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. 94-2]

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: Notice of proposed rulemaking (NPRM).

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

Act) directs the Federal Aviation Administration (FAA) Administrator to

prescribe regulations that require foreign air carriers to establish

drug and alcohol testing programs for employees performing safety-

sensitive aviation functions. The Act also specifies that the

Administrator shall only prescribe regulations that are consistent with

the international obligations of the United States and take into

consideration any applicable laws and regulations of foreign countries.

This notice proposes 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

unless multilateral action is taken that supports an aviation

environment free of substance abuse.

DATES: Comments must be received on or before May 16, 1994. Additional

notice of rulemaking may be given based on the comments received.

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. 27066, 800 Independence Avenue, SW.,

Washington, DC 20591. Comments that are delivered to this address must

be marked ``Docket No. 27066.'' 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: 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:

Comments Invited

Interested persons are invited to participate in the making of a

proposed rule by submitting such written data, views, suggestions, or

arguments as they may desire. Communications should identify the

regulatory docket or notice number and be submitted in triplicate to

the address above. All communications received on or before the closing

date for comments will be considered by the Administrator before

rulemaking action is taken. Persons wishing the FAA to acknowledge

receipt of their comments must submit with those comments a self-

addressed stamped postcard on which the following statement is made:

``Comments to Docket No. 27066.'' The postcard will be dated and time

stamped and returned to the commenter. All comments submitted will be

available for review in the Rules Docket, both before and after the

comment closing date. A report summarizing each substantive public

contact with the FAA personnel concerned with this rulemaking will also

be filed in the docket. Any comments provided to the docket in the

preliminary portion of this rulemaking will be considered prior to any

final action and need not be resubmitted.

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. The request 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.

Current Laws & Regulations

The Omnibus Transportation Employee Testing Act of 1991 (Pub. L.

102-143, Title V) was enacted on October 28, 1991. Among other things,

the Act adds a new section 614 to the Federal Aviation Act of 1958

(FAAct). Section 614(a)(1) of the FAAct (49 U.S.C. 1434(a)(1)) directs

the Administrator to prescribe regulations requiring the testing of air

carrier and foreign air carrier employees for the use of alcohol and

controlled substances. Section 614(e)(3) of the FAAct (49 U.S.C.

1434(e)(3)) further directs that ``the Administrator shall only

establish requirements applicable to foreign air carriers that are

consistent with the international obligations of the United States, and

the Administrator shall take into consideration any applicable laws and

regulations of foreign countries.'' The requirement to publish

regulations applicable to foreign air carriers is consistent with other

requirements of the Act to publish similar regulations for other modes

of transportation.

Discussion

Pursuant to the requirements of the Act, this notice proposes to

require foreign air carriers to establish antidrug and alcohol misuse

programs like those required of U.S. carriers by January 1, 1996. The

FAA is optimistic that recent efforts at the International Civil

Aviation Organization (ICAO) will result in satisfactory multilateral

action to prevent substance abuse in the international workplace, which

consistent with the Act, could make FAA rulemaking unnecessary.

The FAA has general statutory authority to regulate safety in civil

aviation under the FAAct. As recognized in section 1108 of the FAAct,

the United States of America has complete and exclusive national

sovereignty in the airspace of the United States (49 U.S.C. app.

1508(a)).

Pursuant to the Act, the FAA has the option of not imposing testing

requirements on foreign air carriers if the FAA determines, based upon

future developments within ICAO, that an FAA testing rule is not

required. If no U.S. rule is to be adopted or the instant proposal

warrants modification pursuant to ICAO action, the FAA will publish

notice of such decision. Further analysis of the issue in light of any

comments received in response to this notice also could assist the FAA

in making the determination.

