Disqualification for Airman and Airman Medical Certificate Holders Based on Alcohol Violations or Refusals To Submit to Drug and Alcohol Testing, 35760-35765 [E6-9814]
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Federal Register / Vol. 71, No. 119 / Wednesday, June 21, 2006 / Rules and Regulations
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 61, 63, 65, 67, 91, 121,
and 135
[Docket No.: FAA–2004–19835: Amendment
No. 61–114 , 63–34, 65–47, 67–19, 91–291,
121–325, 135–105]
RIN 2120–AH82
Disqualification for Airman and Airman
Medical Certificate Holders Based on
Alcohol Violations or Refusals To
Submit to Drug and Alcohol Testing
Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule.
AGENCY:
SUMMARY: This final rule changes the
airman medical certification standards
to disqualify an airman based on an
alcohol test result of 0.04 or greater
breath alcohol concentration (BAC) or a
refusal to take a drug or alcohol test
required by the Department of
Transportation (DOT) or a DOT agency.
Further, this rulemaking standardizes
the time period for reporting refusals
and certain test results to the FAA, and
requires employers to report preemployment and return-to-duty test
refusals. It also amends the airman
medical certification requirements to
allow suspension or revocation of
airman medical certificates for preemployment and return-to-duty test
refusals. Finally, we have updated the
regulations to recognize current breath
alcohol testing technology. These
amendments are necessary to ensure
that persons who engage in substance
abuse do not operate aircraft or perform
contract air traffic control duties until it
is determined that these individuals can
safely exercise the privileges of their
certificates.
These amendments become
effective July 21, 2006.
FOR FURTHER INFORMATION CONTACT: For
technical information, Sherry M. de
Vries, Aeromedical Standards and
Substance Abuse Branch, Medical
Specialties Division, AAM–210, Office
of Aerospace Medicine, Federal
Aviation Administration, 800
Independence Avenue, SW.,
Washington, DC 20591; telephone (202)
267–8693. For legal information,
Michael Chase, Office of the Chief
Counsel, AGC–200, Federal Aviation
Administration, 800 Independence
Avenue, SW., Washington, DC 20591;
telephone (202) 267–8442.
SUPPLEMENTARY INFORMATION:
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DATES:
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Availability of Rulemaking Documents
You can get an electronic copy using
the Internet by:
(1) Searching the Department of
Transportation’s electronic Docket
Management System (DMS) Web page
(http://dms.dot.gov/search);
(2) Visiting the FAA’s Regulations and
Policies web page at http://
www.faa.gov/regulations_policies/; or
(3) Accessing the Government
Printing Office’s Web page at
http://www.gpoaccess.gov/fr/
index.html.
You can also get a copy by sending a
request to the Federal Aviation
Administration, Office of Rulemaking,
ARM–1, 800 Independence Avenue,
SW., Washington, DC 20591, or by
calling (202) 267–9680. Make sure to
identify the amendment number or
docket number of this rulemaking.
Anyone is able to search the
electronic form of all comments
received into any of our dockets by the
name of the individual submitting the
comment (or signing the comment, if
submitted on behalf of an association,
business, labor union, etc.). You may
review DOT’s complete Privacy Act
statement in the Federal Register
published on April 11, 2000 (Volume
65, Number 70; Pages 19477–78) or you
may visit http://dms.dot.gov.
Small Business Regulatory Enforcement
Fairness Act
The Small Business Regulatory
Enforcement Fairness Act (SBREFA) of
1996 requires FAA to comply with
small entity requests for information or
advice about compliance with statutes
and regulations within its jurisdiction. If
you are a small entity and you have a
question regarding this document, you
may contact its local FAA official, or the
persons listed under FOR FURTHER
INFORMATION CONTACT. You can find out
more about SBREFA on the Internet at
http://www.faa.gov/avr/arm/sbrefa.cfm.
Authority for This Rulemaking
The FAA’s authority to issue rules
regarding aviation safety is found in
Title 49 of the United States Code.
Subtitle I, Section 106 describes the
authority of the FAA Administrator.
Subtitle VII, Aviation Programs,
describes in more detail the scope of the
agency’s authority.
