[Federal Register Volume 59, Number 31 (Tuesday, February 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2033]
[[Page Unknown]]
[Federal Register: February 15, 1994]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 65, 121, 135
[Docket No. 25148; Notice No. 94-3]
RIN 2120-AC33
Antidrug Program for Personnel Engaged in Specified Aviation
Activities
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: On November 14, 1988, the FAA issued a final rule requiring
specified aviation employers and operators to initiate antidrug
programs, including drug testing, for personnel performing specified
safety-related functions. Subsequently, on October 28, 1991, the
Omnibus Transportation Employee Testing Act of 1991 (the Act) was
enacted. Among other things, the Act provided a statutory mandate for
drug testing in the aviation industry and required specific
consequences for positive drug tests. This NPRM proposes amendments to
certain provisions of the FAA's antidrug rule to comply with the Act.
The NPRM also proposes certain other changes to the antidrug rule that
would clarify employer and medical review officer (MRO)
responsibilities or address other issues that have been identified
since the promulgation of the rule. These amending changes would
facilitate implementation and enforcement of the final rule.
DATES: Comments must be received on or before April 18, 1994.
ADDRESSES: Comments on this notice should be mailed, in triplicate, to:
Federal Aviation Administration, Office of the Chief Counsel, Attn:
Rules Docket (AGC-10), Docket No. 25148, 800 Independence Avenue, SW.,
Washington, DC 20591. Comments that are delivered to this address must
be marked ``Docket No. 25148.'' Comments may be examined in room 915G
between 8:30 a.m. and 5 p.m. on weekdays, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Ms. Julie B. Murdoch, Office of
Aviation Medicine, Drug Abatement Division (AAM-800), Federal Aviation
Administration, 400 7th Street, SW., Washington, DC 20590; telephone
(202) 366-6710.
SUPPLEMENTARY INFORMATION:
Availability of NPRM
Any person may obtain a copy of this NPRM by submitting a request
to the Federal Aviation Administration, Office of Public Affairs, Attn:
Public Inquiry Center (APA-230), 800 Independence Avenue, SW.,
Washington, DC 20591, or by calling (202) 267-3484. Requests must
include the notice number of this NPRM.
Persons interested in being placed on a mailing list for future
rulemaking actions should request a copy of Advisory Circular 11-2A,
Notice of Proposed Rulemaking Distribution System, which describes the
application procedures.
Background
On November 21, 1988, the FAA issued its final antidrug rule
requiring certain aviation employers and operators to develop and to
implement an antidrug program for employees performing specified
aviation activities (53 FR 47024). Initially, the rule was issued under
the general authority of the FAA Administrator to promulgate
regulations relating to aviation safety; however, the Omnibus
Transportation Employee Testing Act of 1991 (the Act) amended the
Federal Aviation Act of 1958 (the FAAct) to provide a statutory mandate
for drug testing of air carrier employees. The Act also prescribed
certain consequences for prohibited drug use and mandated the use of
split specimen testing. This notice proposes changes to the antidrug
rule that would conform the rule to the requirements of the Act.
In addition to the conforming changes required by the Act, this
notice also proposes certain other changes to the antidrug rule. Each
of these changes would clarify the requirements of the rule, or
otherwise address concerns that have been raised since the rule was
published. Although the FAA has issued a number of amendments to the
rule, most of these amendments simply deferred the various compliance
deadlines or effective dates contained in the rule. This notice
includes substantive changes to address provisions of the rule that are
in some cases unclear, do not comport with the changes in the final DOT
drug testing procedures issued on December 1, 1989, or do not
adequately address required steps in the implementation process.
Many of the issues underlying the proposed changes were raised by
employers implementing the rule, by physicians performing MRO
functions, and by other federal agencies. After studying these issues,
the FAA determined that the needs of the industry would best be served
by the amendments proposed in this rulemaking action. The amendments
would also meet the needs of public safety, and facilitate the
compliance and enforcement mandate of the FAA.
Discussion of the Proposed Amendments
This rulemaking action encompasses a variety of proposed changes to
the FAA's antidrug regulations, most of which would affect the
operational provisions of the antidrug rule found in 14 CFR part 121,
appendix I. These changes range from minor technical changes to a
complete revision of the MRO provisions. Each of the proposed changes
is discussed in detail below.
Amendments Required by the Act
Prohibition on Service; Rehabilitation and Evaluation
Among the amendments to the FAAct in the Omnibus Transportation
Employee Testing Act is a section entitled ``Prohibition on service''
(found at new FAAct section 614(b)), which provides that no person who
is determined to have engaged in illegal drug use may perform a safety-
sensitive function after such determination. The FAA's regulations that
address use of prohibited drugs (see, e.g., 14 CFR 65.46(c), (d))
already include such a prohibition on continued duty; however, these
sections would be revised slightly to reflect the fact that entities
other than certificate holders (i.e., contractor companies) can require
drug tests under the antidrug rule if they have an FAA-approved
antidrug program.
Section 614(b)(2) of the FAAct, ``Effect of Rehabilitation,''
states that no covered employee may perform a safety-sensitive function
after engaging in prohibited conduct unless he or she has completed a
rehabilitation program under the provisions of section 614(c) of the
FAAct. Section 614(c)(1) requires the Administrator to prescribe
regulations that at a minimum provide for the identification and
opportunity for treatment of employees in need of assistance in
resolving problems with the use of controlled substances. Further, the
section states that the Administrator shall determine the circumstances
under which such employees shall be required to participate in such a
program. This language recognizes that rehabilitation may not be
appropriate or warranted in all cases of prohibited conduct.
The legislative requirement of section 614(b)(2) is implemented in
the proposed revisions to paragraph A, section VII, of appendix I. The
legislative history of the Act reflected the fact that the FAA did not
prescribe regulations with respect to specific types of rehabilitation
in its antidrug rule. However, because the Act requires the FAA to
prescribe regulations under which persons in need of assistance would
be identified, this NPRM proposes to modify the MRO duties to include
such identification.