The FAA is encouraged by recent developments at ICAO, and has

determined that an international agreement would be the preferred

alternative to unilateral actions by individual ICAO member States. The

FAA remains committed to the multilateral process underway at ICAO and

will not require testing if a satisfactory alternative is reached

through bilateral or multilateral action. In the event that such is not

forthcoming, the FAA is now seeking comments on the implementation of a

direct application of U.S. drug testing requirements to foreign air

carriers.

Discussion of Comments on ANPRM

The FAA recognized that foreign countries and foreign air carriers

would have many concerns regarding the possible application of testing

regulations to foreign air carrier employees. We therefore published an

advance notice of proposed rulemaking (ANPRM) on this same subject in

which we asked a number of questions about the legal, practical, and

cultural issues associated with testing. The comment period for the

NPRM, originally set for 60 days, was extended an additional 45 days to

allow for translation of documents and coordination with management or

government officials outside the United States. Many useful and cogent

comments were received in response to the ANPRM and will be considered

by the FAA prior to any final rulemaking. It is not necessary for

commenters to this NPRM to resubmit those comments.

The FAA received 65 comments on the ANPRM, most of which were

provided by foreign governments or 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.

Two of these were from trade associations for the U.S. air carriers

(Regional Airline Association (RAA) and Air Transport Association

(ATA)), and one was from a U.S. labor organization (Airline Dispatchers

Federation (ADF)). Both RAA and ATA stated that foreign air carriers

would have a competitive advantage if they did not have to implement

testing programs that are required of U.S. air carriers. ATA and ADF

stated that passenger safety required holding safety-sensitive

employees of foreign carriers to the same standard as similar employees

of U.S. air carriers.

The remaining comments were from foreign governments, foreign trade

and labor associations, and foreign air carriers. These commenters

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

testing requirements on foreign air carriers in the United States.

International Law

Most of the foreign air carriers and foreign governments commenting

on the ANPRM asserted that any regulation that unilaterally required

foreign air carriers to implement substance abuse testing programs

would violate international law, exceeding the generally recognized

limits to extraterritorial jurisdiction. A number of commenters also

stated that testing requirements would conflict with foreign laws or

regulations, primarily those affecting labor relations and privacy

rights.

The majority of these commenters also asserted that unilateral

action by the United States to impose a testing requirement would

impermissibly implicate the qualifications of airmen, in contravention

of the Chicago Convention. Airmen certification or licensure is within

the jurisdiction of the country of aircraft registry (Chicago

Convention art. 32), and each member State must recognize certificates

and licenses issued by other States, as long as minimum standards are

met (id., art. 33). The commenters assert that these provisions

prohibit the United States from imposing additional certification

requirements on otherwise qualified and certificated crewmembers.

Finally, a few commenters, among them the Embassy of Belgium,

stated that under the applicable bilateral agreement, the United States

would have to request consultations prior to imposing any new safety

requirement.

Discussion

The testing program discussed in this notice is well within the

FAA's authority to regulate the safe operation of aircraft within the

territory of the United States (Chicago Convention art. 11). The FAA

desires further comments, if any, on this point and further seeks

comments addressing any legal problems with regards to the proposed

testing.

Financial and Operational Concerns

Many of the commenters noted that it was difficult to estimate the

likely cost of implementing programs since the ANPRM did not propose

any specific requirements. They also noted, however, that it was likely

that imposition of drug and alcohol testing requirements could have a

disproportionate financial impact on foreign carriers. British Airways

(BA), for example, stated that it schedules its crews on flights from

London to the U.S. West Coast under very tight time and duty

constraints and does not generally have replacement crew available. For

example, if an individual crewmember were selected for testing, the

additional time required for the testing could put the individual

beyond the allowable duty time. BA states that the flight would then

have to be delayed, resulting in significant costs to BA.

Other commenters noted that imposing any regulations under which

foreign air carrier employees or their urine samples would have to be

transported to the United States for testing would pose significant

increased costs on foreign air carriers.

