Antidrug Program and Alcohol Misuse Prevention Program for Employees of Foreign Air Carriers Engaged in Specified Aviation Activities

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 121 and 129

[Docket No. 27066; Notice No. 92-18]

RIN 2120-AE79

Antidrug Program and Alcohol Misuse Prevention Program for

Employees of Foreign Air Carriers Engaged in Specified Aviation

Activities

AGENCY: Federal Aviation Administration, DOT.

ACTION: Withdrawal of proposed rule.

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SUMMARY: The Omnibus Transportation Employee Testing Act of 1991 (the

Act) authorized the Federal Aviation Administration (FAA) Administrator

to prescribe regulations that would require foreign air carriers to

establish drug and alcohol testing programs for employees performing

safety-sensitive aviation functions, but only to the extent such

regulations are consistent with the international obligations of the

United States and take into consideration any applicable laws and

regulations of foreign countries. This document withdraws the proposed

rulemaking to require foreign air carriers to establish drug and

alcohol testing programs for their employees performing safety-

sensitive aviation functions within the territory of the United States.

The FAA has determined that through the International Civil Aviation

Organization (ICAO) multilateral action has been taken to support an

aviation environment free of substance abuse. However, if the threat to

aviation safety posed by substance abuse has increased or requires

additional efforts and the international community has not adequately

responded, the FAA will take appropriate action, including, if

necessary, the reinitiation of this rulemaking.

DATES: The proposed rule is withdrawn as of January 13, 2000.

FOR FURTHER INFORMATION CONTACT: Ms. Diane J. Wood, Office of Aviation

Medicine, Drug Abatement Division (AAM-800), Federal Aviation

Administration, 800 Independence Ave., SW., Washington, DC 20591;

telephone (202) 267-8442.

SUPPLEMENTARY INFORMATION:

Background

In the Omnibus Transportation Employee Testing Act of 1991, the

Administrator was authorized, among other things, to prescribe

regulations requiring foreign air carriers to implement drug and

alcohol testing programs, but only if such regulations as were

consistent with the international obligations of the United States. The

Administrator was also directed to take into consideration foreign laws

and regulations.

Pursuant to this statute, in December 1992, the FAA issued an

advance notice of proposed rulemaking (ANPRM) in which a number of

questions about the legal, practical, and cultural issues associated

with testing were posed [57 FR 59473]. The FAA received 65 comments on

the ANPRM, most of which were provided by foreign governments of

foreign air carriers. Nineteen of the comments were procedural,

requesting an extension of the comment period. Three comments were

received that supported the concept of unilateral imposition of testing

requirements on foreign air carriers. The remaining comments stated

objection in whole or in part to the possible unilateral imposition of

testing requirements on foreign air carriers in the United States. In

February 1994, the FAA issued a notice of proposed rulemaking (NPRM) to

require foreign air carriers operating to the United States to

implement testing programs like those required of U.S. carriers unless

multilateral action was taken to support an international aviation

environment free of substance abuse [59 FR 7420].

The FAA cited as a specific example of such action the work in

progress by an International Civil Aviation Organization (ICAO) working

group to develop guidance material on substance abuse prevention

methodologies. ICAO is a treaty organization through which the

signatory countries (known as the ``Contracting States'') develop and

promote safe and efficient international aviation. There are currently

more than 180 Contracting States (including the United States),

covering virtually every part of the world. The Contracting States

[[Page 2080]]

look to ICAO for standards, recommended practices, and guidance on

issues related to aviation.

A significant number of the foreign governments for foreign air

carriers that responded to the NPRM expressed support for deferring to

ICAO to take action on substance abuse prevention. Their comments also

reiterated the concerns expressed following publication of the ANPRM,

with further discussion of the possible adverse consequences and costs

that would likely follow any imposition of mandatory testing programs.

Several commenters noted that the laws of the jurisdiction in which

their employees are hired could prohibit employers from complying with

mandatory testing regulations imposed by the United States.

The commenters that favored imposition of regulations requiring

drug and alcohol testing on foreign air carriers primarily raised two

issues: first, that safety demands imposition of the regulations; and

second, that U.S. carriers would be placed at a competitive

disadvantage by being required to incur costs not faced by foreign air

carriers.