As proposed, each covered employee who had a positive drug test or
who refused to submit to testing would be advised of all relevant
resources available to the employee. Further, each such employee would
be evaluated by the MRO or, on referral by the MRO, by a substance
abuse professional (SAP) who would determine whether and what
assistance the employee needed in resolving problems associated with
prohibited drug use. The SAP would have to be a qualified individual as
defined in the NPRM with knowledge of and clinical experience in the
diagnosis and treatment of drug use and abuse. This NPRM would not
propose to change any requirements concerning whether an employer would
provide or pay for any required treatment, would continue to employ, or
would hold a position open for the employee upon completion of the
treatment. As is currently the case under the antidrug rule, these
issues would be a matter for employer/employee negotiation.
New section 614(b)(3) of the FAAct, ``Performance of prior duties
prohibited,'' provides sanctions for employees who engage in prohibited
use of drugs. It provides that, under certain circumstances discussed
below, an individual shall not be permitted to perform the duties
related to air transportation that he or she performed prior to the
date he or she engaged in the prohibited drug use. The legislation does
not require that the individual's employment be terminated, nor that he
or she be reassigned to perform non-safety-sensitive functions.
However, it is an absolute bar to the performance of the same duties
the employee performed before the violation.
This bar applies under four circumstances. The first occurs if the
individual illegally uses drugs ``while on duty.'' The remaining
prohibitions all relate to rehabilitation: the absolute bar to
returning to duty applies if an employee uses drugs after the date of
enactment, and
1. Had previously used drugs and undergone a program of
rehabilitation under the regulations promulgated pursuant to the Act;
2. Refused to undertake any required rehabilitation; or
3. Failed to complete any required rehabilitation.
The proposed rule would implement the prohibitions in two ways.
First, the applicable regulatory sections (14 CFR 65.46, 121.455, and
135.249) would be revised to prohibit employers from using any person
to perform the function specified in section III of appendix I that the
individual was performing if that person had two verified positive drug
tests or if the individual used a prohibited drug while performing such
a specified function. In order to effectively administer this
provision, the FAA is proposing that this prohibition would be
effective for tests occurring after the effective date of the final
rule proposed in this notice.
This bar would be limited to the narrow prohibition in the Act and
would not affect the performance of other duties. While the FAA
recognizes that a narrow bar could lead to anomalous results (for
example, a person might be barred from performing screening duties but
could serve as a pilot), a bar that is limited to the statutory
requirements is more likely to be consistent with the requirements of
the Americans with Disabilities Act or other legal constraints. The FAA
expects that employers would exercise responsible judgment in
determining whether employees not expressly barred from service should
be permitted to perform other safety-sensitive duties.
The bar on two-time violators would apply both to persons who had
gone through rehabilitation and to those who, after evaluation, were
determined not to need treatment. Otherwise, an employee who was found
to need treatment and had an instance of recidivism would be
sanctioned, but an employee who did not need assistance but simply
chose to use drugs again would not be sanctioned. This proposal is made
under the FAA's general statutory authority to prescribe regulations
affecting aviation safety.
Second, the bar following a refusal to undertake or failure to
complete rehabilitation would be implemented by retaining the current
requirement that prior to returning to duty performing safety-sensitive
functions following a failure of an FAA-mandated drug test or refusal
to submit to such a drug test, the employee would have to be evaluated
by the MRO on the specific issue of compliance with any previously-
established treatment program. This NPRM also retains the provisions
regarding MRO recommendations for return to duty, with the modification
that, based on the requirements of the Act, the MRO cannot recommend
return to duty if an individual has failed to comply with a specified
rehabilitation program. The FAA has chosen, however, not to propose a
definite time period during which the employee must agree to undertake
or complete the prescribed rehabilitation. This allows for the denial
phase that most people go through when first confronted with evidence
of a drug problem.
Split Specimen Testing
Split specimen testing is a procedure under which an original urine
specimen is divided into two containers, each of which is sealed,
labeled, and maintained separately. If the primary specimen tests
positive, the split or secondary specimen can be tested to ensure that
the confirmed positive was not caused by error or tampering. The FAA's
final antidrug rule was silent on the issue of split specimen testing;
however, the DOT final rule (49 CFR part 40) included a provision under
which employers could offer the option of split specimen testing (49
CFR 40.25(f)(10)(ii)). In accordance with the requirements of the Act,
DOT has revised its procedural rule to require split specimen testing
for all drug testing performed under the auspices of the FAA antidrug
rule (and those of the Federal Highway Administration, the Federal
Railroad Administration, and the Federal Transit Administration). Under
this proposal, split specimen testing would be in lieu of the right to
request a retest of the original specimen (see proposed revisions to
section VI, paragraph C of appendix I).
Both the Act and the DOT revised rule provide that an employee is
entitled to split specimen testing if the employee requests such
testing within 3 days of receiving notice of the positive test result.
However, as provided in 49 CFR part 40, a request to have a split
specimen tested made after the 3-day period must be honored if the
employee provides an adequate explanation of the delay, and in other
cases the employer may voluntarily agree to the test of the split
specimen. Finally, as proposed, no employer or agency action would be
stayed during the request period or while waiting for split specimen
test results.
Clarifying Amendments
Rule Language
This NPRM provides notice that in the final rule subsequent to this
NPRM, the FAA will amend the antidrug rule to change the terms
``passing'' and ``failing'' a drug test. All of the DOT agencies that
require drug testing, including the FAA, have received reports of some
confusion in their respective industries regarding the use of the terms
passing and failing a drug test and how those terms relate to different
drug test results (i.e., confirmed or verified positive or negative
test, cancelled tests, etc.). Currently, under the antidrug rule, an
individual does not ``fail'' a drug test until the test result has been
verified positive by a MRO. Similarly, ``passing'' a drug test requires
a verified negative test result. Although this NPRM does not include
each affected section, the final rule will change these terms wherever
they are used throughout the antidrug rule to the more accurate
``verified positive'' or ``verified negative.''