This rulemaking is promulgated
under the authority described in
Subtitle VII, Part A, Chapter 447,
Section 44703, Airman Certificates, and
Chapter 451, Section 45102, Alcohol
and Controlled Substances Testing
Programs. Under Section 44703, the
FAA is authorized to issue an airman
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certificate to an individual who ‘‘is
qualified for, and physically able to
perform the duties related to, the
position to be authorized by the
certificate.’’ Under Section 45102, the
FAA is charged with prescribing
regulations to establish programs for
drug and alcohol testing of employees
performing safety-sensitive functions for
air carriers and to take certificate or
other action when an employee violates
the testing regulations. This regulation
is within the scope of the FAA’s
authority because it updates the existing
regulations regarding airman
certification of individuals who have
violated the drug and alcohol testing
regulations or who have otherwise
demonstrated a substance abuse history
through violation of State or local laws
involving driving while intoxicated/
driving under the influence. This
rulemaking is a current example of the
FAA’s continuing efforts to ensure that
only drug- and alcohol-free individuals
perform safety-sensitive duties.
Discussion of Comments
General Overview
The FAA has revised regulations that
apply to airmen who fail or refuse a
drug or alcohol test. These changes
conform the FAA’s regulations to
changes in DOT’s and our own drug and
alcohol testing regulations.
The comment period for the notice of
proposed rulemaking (NPRM), (69 FR
74898) closed on March 14, 2005. The
FAA received approximately 30
comments in response to the NPRM.
Commenters included the Experimental
Aircraft Association (EAA); the Air Line
Pilots Association, International
(ALPA); and the Drug and Alcohol
Testing Industry Association (DATIA).
The majority of commenters favored
the proposed changes. Approximately
20 commenters favored all of the
proposals, and some of these
commenters encouraged stricter
standards including zero tolerance for
alcohol consumption by pilots. Many of
the commenters stated they approved of
the proposals because they enhance
safety. Three commenters raised issues
disagreeing with one or more of the
proposals. The remaining commenters
offered suggestions, some of which were
outside the scope of this rulemaking.
Should a refusal be a medically
disqualifying condition?
ALPA disagreed with the proposal to
define a refusal as a medically
disqualifying condition. ALPA asserted
substance abuse is a recognized medical
condition under the American
Psychiatric Association’s Diagnostic and
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Statistical Manual of Mental Disorders
(DSM). In ALPA’s opinion, the FAA
should not mix the medical standards
with non-medical policy concerns.
ALPA acknowledges the current drug
and alcohol testing regulations require
such pilots to be removed from duty,
evaluated and rehabilitated. However,
ALPA takes exception with a separate
diagnosis of substance abuse arising
from a single confirmed alcohol test
result or a refusal.
The Federal Air Surgeon sets the
standards for airman medical
certification based on sound medical
judgement in reference to the aviation
environment. Thus, while the Federal
Air Surgeon may reference sources such
as DSM, DSM is not the only basis for
determining airman medical
certification standards.
This final rule does not attempt to
mix medical standards with nonmedical policy concerns in this
rulemaking, instead it merely
harmonizes the FAA’s medical
certification requirements with the
DOT’s and FAA’s drug and alcohol
testing requirements. As ALPA notes,
the DOT’s and FAA’s drug and alcohol
testing regulations already recognize a
positive drug test result, an alcohol test
result of 0.04 or greater BAC, and a
refusal as substance abuse requiring
rehabilitation before the individual can
be returned to perform a safety-sensitive
function. In addition, regardless of
whether the airman resumes the
performance of safety-sensitive
functions, the FAA’s medical
certification regulations already require
an airman to demonstrate that he or she
meets the standards in part 67 following
a positive drug test result or BAC of 0.04
or greater.
The Omnibus Transportation
Employees Testing Act of 1990, Title 49,
United States Code, sections 45101–
45105, already requires that every
individual who violates the drug or
alcohol testing regulations must be
rehabilitated before that individual can
be returned to the performance of a
safety-sensitive function. (49 U.S.C.
section 45103(b)) Since 2000, the DOT’s
regulations have required that,
following a violation of the drug or
alcohol testing regulations and before
returning an individual to work, the
employer must have a Substance Abuse
Professional (SAP) make ‘‘a face-to-face
clinical assessment and evaluation to
determine what assistance is needed by
the employee to resolve problems
associated with alcohol and/or drug
use.’’ (49 CFR section 40.293)
Incidentally, prior to the DOT’s final
rule published in 2000, 65 FR 79462
(December 19, 2000), establishing the
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current 49 CFR part 40, the SAP had
discretion to determine whether an
employee needed substance abuse
assistance. The DOT removed this
discretion in the final rule, stating ‘‘we
believe that there are no circumstances
in which it is appropriate for a SAP to
find that a violator of our regulations is
not in need of education and/or
treatment.’’ 65 FR at 79508.