FAA Response

In evaluating the international implications of its substance abuse

programs for U.S. carriers, the FAA has become aware of the

difficulties associated with evaluating testing programs established in

foreign countries and with the FAA's compliance monitoring activities

outside the U.S. The regulatory evaluation does examine the system

delay costs for foreign air carriers although it does not presume to

determine how an individual air carrier would conduct testing or

calculate the costs for an individual program.

International Civil Aviation Organization (ICAO)

A significant number of commenters noted that the ICAO was

established under the Chicago Convention specifically to address issues

of general applicability to international civil aviation. Many of these

commenters supported proceeding through the ICAO process to reach a

multilateral consensus on ways to achieve the ultimate goal of civil

aviation workplaces free of substance abuse.

FAA RESPONSE

As noted in the ANPRM, the Act directs the Secretaries of State and

Transportation to call on the member countries of the ICAO to

strengthen and enforce existing standards to prohibit the use, in

violation of law or Federal regulation, of alcohol or a controlled

substance by crew members in international civil aviation (Section

614(e)(3) of the FAAct; 49 U.S.C. app. 1434(e)(3)).

The FAA is aware that the problem of substance abuse may be

different in the United States than in other countries. Some countries,

for example, may have little or no problem with illegal drug use but a

significant problem with workplace alcohol misuse. Further, other

countries may have difficulty implementing U.S. testing and laboratory

standards. It is for that reason that we prefer a multilateral solution

through ICAO that would enable each country to tailor its substance

abuse prevention efforts to its particular needs.

On September 30, 1992, a resolution offered by the United States,

which was co-sponsored by a number of other countries, was introduced

at the 29th General Assembly of ICAO in furtherance of this legislative

directive (ICAO Document A29-WP/67; EX/17; 3/9/92). The resolution was

approved by the Assembly and states that the Assembly:

1. Declares its strong support for making and maintaining civil

aviation workplaces free of substance abuse and encourages

cooperative efforts throughout the international civil aviation

community to educate employees on the dangers of substance abuse,

and to take steps, when deemed necessary, to detect and deter such

use, and through such efforts, to ensure that substance abuse never

becomes prevalent or tolerated within civil aviation;

2. Urges the Council to accord a high degree of priority . . .

to expediting the development and publication of guidance material

containing measures which may be implemented by Contracting States .

. . ;

3. Requests the Council to continue its efforts to monitor:

(a) the existence and growth of the threat to the safety of

international civil aviation posed by substance abuse; and

(b) efforts by Contracting States to implement preventive

measures; and

4. Requests the Council to present a report on the

implementation of this Resolution to the next ordinary session of

the Assembly.

The member States of ICAO unanimously adopted this resolution,

which indicates that substance abuse is recognized as a threat to

international civil aviation safety. Since the adoption of the Assembly

resolution, ICAO has made substantial progress in developing the

mandated guidance material. On December 14, 1993, the ICAO group

charged with developing the material adopted an outline including

sections on education, treatment and rehabilitation, and testing. The

group expects its work to be completed, and the guidance material

published, by the end of 1994.

The FAA commends ICAO for its progress thus far and reiterates the

United States commitment to resolve the problem of drug and alcohol

misuse by transportation workers through this multilateral process.

The FAA remains optimistic that an international solution will be

reached. However, to protect the public safety in the event a

multilateral solution is not reached through ICAO, the FAA is

continuing to develop an alternative testing requirement; the FAA must

ensure that it has in place regulations to address the threat posed

today by substance abuse in the event that ICAO's efforts do not come

to fruition in a timely fashion or are otherwise inadequate.

Discussion of the Proposed Rule

The FAA proposes to require foreign air carriers to establish

antidrug and alcohol misuse prevention programs by January 1, 1996.

Testing would be conducted using the procedures established by the

Office of the Secretary of Transportation in 49 CFR part 40. Additional

requirements or more specific guidance on implementation issues would

be published as needed by the FAA. However, the FAA will not require

foreign air carriers to establish antidrug and alcohol misuse programs

if a multilateral action is taken by ICAO that supports an aviation

environment free of substance abuse.