Contract Air Traffic Control Facilities
When the FAA's final antidrug rule was published in 1988, air
traffic control (ATC) facilities operated under contract with the FAA
were explicitly excluded from coverage under the rule. It was
originally intended that employees of such facilities would be included
in the FAA's program (for its own employees). Subsequently, however, it
was determined that employees of contract ATC facilities should be
subject to the FAA's rules for the aviation industry. This notice
proposes to change the definition of covered employers to include such
facilities. The FAA's air traffic control facilities and facilities
operated by the military (whether directly or by contract) would not be
affected by this proposal.
Refusal to Submit to Testing
The final antidrug rule included amendments to the airmen
certification sections of the FAA's regulations under which a refusal
to submit to testing could be the basis for a certificate action.
However, the rule did not have an express requirement for employers to
notify the FAA of refusals or a specific mechanism for providing such
notice. This proposed section (paragraph E of section VI of appendix I
to part 121) would correct this gap in the requirements of the rule. It
should be noted that the current antidrug rule with respect to the
limitation on sanctions for refusals of preemployment tests would not
be changed. As is currently the case, an individual who refuses to
submit to preemployment testing would be subject to follow-up testing
(what is now called return to duty testing) if he or she is
subsequently hired, because the individual might have refused based on
recent drug use. The individual would not, however, be subject to
certificate action for declining what is essentially a test taken
voluntarily as a precondition to performing safety-sensitive duties
(and, similarly, this rule does not propose certificate action for a
refusal to submit to the recharacterized return to duty test).
Employees Covered By the Antidrug Rule
The NPRM proposes to modify the specified safety-sensitive duties
slightly to parallel the classes of covered functions in the FAA's new
alcohol misuse prevention program rule (14 CFR part 121, appendix J).
This modification is not intended to significantly change the antidrug
rule's coverage. The most significant changes are the elimination of
flight test and ground instruction duties. The former category would be
eliminated because the FAA has determined that as a practical matter,
these duties are essentially subsumed in flight crewmember or flight
instructor duties. Ground instruction duties would be eliminated based
on the FAA's desire to reduce the burden of the antidrug rule on the
industry and the determination that individuals performing such duties
could be removed from the program without jeopardizing public safety.
Additionally, the FAA would propose an editorial change to the current
category of ``aviation security or screening duties.'' As revised,
separate categories of ``aviation screening duties'' and ``ground
security coordinator duties'' would be established. This change would
clarify the FAA's original intent with respect to covered security
functions.
Preemployment Testing
This NPRM proposes to revise the antidrug rule's preemployment
testing provision (paragraph A of section V of appendix I) to make the
provision less burdensome. The final antidrug rule required
preemployment testing before an individual could be hired to perform a
function specified in appendix I. As interpreted by the FAA, testing
was required of individuals not currently employed by the employer, of
current employees moving from a non-covered to a covered function, and
in circumstances where an employee was removed from the random testing
pool or unavailable for testing for an extended period of time.
Individuals who had failed or refused to submit to an FAA-mandated drug
test also had to pass a preemployment test prior to performing or
returning to safety-sensitive duties.
The FAA continues to believe that preemployment drug testing has
utility for those individuals who have not previously been subject to
the FAA-approved random drug testing program of an employer. However,
we have reassessed the need for preemployment testing in other
situations, such as when an employee has been on leave of absence or
working outside the territory of the United States. Therefore, the FAA
proposes to only require preemployment testing of an individual prior
to the first time the individual performs a safety-sensitive function
for an employer. Such an individual would have to pass a preemployment
test prior to performing a safety-sensitive function and the employer
could not permit the individual to perform such a function until the
employer receives a negative preemployment test result. Employers would
be permitted to require submission to preemployment testing in cases
where an employee previously subject to random testing by that employer
has been removed from the random testing pool for reasons other than a
failure of an FAA-mandated drug test or refusal to submit to such
testing.
Return to Duty and Follow-up Testing
The FAA's final antidrug rule includes the category of ``testing
after return to duty'' (paragraph F, section V, appendix I), under
which individuals who had been hired to perform or returned to the
performance of covered functions after failing or refusing to submit to
an FAA-mandated drug test must be subject to unannounced testing. As
noted above, the type of test required before returning to duty was
characterized as a preemployment test.
Based on employer reports and compliance inspections, the FAA has
determined that the nomenclature used for testing after a drug test
failure or refusal is causing confusion in the industry. Additionally,
during drafting of the alcohol testing regulations the FAA determined
that the threshold test necessary to ensure an employee is alcohol free
following a failed or refused test would be best understood if it were
called the ``return to duty test'' and unannounced testing conducted
after the individual has been placed in a covered function is more
accurately referred to as ``follow-up'' testing. The FAA proposes to
amend the section V of appendix I to reflect this nomenclature. As
revised, therefore, an individual who failed or refused a preemployment
test would have to pass another preemployment test before performing
safety-sensitive duties, and, after evaluation and compliance with any
required rehabilitation, would then be subject to follow-up testing. An
employee who failed or refused another type of test (e.g., random)
would have to pass a return to duty test before returning to the
performance of safety-sensitive duties, and would then be subject to
follow-up testing if he or she was returned to safety-sensitive duties.
Like all FAA-mandated tests, return to duty and follow up tests would
have to be performed in accordance with the requirements of appendix I
and the testing procedures in 49 CFR part 40.
The FAA is also proposing two other changes that would parallel the
provisions of the alcohol rule. The first change would be the addition
of a mandatory minimum number of drug tests during an individual's
first 12 months after being hired for or returning to the performance
of safety sensitive functions after the individual has had a verified
positive FAA-mandated drug test. As proposed the individual would have
to undergo at least six tests before follow-up testing could be
terminated. The second change would permit the employer to direct the
individual to undergo alcohol testing, as well as drug testing, if the
medical review officer determines that such testing would be
appropriate. This provision would address the situation of
polysubstance abuse.
The FAA is requesting specific comment on whether to amend the
antidrug rule to establish a minimum number of follow-up tests. The
FAA's alcohol misuse prevention program requires a minimum of six
follow-up alcohol tests in the first 12 months after an employee has
been returned to safety-sensitive duties. Several other DOT agencies
have added a similar minimum number of test to their antidrug rules.
The Federal Railroad Administration is amending its rule based on
information from its industry that indicates that medical professionals
have been reluctant to require follow-up tests.
