Antidrug Program for Personnel Engaged in Specified Aviation Activities

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