With respect to the first concern, the FAA remains committed to

ensuring aviation safety. However, in light of recent ICAO action, as

well as the significant practical and legal concerns that have been

raised by the commenters, it does not appear that this rulemaking at

this time is the best way to ensure that safety is not compromised.

Because of the ICAO action, the FAA has determined that unilateral

imposition of testing regulations on foreign air carriers is not

warranted.

Several factors were weighed in making this determination. The FAA

has an active program to assess whether foreign air carriers are held

to international standards by their countries of registry--standards

that include medical requirements for flight crewmembers and a

prohibition on the operation of aircraft by impaired pilots.

Also, on February 24, 1998, the 153rd Session of the ICAO Council

met and adopted amendments to the Standards and Recommended Practices

contained in Appendix A of the Chicago Convention. Specifically, a

Standard was adopted which applies to individuals, and prohibits them

from performing safety-critical functions while under the influence of

any psychoactive substance. A psychoactive substance is defined as

``alcohol, opioids, cannabinoids, sedatives and hypnotics, cocaine,

other psychostimulents, hallucinogens, and volatile solvents, whereas

coffee and tobacco are excluded.'' The Standards are required to appear

within the domestic regulations of each Contracting State, unless the

Contracting State has filed a difference with ICAO to disavow the

Standard. The ICAO Council also adopted a Recommended Practice which

encourages the Contracting States to identify and remove personnel who

engage in problematic use of substances. The Recommended Practice

incorporates the ``Manual on Prevention of Problematic Use of

Substances in the Aviation Workplace,'' ICAO Document 9654-AN/945

(``Manual''), the English version of which was published in September

1995. The FAA has reviewed this document and has determined that it

clearly supports a safe aviation environment.

As set forth in the first paragraph of the Manual, ICAO recognizes

that ``[a]viation workers have a special obligation to ensure that they

are capable of performing their duties to the best of their abilities.

Similarly, aviation regulatory authorities and industry employers have

a special obligation to ensure that aviation safety is maintained at a

high level and that precautions necessary to achieve this are

implemented.'' Id. at para.1.1 The Manual further establishes ICAO's

concurrence with the position of the FAA that ``[e]specially in

international aviation, it is fair to say that the responsibility for

hundreds of human lives and vast quantities of valuable property

resting with safety-sensitive personnel in civil aviation make it

imperative that these workers perform their duties in a professional

manner and without any impairment in performance due to substance

use.'' Id. at para. 1.15 Finally, ICAO also recognizes that far from

being simply a U.S. problem, as some commenters to this rulemaking have

asserted, ``[i]t is necessary that aviation regulators and employers

recognize that substance use is a pandemic affecting most if not all

parts of the world.'' They must also realize that ``any employee may be

susceptible to the pressures and influences of the professional and

social environment or certain life events, and it would be dangerous to

assume that aviation is not vulnerable to t he consequences of these

pressures and influences. Prevention efforts should not be delayed

until a significant problem has been identified. Responding only after

an accident has occurred or public trust has been broken defeats the

purpose of prevention.'' Id at para. 1.20 (emphasis added).

The other issue raised by commenters is that of competitive

disadvantage. While the FAA is cognizant of the costs of the antidrug

rules to domestic carriers, those costs alone do not warrant imposition

of similar regulations on foreign air carriers when compared to recent

multilateral actions as well as the legal and practical difficulties in

imposing such rules. The FAA has also determined that the antidrug

rules provide significant benefits to U.S. air carriers in terms of

increased worker productivity, reduced absenteeism and medical costs,

and other benefits associated with workplace substance abuse prevention

programs. Further, companies with active prevention programs could be

perceived by travelers (especially those in the United States) as safer

than companies without such programs providing another benefit to

domestic carriers.

Withdrawal of Proposed Rule

For the foregoing reasons, the FAA is withdrawing the rulemaking

proposed on February 15, 1994, and is leaving within the purview of

each government the method chosen to respond to the ICAO initiatives.

We will continue to view a multilateral response as the best approach

to evolving issues in the substance abuse arena. Should the FAA

subsequently determine, however,that the scope of the threat of

substance abuse is not being adequately addressed by the international

community, the FAA will take appropriate action, including the possible

reinitiation of this rulemaking.

Issued in Washington, DC, on January 10, 2000.

Robert Poole,

Acting Federal Air Surgeon.

[FR Doc. 00-862 Filed 1-12-00; 8:45 am]

BILLING CODE 4910-13-M