The FAA has not had the same experience with follow-up testing; our
information indicates that aviation medical review officers are
generally establishing appropriate schedules for follow-up testing.
However, the FAA requests comment on whether a schedule for the first
year after return should be established by regulation, rather than
leaving follow-up testing entirely within the discretion of the MRO and
the employer. The FAA also seeks comment on whether six tests would be
the appropriate number or whether fewer tests should be required.
Finally, the FAA requests comments on whether requiring a minimum
number of follow-up tests would affect the likelihood that an employer
would return an individual to safety-sensitive duties after a positive
drug test.
Medical Review Officer Functions
As proposed in this NPRM, section VII of appendix I would be
substantially revised. First, changes in the DOT final rule (49 CFR
part 40), which establishes the duties of the MRO in the verification
process, have superseded the FAA's rule. Rather than reiterate the
duplicative provisions of the DOT rule, which are subject to change,
the FAA antidrug rule, as revised, would generally cite to the
applicable provisions of the DOT rule and incorporate them (and
therefore any future amendments) by reference. This is the same
approach as that taken in the FAA's current rule with regard to
specimen collection.
The MRO duties would be revised to require the MRO to inquire
whether an individual holds a part 67 airman medical certificate, to
process requests for split specimen testing, and to evaluate or refer
the individual to an SAP as discussed above. The NPRM would also
clarify the MRO's specific duties in the case of an employee or
applicant who holds a part 67 airman medical certificate or who would
be required to hold such a certificate to perform a covered function
for an employer.
Although the final antidrug rule set forth some of the MRO duties
with respect to airmen medical certificate holders, the FAA has
determined from compliance inspections that these provisions are not
sufficiently clear. The antidrug rule also did not include timeframes
for submission of the reports required to be sent to the Federal Air
Surgeon (FAS) and the address for submission is no longer correct.
These omissions have led to confusion and occasionally to significant
delays in notification to the FAS. As proposed, MROs would have 5
working days following verification of a positive test result in which
to make a determination regarding probable drug dependence. They would
be required to forward all documents pertaining to the test result,
verification, dependency, and return to duty recommendations, if any,
to the FAS within 7 working days of verifying the positive test result.
Finally, new provisions would be added to the MRO section to
clarify the issue of recordkeeping by the MRO. Although MROs currently
maintain records necessary for accomplishing their duties, essentially
as agents of employers, there was no express authorization or
requirement to maintain such records in the final antidrug rule. The
proposed section would rectify this oversight.
Antidrug Program Plan Submission
Several changes are proposed in this NPRM to the plan submission
provisions. First, the address to which plans are to be submitted would
be changed. Second, the ``transition'' provisions of the rule for new
aviation employers (paragraph A.5., section IX) would be changed to
eliminate the substantial grace period previously provided. When the
rule was first promulgated, it allowed all new covered employers a
significant period of time to develop antidrug program plans, submit
the plans to the FAA for approval, and implement the programs set forth
in the plans. The delay was necessary because the antidrug rule was new
both to the industry and to the FAA. Since the promulgation of the
rule, however, the industry and the FAA have made great strides in
incorporating drug testing in the normal course of the aviation
business. Published guidance is available from the FAA and from private
sector entities, and antidrug programs are generally running smoothly
at aviation entities of all sizes. Given the wealth of material and
experience now available, there is no longer a reason to permit
carriers to begin operations without having implemented an FAA-approved
antidrug program.
The FAA noted in the preamble to the final rule that the timeframes
for new businesses might be accelerated in the future (53 FR 47043;
November 21, 1988), and, accordingly, this NPRM proposes amending the
final rule to prohibit covered employers from beginning operations
without an approved antidrug program. The program would have to be
implemented, and all covered employees subject to testing, not later
than the inception of operations. As proposed, any person hired by a
new certificate holder to perform a covered function after the issuance
of the certificate would have to undergo preemployment testing.
Additionally, each new employer would have to ensure that employees
performing covered functions by contract were subject to an FAA-
approved antidrug program within 60 days of the implementation of the
employer's program. This requirement will impose no significant burden
on new operators and any burden is outweighed by the benefits gained by
public safety.
Third, the consortium plan submission section would be revised to
require that each consortium program must provide for notification to
the FAA of changes in membership. Finally, a new provision (section IX,
paragraph A.8.) would expressly state the now-implicit responsibility
of covered employers to ensure that they are continuously covered under
an approved antidrug program. This section reflects the FAA's
recognition of the fluid nature of the aviation industry, in which
locations, contracts, and even corporate identities are subject to
frequent changes.
Employees Located Outside the U.S.
The FAA's final antidrug rule applied to employees performing
covered functions for the specified employers regardless of whether the
employees were located within the territory of the United States or
were located in a foreign country. In recognition of the international
implications of the rule, however, the effective date of the rule with
respect to employees located outside the territory of the U.S. was
deferred on a number of occasions, most recently to January 2, 1995.
Although the FAA has been pursuing multilateral initiatives through the
International Civil Aviation Organization (ICAO), there are still
significant practical and legal concerns surrounding implementation of
the antidrug rule outside the territory of the United States. Based on
the issues and concerns that have been raised, the FAA is proposing to
substantially revise the international section of the antidrug rule
(section XII, appendix I).
As proposed, no employee located outside the territory of the
United States could be tested for illegal drug use under the provisions
of appendix I. To ensure proper selection for random testing, an
employer would be required to remove from the random testing pool any
employee assigned to perform covered functions solely outside the
territory of the United States, since such an employee would not be
available for testing. The employee would have to be returned to the
random testing pool as soon as the employee once more began to perform
functions wholly or partially within the territory of the United
States. As noted above, the employer would have the option of requiring
the employee to undergo a preemployment test prior to returning to the
performance of a covered function within the territory of the United
States (and therefore to the random testing pool). This section would
be further amended to provide that the provisions of appendix I would
not apply to employees performing functions specified in appendix I by
contract outside the territory of the United States. Although the FAA
is cognizant of concerns about safety and economic parity that would be
raised by such an exclusion, the FAA proposes that extraterritorial
application of the antidrug rule, with its significant logistical
issues and possible conflicts with local laws, should not be pursued.