The proposal reflects the FAA's use of substance abuse testing as

the primary tool for detecting and deterring substance abuse by safety-

sensitive aviation employees, especially illegal drug use. It is a

prevention/identification methodology that could be applied under

stringent regulatory conditions throughout the international aviation

community, especially in the context of suspected substance abuse. The

FAA recognizes that testing does not address all of the complex issues

raised by substance abuse and that prevention/identification efforts

targeting workplace substance abuse would serve to increase aviation

safety. The FAA prefers a multilateral solution, and although testing

is being proposed, the FAA may defer the compliance date or reconsider

the necessity of the rule if appropriate international action is taken.

The FAA would publish a notice accordingly.

The FAA recognizes that imposing testing requirements on foreign

air carriers could raise legal and technical implementation problems

that could hinder achieving the ultimate goal of an international

aviation environment free of substance abuse. The FAA invites comments

on these issues. The FAA would prefer not to require testing if

multilateral action or a series of bilateral agreements can be

obtained.

Paperwork Reduction Act Approval

The proposal would require foreign air carriers operating within

the territory of the United States to maintain records regarding drug

and alcohol testing conducted by the foreign air carrier and to submit

such records to the FAA or to provide access to such records to the

Administrator upon request.

In accordance with the Paperwork Reduction Act of 1980 (Pub. L. 96-

511), if recordkeeping and reporting requirements are included in the

final rule, they will be submitted to the Office of Management and

Budget (OMB) for approval after supplemental notice is given in the

Federal Register.

Economic Summary

This Notice of Proposed Rulemaking (NPRM) serves to fulfill part of

the requirements of the FAA-related provisions of the Omnibus

Transportation Employee Testing Act of 1991 (the Act), which was

enacted October 28, 1991. Congress has imposed a statutory obligation

on the FAA Administrator to prescribe regulations that, among other

things, establish an alcohol misuse testing program for air carrier

employees who perform safety-sensitive duties. The Act also directs the

FAA Administrator to prescribe regulations that require foreign air

carriers to establish drug and alcohol misuse testing programs for

employees performing safety-sensitive aviation functions. Such

regulations must be consistent with the international obligations of

the United States and take into consideration any applicable laws and

regulations of foreign air carriers.

The FAA proposes to require foreign air carriers to establish anti-

drug and alcohol misuse prevention programs by January 1, 1996, that

are consistent with the international obligations of the United States.

However, there would be no requirements if multilateral efforts to

ensure an aviation environment free of substance abuse are reached or

actions towards this end make an FAA testing rule unnecessary.

The proposed rule would apply the existing anti-drug program and

the new alcohol misuse prevention program to all part 129 air carriers.

The anti-drug rule for domestic air carriers was published in 1988 and

has been in effect since 1990. The alcohol misuse program for domestic

air carriers will take effect in 1995. This proposed rule would require

part 129 air carriers to begin implementing both such programs in

January 1996.

Costs

The FAA estimated the number of part 129 employees subject to both

drug and alcohol testing. These employees include all part 129 pilots,

copilots, instructors, engineers, and navigators, part 129 flight

attendants, and mechanics and repairmen who are employed by part 129

air carriers.

The FAA assumes that foreign air carriers would set up their anti-

drug and alcohol misuse programs similar to those of domestic air

carriers. Hence, this analysis applies the assumptions described and

used in the anti-drug and alcohol misuse prevention regulatory

evaluations for domestic air carriers to foreign air carriers.

The applicable costs for the program include the program

development costs, the Management Information System (M.I.S.) annual

reporting costs, the costs for the individual type of tests, the

setting up of an Employee Assistance Program (EAP) (applicable only for

the anti-drug program), and system delay costs. The ten year discounted

costs for the anti-drug and alcohol misuse preventions programs range

from $17.8 million to $24.5 million.