When should reports of refusals and
drug and alcohol test results be sent to
the FAA?
In the NPRM, we proposed
standardizing the time period for
reporting drug test results and refusals
to 2 days. EAA opposed changing the
notification for drug test results from 12
working days to 2 working days.
Instead, EAA recommended a 7 working
day notification requirement.
We have decided to adopt the
amendment as proposed because we are
not accelerating the schedule for drug
test or refusal verification, we are
merely requiring an administrative
change to report the results to the FAA
within 2 days for alcohol test results,
drug test results, and refusal
verifications. These changes ensure
violations are reported to the FAA in a
more timely manner. This
standardization of 2 days will make the
reporting requirements clear and
consistent for employers and their
service agents. The FAA notes that
while we proposed to change the refusal
reporting requirement for drug testing to
2 days, we inadvertently omitted the
rule language for making a similar
change to the alcohol refusal reporting
requirement. We have corrected this
omission.
How do driving under the influence
(DUI) violations affect pilot certificate
holders?
EAA questioned how DOT agencies
and state and local law authorities
would report such information to the
FAA. EAA suggested new forms would
be needed, and the FAA failed to
account for this cost. This association
also believed the proposed rule would
significantly affect pilot certificate
holders who have received a DUI for
drugs or alcohol. In addition, EAA
asked if pilots are allowed one DUI
before their medical certificate is
revoked, saying that aviation medical
examiners (AME) currently forgive the
first DUI. Also, EAA inquired whether
a pilot would be suspended for 0.04 or
less BAC. EAA said it is not clear
whether a DUI or a positive test result
not related to flying can result in the
loss of the airman’s medical certificate.
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This final rule only standardizes the
reporting periods as described earlier,
and does not change the existing
reporting requirements for DUI or other
drug or alcohol violations found by DOT
agencies, state, or local law authorities.
Therefore, new forms are not necessary.
Pilot certificate holders who receive a
DUI already encounter consequences
under the existing FAA regulations. A
pilot with one DUI can be evaluated by
the AME to determine if there is an
alcohol abuse problem. Similarly, the
AME is required to defer issuance of a
new medical certificate to the Federal
Air Surgeon if the airman has refused a
DOT alcohol test or has a DOT alcohol
violation. As we explained in the
preamble to the NPRM, the FAA has
taken medical certificate action against
pilots for one alcohol-related event.
Although test results below 0.04 are not
required to be reported to the FAA, it is
possible, in certain circumstances, the
pilot’s medical certificate will be
suspended or revoked for an alcohol test
result of less than 0.04 BAC. However,
under the FAA’s regulations, an
employer must remove a pilot from the
performance of safety-sensitive work if
the pilot has an alcohol test result
between 0.02 and less than 0.04 BAC.
The pilot cannot be returned to safetysensitive work until he or she has an
alcohol test result below 0.02 BAC or
until the pilot’s next scheduled duty
period, but not less than 8 hours
following the administration of the test.
Yes, an individual can lose his or her
medical certificate for a DUI, DWI, test
result, or refusal unrelated to flying.
Losing a medical certificate for conduct
unrelated to flying is not a new
consequence resulting from this final
rule.
How does an employer know when a
medical certificate is valid?
EAA noted that it can be confusing for
an employer to know if a medical
certificate is valid after an employee has
had a drug or alcohol violation. The
association suggested specific language
on this point.
In response to EAA’s comments, we
modified part 121, appendix I, section
VII.C.2 to include clarifying language.
We also modified part 121, appendix J,
section V.C.4 to add the clarifying
language and to make it consistent with
the corresponding section in appendix I.
An employer can refer to these sections
for direction on medical certificate
validity.
Miscellaneous Comments
The FAA received numerous
comments outside the scope of the
proposals. They included: applying
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medical certification to mechanics and
others performing safety-sensitive
functions; zero alcohol tolerance;
conducting breath alcohol testing
immediately before each flight; reducing
the breath alcohol concentration
standard from 0.04 to 0.02 BAC;
increasing the BAC standard above 0.04
BAC; increasing the timeframe of
prohibition of substance abuse in the
medical certification standards to
extend longer than 2 years. We have not
addressed them in this rulemaking.