Paperwork Reduction Act Approval
The recordkeeping and reporting requirements of the final antidrug
rule, issued on November 14 1988, were previously submitted to the
Office of Management and Budget (OMB) for approval in accordance with
the Paperwork Reduction Act of 1980. The OMB approval is under control
number 2120-0535. The recordkeeping and reporting requirements proposed
in this notice will be submitted to OMB for approval. Comments on these
requirements should be submitted to the Office of Information and
Regulatory Affairs (OMB), New Executive Office Building, room 3001,
Washington, DC 20503; attention: FAA Desk Officer. A copy should be
submitted to the FAA's docket. The following is a synopsis of the
paperwork burden associated with this notice:
Title: Antidrug Program for Personnel Engaged in Specified Aviation
Activities
Need for Information: This information is needed to ensure
compliance with the requirements of the FAA's antidrug rule and the
Omnibus Transportation Employee Testing Act of 1991.
Proposed Use of Information: The information submitted is intended
to be used for monitoring industry implementation of and compliance
with the FAA's antidrug rule and in evaluating the effectiveness of the
program.
Frequency:
Antidrug Program Plan: One time submission for FAA review and
approval.
Antidrug Program Plan Amendments: One time submission for FAA
review and approval as changes to plans occur or are required.
Statistical Report: Annual.
Burden Estimate: 11,993 hrs.
Respondents: Specified aviation employers.
Average Burden, Hours/Respondent/Year: 10.5 (Reporting); 1.0
(Recordkeeping).
Federalism Implications
The amendments proposed in this NPRM would not have substantial
direct effects 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, in
accordance with Executive Order 12612, the FAA has determined that this
proposal does not have sufficient federalism implications to warrant
preparation of a Federalism Assessment.
Regulatory Evaluation Summary
The FAA has determined that this proposal is not major as defined
in Executive Order 12866. Therefore, a full regulatory analysis that
includes identification and evaluation of cost-reducing alternatives to
the proposal has not been prepared. Instead, the FAA has prepared a
more concise regulatory evaluation that analyzes only this proposal.
The FAA does not expect that this proposed rule would have a
significant economic effect on a substantial number of small entities
or on international trade.
A copy of the complete regulatory evaluation, regulatory
flexibility determination, and international trade assessment has been
placed in the docket. A copy may be obtained by contacting the office
identified under ``FOR FURTHER INFORMATION CONTACT.''
Significance
This rule is not likely to result in an annual effect on the
economy of $100 million or more, although it may result in a small
increase in costs for consumers, industry, or Federal, State, or local
agencies. The FAA has determined, however, that this rule involves
issues of substantial interest to the public. Therefore, the FAA has
determined that the rule is significant under the Executive Order 12866
and the Regulatory Policies and Procedures of the Department of
Transportation (44 FR 11034; February 2, 1979).
List of Subjects
14 CFR Part 65
Aircraft, Airmen, Air safety, Air transportation, Aviation safety,
Drug abuse, Drugs, Narcotics, Safety, Transportation.
14 CFR Part 121
Air carriers, Aircraft, Aircraft pilots, Airmen, Airplanes, Air
transportation, Aviation safety, Drug abuse, Drugs, Narcotics, Pilots,
Safety, Transportation.
14 CFR Part 135
Air carriers, Aircraft, Aircraft pilots, Airmen, Airplanes, Air
taxi, Air transportation, Aviation safety, Drug abuse, Drugs,
Narcotics, Pilots, Safety, Transportation.
In consideration of the foregoing, the Federal Aviation
Administration proposes to amend 14 CFR parts 65, 121, and 135 as
follows:
Part 65--CERTIFICATION: AIRMEN OTHER THAN FLIGHT CREWMEMBERS
1. The authority citation for part 65 continues to read as follows:
Authority: 49 U.S.C. 1354(a), 1355, 1421, 1422, and 1427
(revised, Pub. L. 102-143, October 28, 1991); 49 U.S.C. 106(g)
(revised, Pub. L. 97-449, January 12, 1983).
2. Section 65.46 is amended by revising paragraphs (a)(2), (d), and
(e) and by adding paragraph (g) to read as follows:
Sec. 65.46 Use of prohibited drugs.
(a) * * *
(2) An employer means an air traffic control facility not operated
by the FAA or by or under contract to the U.S. military that employs a
person to perform an air traffic control function.
* * * * *
(d) Except as provided in paragraph (e) of this section, no
employer may knowingly use any person to perform, nor may any person
perform for an employer, either directly or by contract, any air
traffic control function if that person failed or refused to submit to
a drug test required by appendix I to part 121 of this chapter.
(e) Paragraph (d) of this section does not apply to a person who
has received a recommendation to be hired or to return to duty from a
medical review officer in accordance with appendix I to part 121 of
this chapter or who has received a special issuance medical certificate
after evaluation by the Federal Air Surgeon for drug dependency in
accordance with part 67 of this chapter, unless the person had
previously failed a drug test required under that appendix, both such
failures occurring after [THE EFFECTIVE DATE OF THE FINAL RULE].
* * * * *
(g) No employer may knowingly use any person to perform, nor may
any person perform for an employer, either directly or by contract, any
air traffic control function if that person used a prohibited drug
during the performance of an air traffic control function directly or
by contract for an employer after [THE EFFECTIVE DATE OF THE FINAL
RULE].
PART 121--CERTIFICATION AND OPERATIONS: DOMESTIC, FLAG, AND
SUPPLEMENTAL AIR CARRIERS AND COMMERCIAL OPERATORS OF LARGE
AIRCRAFT
3. The authority citation for part 121 continues to read as
follows:
Authority: 49 U.S.C. 1354(a), 1355, 1356, 1357, 1401, 1421-1430,
1485, and 1502 (revised Pub. L. 102,143, October 28, 1991); 49
U.S.C. 106(g) (revised, Pub. L. 97-449, January 12, 1983).
4. Section 121.455 is amended by revising paragraphs (c) and (d)
and by adding paragraph (e) to read as follows:
Sec. 121.455 Use of prohibited drugs.