Benefits

The FAA's objective in proposing requiring mandatory anti-drug and

alcohol misuse programs is to foster an environment free of drug use

and alcohol misuse for personnel engaged in critical aviation safety

occupations. The public expects, and is entitled to, an aviation

environment free of substance abuse and misuse.

The FAA has determined that major benefits would accrue from these

proposals. The first would be the prevention of potential injuries and

fatalities and property losses resulting from accidents attributed to

individuals whose judgement or motor skills may have been impaired by

the presence of drugs or alcohol. The second would be the potential

reduction in absenteeism, lost worker productivity, medical costs, and

improved general safety in the workplace by the deterrence of alcohol

misuse.

At this time, neither drug use nor alcohol misuse has been cited

officially as a causative factor of any part 129 commercial aircraft

accident. The absence of accidents, however, cannot be the baseline by

which to measure the existence of a drug or alcohol problem in the

aviation industry. No statistical database is available from which to

estimate how many accidents were the consequence of impairment by drugs

or alcohol of a pilot or any other safety-sensitive employee.

The FAA examined the seating capacity, average passenger load, and

average replacement cost of a representative sample of both narrow-body

and wide-body airplanes, in addition to the cost of the National

Transportation Safety Board (NTSB) investigations. In calculating

benefits, the FAA also evaluated the increased productivity from

employees who are deterred from alcohol misuse. The total quantifiable

discounted benefits that would result from promulgation of this

proposed rule amount to $87.4 million discounted over ten years.

Cost/Benefit Analysis

In the Act, Congress imposed a statutory obligation on the FAA to

prescribe regulations that, among other things, establish anti-drug and

alcohol misuse testing programs for employees of part 129 air carriers

who perform safety-sensitive duties. The FAA has evaluated the cost of

setting up and administering these substance abuse and misuse programs,

and found that the ten-year discounted costs range from $17.8 million

to $24.5 million. This is less than the ten-year discounted benefits of

$87.4 million. Accordingly, the FAA finds these programs to be cost

beneficial.

Initial Regulatory Flexibility Determination

The Regulatory Flexibility Act of 1980 (RFA) was enacted by

Congress to ensure that small U.S. entities are not unnecessarily

burdened by government regulations. The RFA requires agencies to review

rules that may have a ``significant economic impact on a substantial

number of small entities.'' Because this proposed rule would only

affect foreign carriers, the RFA is not applicable.

International Trade Impact Statement

In accordance with the Office of Management and Budget memorandum

dated March 1983, federal agencies engaged in rulemaking activities are

required to assess the effects of regulatory change on international

trade. This proposed rule, if adopted, would place the same regulatory

requirements on foreign air carriers that currently exist for U.S. air

carriers (anti-drug abuse program) or are proposed for U.S. air

carriers (alcohol misuse program). It is not expected that the proposed

rule would have an adverse effect on trade opportunities for either

U.S. firms doing business overseas or foreign firms doing business in

the United States. While there would be increased costs to foreign

carriers as a consequence of this proposed rule, these costs will be

offset by the benefits and an increase in public confidence.

Federalism Implications

Any rule arising from this NPRM will not have substantial direct

effects on the States, on the relationship between the national

government and the States, on the distribution of power and

responsibilities among various levels of government. Therefore, in

accordance with Executive Order 12612, the FAA has determined that this

does not have sufficient federalism implications to warrant preparation

of a Federalism Assessment.

Significance

This notice of proposed rulemaking does not constitute a

``significant regulatory action'' under Executive Order 12866. It does

involve issues of substantial interest to the public, however, and the

FAA has therefore determined that the NPRM is significant under the

Regulatory Policies and Procedures of the Department of Transportation

(44 FR 11034; February 2, 1979).

Issued in Washington, DC, on January 25, 1994.

Federico Pena,

Secretary of Transportation.

David R. Hinson,

Administrator.

[FR Doc. 94-2035 Filed 2-3-94; 1:00 pm]

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