee has:
    (a) Been issued an airman medical certificate from the Federal 
Air Surgeon after the date of the verified positive drug test result 
or refusal to test; and
    (b) Met the return to duty requirements in accordance with 49 
CFR part 40.
* * * * *
    6. MROs, SAPs, and employers who send reports to the Federal Air 
Surgeon must keep a copy of each report for 5 years.
* * * * *

Appendix J to Part 121--Alcohol Misuse Prevention Program

0
19. Amend section I.D. of Appendix J to part 121 by revising the 
definition of ``refusal to submit'' as follows:

I. GENERAL.

* * * * *
    D. Definitions. * * *
* * * * *
    Refusal to submit means that a covered employee has engaged in 
conduct including but not limited to that described in 49 CFR 
40.261, or has failed to remain readily available for post-accident 
testing as required by this appendix.
* * * * *


0
20. Amend section IV of Appendix J to part 121 by revising paragraph 
A.2(a)(2) to read as follows:

IV. HANDLING OF TEST RESULTS, RECORD RETENTION, AND CONFIDENTIALITY

* * * * *
    2. Period of Retention.
    (a) * * *
* * * * *
    (2) Records of notifications to the Federal Air Surgeon of 
refusals to submit to testing and violations of the alcohol misuse 
prohibitions in this chapter by covered employees who hold medical 
certificates issued under part 67 of this chapter.
* * * * *


0
21. Amend section V of Appendix J to Part 121 by revising paragraph 
(C)(4) to read as follows:

    C. * * *
* * * * *
    4. No covered employee who is required to hold an airman medical 
certificate in order to perform a safety-sensitive duty may perform 
that duty following a violation of this appendix until the covered 
employee obtains an airman medical certificate issued by the Federal 
Air Surgeon dated after the alcohol test result or refusal to test 
date. After the covered employee obtains this airman medical 
certificate, the SAP may recommend to the employer that the covered 
employee may be returned to a safety-sensitive position. The receipt 
of an airman medical certificate does not alter any obligations 
otherwise required by 49 CFR part 40 or this appendix.
* * * * *

0
22. Amend section V of Appendix J to Part 121 by revising paragraph 
(D)(1) to read as follows:

D. Notice of Refusals

    1. Except as provided in subparagraph 2 of this paragraph D, 
each covered employer must notify the FAA within 2 working days of 
any employee who holds a certificate issued under part 61, part 63, 
or part 65 of this chapter who has refused to submit to an alcohol 
test required under this appendix. Notification must be sent to: 
Federal Aviation Administration, Office of Aerospace Medicine, Drug 
Abatement Division (AAM-800), 800 Independence Avenue, SW., 
Washington, DC 20591, or by fax to (202) 267-5200.
* * * * *

PART 135--OPERATING REQUIREMENTS: COMMUTER AND ON-DEMAND OPERATIONS 
AND RULES GOVERNING PERSONS ON BOARD SUCH AIRCRAFT

0
23. The authority citation for part 135 is amended to read as follows:

    Authority: 49 U.S.C. 106(g), 41706, 40113, 44701-44702, 44705, 
44709, 44711-44713, 44715-44717, 44722, 45101-45105.


0
24. Revise Sec.  135.253, paragraph (f) to read as follows:


Sec.  135.253  Misuse of alcohol.

* * * * *
    (f) Refusal to submit to a required alcohol test. A covered 
employee may not refuse to submit to any alcohol test required under 
appendix J to part 121 of this chapter.
    An operator or certificate holder may not permit an employee who 
refuses to submit to such a test to perform or continue to perform 
safety-sensitive functions.

    Issued in Washington, DC, on June 15, 2006.
Marion C. Blakey,
Administrator.
[FR Doc. E6-9814 Filed 6-20-06; 8:45 am]
BILLING CODE 4910-13-P