* * * * *
(c) Except as provided in paragraph (d) of this section, no
certificate holder may knowingly use any person to perform, nor may any
person perform for a certificate holder, either directly or by
contract, any function listed in appendix I to this part if that person
failed or refused to submit to a drug test required by that appendix.
(d) Paragraph (c) of this section does not apply to a person who
has received a recommendation to be hired or to return to duty from a
medical review officer in accordance with appendix I to this part or
who has received a special issuance medical certificate after
evaluation by the Federal Air Surgeon for drug dependency in accordance
with part 67 of this chapter; provided, however, that no person shall
be permitted to perform the function specified in appendix I that he or
she was performing prior to failing a drug test if the person had
previously failed a drug test required under that appendix, both such
failures occurring after [THE EFFECTIVE DATE OF THE FINAL RULE].
(e) No certificate holder may knowingly use any person to perform,
nor may any person perform for a certificate holder, either directly or
by contract, the function specified in appendix I performed by that
person if the person used a prohibited drug during the performance of
the function directly or by contract for an employer as defined in that
appendix after [THE EFFECTIVE DATE OF THE FINAL RULE].
Appendix I to Part 121--Drug Testing Program
5. Section II (Definitions) of Appendix I is amended by revising
the first sentence of the definitions of employee and employer and by
adding the definition of substance abuse professional to read as
follows:
Appendix I to Part 121--Drug Testing Program
* * * * *
II. Definitions
* * * * *
Employee is a person who performs, either directly or by
contract, a function listed in section III of this appendix for an
employer, as defined in this appendix. * * *
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. * * *
* * * * *
Substance abuse professional means a licensed physician (Medical
Doctor or Doctor of Osteopathy), or a licensed or certified
psychologist, social worker, employee assistance professional, or
addiction counselor (certified by the National Association of
Alcoholism and Drug Abuse Counselors Certification Commission) with
knowledge of and clinical experience in the diagnosis and treatment
of disorders related to drug use and abuse.
6. Section III of Appendix I (Employees Who Must Be Tested) is
revised to read as follows:
Appendix I to Part 121--Drug Testing Program
* * * * *
III. Employees Who Must Be Tested
Each person who performs a function listed in this section
directly or by contract for an employer must be tested pursuant to
an FAA-approved antidrug program conducted in accordance with this
appendix:
a. Flight crewmember duties.
b. Flight attendant duties.
c. Flight instruction duties.
d. Aircraft dispatcher duties.
e. Aircraft maintenance or preventive maintenance duties.
f. Ground security coordinator duties.
g. Aviation screening duties.
h. Air traffic control duties.
7. Section V of Appendix I (Types of Drug Testing Required) is
amended by revising paragraphs A and F and adding a new paragraph G to
read as follows:
Appendix I to Part 121--Drug Testing Program
* * * * *
V. Types of Drug Testing Required
* * * * *
A. Preemployment Testing
1. Prior to the first time an individual performs a function
listed in section III of this appendix for an employer, the employer
shall require the individual to undergo testing for prohibited drug
use.
2. An employer is permitted to require preemployment testing of
an individual if the following criteria are met:
(a) The individual previously performed a covered function for
the employer;
(b) The employer removed the individual from the employer's
random testing program conducted under this appendix for reasons
other than a failure of an FAA-mandated drug test or a refusal to
submit to such testing; and
(c) The individual will be returning to the performance of a
function covered by this appendix.
(3) No employer shall allow an individual required to undergo
preemployment testing under section V, paragraphs A.(1) or (2) of
this appendix to perform a covered function unless the employer has
received the results of the drug test indicating that the individual
has passed the test.
(4) The employer shall advise each individual applying to
perform a covered function at the time of application that the
individual will be required to undergo preemployment testing to
determine the presence of marijuana, cocaine, opiates, phencyclidine
(PCP), and amphetamines, or a metabolite of those drugs in the
individual's system. The employer shall provide this same
notification to each individual required by the employer to undergo
preemployment testing under section V, paragraph A.(2) of this
appendix.
* * * * *
F. Return to Duty Testing
Each employer shall ensure that before an individual is returned
to duty to perform a function specified in section III of this
appendix after refusing to submit to a drug test required by this
appendix or failing a drug test conducted under this appendix, the
individual shall undergo a drug test. No employer shall allow an
individual required to undergo return to duty testing to perform a
covered function unless the employer has received the results of the
drug test indicating that the individual has passed the test.
G. Follow-up Testing
1. Each employer shall implement a reasonable program of
unannounced testing of each individual who has been hired to perform
or who has been returned to the performance of a function specified
in section III of this appendix after refusing to submit to a drug
test required by this appendix or failing a drug test conducted
under this appendix.
2. The number and frequency of such testing shall be determined
by the employer's medical review officer, but shall consist of at
least six tests in the first 12 months following the employee's
return to duty.
3. The employer may direct the employee to undergo testing for
alcohol, in addition to drugs, if the medical review officer
determines that alcohol testing is necessary for the particular
employee. Any such alcohol testing shall be conducted in accordance
with the provisions of 49 CFR part 40.
4. Follow-up testing shall not exceed 60 months after the date
the individual begins to perform or returns to the performance of a
function specified in section III of this appendix. The medical
review officer may terminate the requirement for follow-up testing
at any time after the first six tests have been conducted, if the
medical review officer determines that such testing is no longer
necessary.
8. Section VI of Appendix I (Administrative Matters) is amended by
revising paragraph C and adding paragraph E to read as follows:
Appendix I to Part 121--Drug Testing Program
* * * * *
VI. Administrative Matters
* * * * *
C. Employee Request for Test of a Split Specimen
1. Not later than 72 hours after receipt of notice of a verified
positive test result, an employee may submit a written request to
the MRO for testing of the second, ``split'' specimen obtained
during the collection of the primary specimen that resulted in the
confirmed positive test.
2. The split specimen shall be tested in accordance with the
procedures in 49 CFR part 40.
3. The MRO may proceed with verification of the primary test
result pending receipt of the result of the split specimen test. If
the primary test result is verified as positive, actions required
under this rule (e.g., notification to the Federal Air Surgeon,
removal from safety-sensitive position) are not stayed pending
receipt of the split specimen test result.
* * * * *
E. Refusal to Submit to Testing
1. Each employer shall notify the FAA of any employee who holds
a certificate issued under part 61, part 63, or part 65 who has
refused to submit to a drug test required under this appendix.
Notifications should be sent to: Federal Aviation Administration,
Aviation Standards National Field Office, Airmen Certification
Branch, AVN-460, P.O Box 25082, Oklahoma City, OK 73125.
2. Employers are not required to report refusals to submit to
preemployment testing.
9. Section VII of Appendix I is revised to read as follows:
Appendix I to Part 121--Drug Testing Program
* * * * *
VII. Medical Review Officer
The employer shall designate or appoint a medical review officer
(MRO) who shall be qualified in accordance with 49 CFR part 40 and
shall perform the functions set forth in 49 CFR part 40 and this
appendix. If the employer does not have a qualified individual on
staff to serve as MRO, the employer may contract for the provision
of MRO services as part of its drug testing program.
A. MRO Duties
In addition to the functions delineated in 49 CFR part 40, the
MRO shall perform the duties listed in this section.
1. During the MRO's interview with an employee or applicant who
has failed a drug test, the MRO shall inquire, and the individual
must disclose, whether the individual holds an airman medical
certificate issued under part 67 of this chapter or would be
required to hold such certificate in order to perform the duties of
the position for which the applicant is applying.
2. The MRO must process employee requests for testing of split
specimens in accordance with section VI, paragraph C, of this
appendix.
3. The MRO shall advise each employee who fails a drug test or
refuses to submit to a drug test required under this appendix of the
resources available to the employee in evaluating and resolving
problems associated with illegal drug use, including the names,
addresses, and telephone numbers of substance abuse professionals
and counseling and treatment programs.
4. The MRO shall evaluate, or shall have evaluated by a
substance abuse professional, each employee who fails a drug test or
refuses to submit to a drug test required under this appendix to
determine if the employee is in need of assistance in resolving
problems associated with illegal drug use.
5. Prior to recommending that an employee be returned to the
performance of a function listed in section III of this appendix
after the employee has failed or refused to submit to a drug test
required by this appendix, the MRO shall--
a. Ensure that an employee returning to the performance of a
function has passed return to duty drug test conducted under section
V., paragraph F of this appendix;
b. Ensure that each employee has been evaluated in accordance
with section VII, paragraph A.4 of this appendix; and
c. Ensure that the employee demonstrates compliance with any
rehabilitation program recommended following the evaluation required
under section VII, paragraph A.4 of this appendix.
6. The MRO shall not recommend that a person who fails to
satisfy the requirements in section VII, paragraph A.5 of this
appendix be returned to duty performing a function listed in section
III of this appendix.
7. Prior to recommending that an individual be hired to perform
a function listed in section III of this appendix after such
individual has failed or refused to submit to a pre-employment drug
test required by this appendix, the MRO shall--
a. Ensure that an individual has passed a preemployment test
conducted under section V, paragraph A, of this appendix;
b. Evaluate the individual, or have the individual evaluated by
a substance abuse professional, for drug use or abuse; and
c. Ensure that the individual has complied with the requirements
of any rehabilitation program in which the individual participated
following the preemployment test the individual failed or to which
the individual refused to submit.
B. MRO Determinations
In the case of an employee or applicant who holds an airman
medical certificate issued under part 67 of this chapter, or who is
or would be required to hold such certificate in order to perform a
function listed in section III of this appendix for an employer, the
MRO shall take the following actions after verifying a positive drug
test result.
1. In addition to the evaluation required in section VII,
paragraph A.4 of this appendix, the MRO shall make a determination
of probable drug dependence or nondependence as specified in part 67
of this chapter within 5 working days of verifying the test result.
If the MRO is unable to make such a determination, he or she should
so state in the individual's records.
2. If the MRO determines that an individual is nondependent, the
MRO may recommend that the individual be returned to duty, subject
to the requirements of section VII, paragraph A.5 of this appendix.
If the MRO makes a determination of probable drug dependence or
cannot make a dependency determination, the MRO shall not recommend
that the individual be returned to duty.
3. After making the determinations in section VII, paragraphs
B.1 and B.2 of this appendix, the MRO must forward the names of such
individuals with identifying information, the determinations
concerning dependence, return to duty recommendations, and any
supporting information to the Federal Air Surgeon within 7 working
days after verifying the positive drug test result of such
individuals.
4. All reports required under this section shall be forwarded to
the Federal Air Surgeon, Federal Aviation Administration, Attn: Drug
Abatement Division (AAM-800), 400 7th Street SW., Washington, DC
20590.
C. MRO records
Each MRO shall maintain records concerning drug tests performed
under this rule in accordance with the following provisions:
1. All records shall be maintained in confidence and shall be
released only in accordance with the provisions of this rule and 49
CFR part 40.
2. Records concerning drug tests confirmed positive by the
laboratory shall be maintained for 5 years. Such records include the
MRO copies of the custody and control form, copies of dependency
determinations where applicable, medical interviews, and any other
documentation concerning the MRO's verification process.
3. Records of confirmed negative test results shall be
maintained for 12 months.
4. All records maintained pursuant to this rule by each MRO are
subject to examination by the Administrator or the Administrator's
representative at any time.
5. Should the employer change MROs for any reason, the employer
shall ensure that the former MRO forwards all records maintained
pursuant to this rule to the new MRO within 10 working days of
receiving notice from the employer of the new MRO's name and
address.
6. Any employer obtaining MRO services by contract shall ensure
that the contract includes a recordkeeping provision that is
consistent with this paragraph, including requirements for
transferring records to a new MRO.
10. Section IX of Appendix I is amended by revising the heading and
paragraphs A(1), A(5), and A(7) and adding paragraphs A(8) and A(9) to
read as follows:
Appendix I to Part 121--Drug Testing Program
* * * * *
IX. Employer's Antidrug Program Plan
A. * * *
(1) Each employer shall submit an antidrug program plan to the
Federal Aviation Administration, Office of Aviation Medicine, Drug
Abatement Division (AAM-800), 400 7th Street, SW., Washington, DC
20590.
* * * * *
(5)(a) Any person who applies for a certificate under the
provisions of part 121 or 135 of this chapter after [THE EFFECTIVE
DATE OF THE FINAL RULE] shall submit an antidrug program plan to the
FAA for approval and must obtain such approval prior to beginning
operations under the certificate. The program shall be implemented
not later than the date of inception of operations. Contractor
employees to a new certificate holder must be subject to an FAA-
approved antidrug program within 60 days of the implementation of
the employer's program.
(b) Any person who intends to begin sightseeing operations as an
operator under 14 CFR 135.1(c) after [THE EFFECTIVE DATE OF THE
FINAL RULE] shall, not later than 60 days prior to the proposed
initiation of such operations, submit an antidrug program plan to
the FAA for approval. No operator may begin conducting sightseeing
flights prior to receipt of approval; the program shall be
implemented concurrently with the inception of operations.
Contractor employees to a new operator must be subject to an FAA-
approved program within 60 days of the implementation of the
employer's program.
(c) Any person who intends to begin air traffic control
operations as an employer as defined in 14 CFR 65.46(a)(2) (air
traffic control facilities not operated by the FAA or by or under
contract to the U.S. military) after [THE EFFECTIVE DATE OF THE
FINAL RULE] shall, not later than 60 days prior to the proposed
initiation of such operations, submit an antidrug program plan to
the FAA for approval. No air traffic control facility may begin
conducting air traffic control operations prior to receipt of
approval; the program shall be implemented concurrently with the
inception of operations. Contractor employees to a new air traffic
control facility must be subject to an FAA-approved program within
60 days of the implementation of the facility's program.
* * * * *
(7) Any entity or individual whose employees perform functions
listed in section III of this appendix pursuant to a contract with
an employer (as defined in section II of this appendix), and any
consortium of contractors or employers subject to this appendix may
submit an antidrug program plan to the FAA for approval on a form
and in a manner prescribed by the Administrator.
(a) The plan shall specify the procedures that will be used to
comply with the requirements of this appendix.
(b) Each consortium program must provide for reporting changes
in consortium membership to the FAA within 10 working days of such
changes.
(c) Each contractor or consortium shall implement its antidrug
program in accordance with the terms of its approved plan.
(8) Each air traffic control facility operating under contract
to the FAA shall submit an antidrug program plan to the FAA
(specifying the procedures for all testing required by this
appendix) not later than [90 DAYS AFTER THE EFFECTIVE DATE OF THE
FINAL RULE]. Each facility shall implement its antidrug program not
later than 60 days after approval of the program by the FAA.
Employees performing air traffic control duties by contract for the
air traffic control facility (i.e., not directly employed by the
facility) must be subject to an FAA-approved antidrug program within
60 days of implementation of the air traffic control facility's
program.
(9) Each employer, or contractor company that has submitted an
antidrug plan directly to the FAA, shall ensure that it is
continuously covered by an FAA-approved antidrug program, and shall
obtain appropriate approval from the FAA prior to changing programs
(e.g., joining another carrier's program, joining a consortium, or
transferring to another consortium).
* * * * *
11. Section XII of appendix I to part 121 is revised to read as
follows:
Appendix I to Part 121--Drug Testing Program
* * * * *
XII. Employees Located Outside the Territory of the United States
A. No individual shall undergo a drug test required under the
provisions of this appendix while located outside the territory of
the United States.
1. Each employee who is assigned to perform functions specified
in section III of this appendix solely outside the territory of the
United States shall be removed from the random testing pool upon the
inception of such assignment.
2. Each covered employee who is removed from the random testing
pool under this section shall be returned to the random testing pool
when the employee resumes the performance of safety-sensitive
functions wholly or partially within the territory of the United
States.
B. The provisions of this appendix shall not apply to any person
who performs a function listed in section III of this appendix by
contract for an employer outside the territory of the United States.
PART 135--AIR TAXI OPERATORS AND COMMERCIAL OPERATORS
12. The authority citation for part 135 continues to read as
follows:
AUTHORITY: 49 U.S.C. 1354(a), 1355(a), 1421-1431, and 1502
(revised Pub. L. 102,143, October 28, 1991); 49 U.S.C. 106(g)
(revised, Pub. L. 97-449, January 12, 1983).
13. Section 135.249 is amended by revising paragraphs (c) and (d)
and by adding paragraph (e) to read as follows:
Sec. 135.249 Use of prohibited drugs.
* * * * *
(c) Except as provided in paragraph (d) of this section, no
certificate holder or operator may knowingly use any person to perform,
nor may any person perform for a certificate holder or operator, either
directly or by contract, any function listed in appendix I to part 121
of this chapter if that person failed or refused to submit to a drug
test required by that appendix.
(d) Paragraph (c) of this section does not apply to a person who
has received a recommendation to be hired or to return to duty from a
medical review officer in accordance with appendix I to part 121 of
this chapter or who has received a special issuance medical certificate
after evaluation by the Federal Air Surgeon for drug dependency in
accordance with part 67 of this chapter; provided, however, that no
person shall be permitted to perform the function specified in appendix
I that he or she was performing prior to failing a drug test if the
person had previously failed a drug test required under that appendix,
both such failures occurring after [THE EFFECTIVE DATE OF THE FINAL
RULE].
(e) No certificate holder or operator may knowingly use any person
to perform, nor may any person perform for a certificate holder or
operator, either directly or by contract, the function specified in
appendix I to part 121 of this chapter performed by that person if the
person used a prohibited drug while performing such a function directly
or by contract for an employer as defined in that appendix after [THE
EFFECTIVE DATE OF THE FINAL RULE].
Issued in Washington, DC, on January 25, 1994.
Federico Pena,
Secretary of Transportation.
David R. Hinson,
Administrator.
[FR Doc. 94-2033 Filed 2-14-94; 1:00 pm]
BILLING CODE 4910-13-P