Paperwork Reduction Act
The FAA described the information
collection requirements associated with
reporting the results of drug and alcohol
testing in OMB control number 2120–
0535. This NPRM would add the
requirement to report refusals to take
return-to-duty and pre-employment
tests. This is an extremely small
additional burden because these reports
are already generated and sent to the
employer under 49 CFR part 40 and 14
CFR part 121, appendices I and J, and
are accounted for in OMB control
number 2125–0529. Under the new
requirement, employers would merely
send these already existing reports on to
the FAA, resulting in a total annual
burden of fewer than 2 hours across the
industry. Specifically, we estimate the
annual burden associated with this
NPRM to be 1.75 hours to the private
sector, costing $35.00. The annual
burden to the Federal Government
would be 7 hours, costing $138.95.
Because this burden is extremely small,
we will not change Paperwork Burden
Submission OMB control number 220–
0535 at this time, but we will include
the extra 1.75 hours in the next renewal
in 2008.
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International Compatibility
In keeping with U.S. obligation under
the Convention on International Civil
Aviation, it is FAA policy to comply
with International Civil Aviation
Organization (ICAO) Standards and
Recommended Practices (SARPs) to the
maximum extent practicable. SARPs do
not address disqualification of an
airman based on a refusal to take a
required drug or alcohol test.
Executive Order 12866 and DOT
Regulatory Policies and Procedures
Executive Order 12866, Regulatory
Planning and Review, directs the FAA
to assess both the costs and the benefits
of a regulatory change. We are not
allowed to propose or adopt a regulation
unless we make a reasoned
determination that the benefits of the
intended regulation justify the costs.
Our assessment of this rulemaking
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indicates that its economic impact is
minimal. This action imposes minimal
copying, mailing, and faxing costs on
small entities subject to this rule.
Because the costs and benefits of this
action do not make it a ‘‘significant
regulatory action’’ as defined in the
Order, we have not prepared a
‘‘regulatory evaluation,’’ which is the
written cost/benefit analysis ordinarily
required for all rulemaking under the
DOT Regulatory Policies and
Procedures. We do not need to do a full
evaluation where the economic impact
of a rule is minimal.
Regulatory Evaluation, Regulatory
Flexibility Analysis, International Trade
Impact Assessment, and Unfunded
Mandate Assessment
Changes to Federal regulations must
undergo several economic analyses.
First, Executive Order 12866 directs that
each Federal agency shall propose or
adopt a regulation only upon a reasoned
determination that the benefits of the
intended regulation justify its costs.
Second, the Regulatory Flexibility Act
of 1980 requires agencies to analyze the
economic impact of regulatory changes
on small entities. Third, the Trade
Agreements Act (19 U.S.C. 2531–2533)
prohibits agencies from setting
standards that create unnecessary
obstacles to the foreign commerce of the
United States. In developing U.S.
standards, this Trade Act requires
agencies to consider international
standards and, where appropriate, to be
the basis of U.S. standards. Fourth, the
Unfunded Mandates Reform Act of 1995
(Pub. L. 104–4) requires agencies to
prepare a written assessment of the
costs, benefits, and other effects of
proposed or final rules that include a
Federal mandate likely to result in the
expenditure by State, local, or tribal
governments, in the aggregate, or by the
private sector, of $100 million or more
annually (adjusted for inflation). This
portion of the preamble summarizes the
FAA’s analysis of the economic impacts
of this final rule.
The Department of Transportation
Order DOT 2100.5 prescribes policies
and procedures for simplification,
analysis, and review of regulations. If
the expected cost impact is so minimal
that a proposal does not warrant a full
evaluation, this order permits a
statement to that effect. The basis for the
minimal impact must be included in the
preamble, if a full regulatory evaluation
of the cost and benefits is not prepared.
Such a determination has been made for
this rule. The reasoning for this
determination follows.
This final rule amends the airman
medical certification standards to
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disqualifiy an airman based on an
alcohol test result of 0.04 or greater BAC
or a refusal to take a required drug or
alcohol test. This rule enhances safety
by ensuring that persons who engage in
substance abuse do not operate aircraft
or perform contract air traffic control
tower operations until it is determined
that these individuals can operate
safely. This rulemaking does not impose
additional drug and alcohol testing
requirements. It only imposes reporting
requirements on the aviation industry
and the FAA. This final rule will have
a minimal impact with positive net
benefits, and a regulatory evaluation
was not prepared.
The FAA has, therefore, determined
this rulemaking action is not a
‘‘significant regulatory action’’ as
defined in section 3(f) of Executive
Order 12866, and is not ‘‘significant’’ as
defined in DOT’s Regulatory Policies
and Procedures. In addition, the FAA
has determined that this rulemaking
action: (1) Will not have a significant
economic impact on a substantial
number of small entities; (2) will not
affect international trade; and (3) will
not impose an unfunded mandate on
state, local, or tribal governments, or on
the private sector.
Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980
(RFA) establishes ‘‘as a principle of
regulatory issuance that agencies shall
endeavor, consistent with the objective
of the rule and of applicable statutes, to
fit regulatory and informational
requirements to the scale of the
business, organizations, and
governmental jurisdictions subject to
regulation.’’ To achieve that principle,
the RFA requires agencies consider
flexible regulatory proposals, to explain
the rationale for their actions, and to
solicit comments. The RFA covers a
wide-range of small entities, including
small businesses, not-for-profit
organizations and small governmental
jurisdictions.
Agencies must perform a review to
determine whether a proposed or final
rule will have a significant economic
impact on a substantial number of small
entities. If the agency determines that it
will, the agency must prepare a
regulatory flexibility analysis as
described in the RFA.
However, if an agency determines that
a proposed or final rule is not expected
to have a significant economic impact
on a substantial number of small
entities, section 605(b) of the RFA
provides that the head of the agency
may so certify and a regulatory
flexibility analysis is not required. The
certification must include a statement
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providing the factual basis for this
determination, and the reasoning should
be clear.
This action imposes minimal copying,
mailing, and faxing costs on small
entities subject to this rule.
Consequently, as the FAA
Administrator, I certify that the
rulemaking action will not have a
significant economic impact on a
substantial number of small entities.
International Trade Impact Assessment
The Trade Agreements Act of 1979
prohibits Federal agencies from
establishing any standards or engaging
in related activities that create
unnecessary obstacles to the foreign
commerce of the United States.
Legitimate domestic objectives, such as
safety, are not considered unnecessary
obstacles. The statute also requires
consideration of international standards
and, where appropriate, that these
international standards be the basis for
U.S. standards. The FAA has assessed
the potential effect of this rulemaking
action and has determined that it only
impacts domestic activities and will not
have any trade-sensitive activity.
excluded from preparation of a National
Environmental Policy Act
environmental impact statement. In
accordance with FAA Order 1050.1D,
appendix 4, paragraph 4(J) this NPRM
qualifies for a categorical exclusion.
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Authority: 49 U.S.C. 106(g), 40113, 44701–
44703, 44707, 44709–44711, 45102–45103,
45301–45302.
2. Revise § 61.14, paragraph (a) to read
as follows:
I
§ 61.14 Refusal to submit to a drug or
alcohol test.
List of Subjects
14 CFR Part 61
Aircraft, Airmen, Alcohol abuse,
Aviation safety, Drug abuse, Recreation
and recreation areas, Reporting and
recordkeeping requirements, Security
measures, Teachers.
14 CFR Part 63
Aircraft, Airmen, Alcohol abuse,
Aviation safety, Drug abuse, Navigation
(air), Reporting and recordkeeping
requirements, Security measures.
14 CFR Part 65
Air traffic controllers, Aircraft,
Airmen, Airports, Alcohol abuse,
Aviation safety, Drug abuse, Reporting
and recordkeeping requirements,
Security measures.
(a) This section applies to an
individual who holds a certificate under
this part and is subject to the types of
testing required under appendix I to
part 121 or appendix J to part 121 of this
chapter.
*
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PART 63—CERTIFICATION: FLIGHT
CREWMEMBERS OTHER THAN
PILOTS
3. The authority citation for part 63
continues to read as follows:
I
Authority: 49 U.S.C. 106(g), 40113, 44701–
44703, 44707, 44709–44711, 45102–45103,
45301–45302.
4. Revise § 63.12b, paragraph (a) to
read as follows:
I
§ 63.12b Refusal to submit to a drug or
alcohol test.
Unfunded Mandate Assessment
The Unfunded Mandates Reform Act
of 1995 (the Act) is intended, among
other things, to curb the practice of
imposing unfunded Federal mandates
on State, local, and tribal governments.
Title II of the Act requires each Federal
agency to prepare a written statement
assessing the effects of any Federal
mandate in a proposed or final agency
rule that may result in an expenditure
of $100 million or more (adjusted
annually for inflation) in any one year
by State, local, and tribal governments,
in the aggregate, or by the private sector.
The FAA currently uses an inflationadjusted value of $120.7 million in lieu
of $100 million.
This final rule does not contain such
a mandate. The requirements of Title II
do not apply.
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14 CFR Part 67
Airmen, Authority delegation
(Government agencies), Health,
Reporting and recordkeeping
requirements.
(a) This section applies to an
individual who holds a certificate under
this part and is subject to the types of
testing required under appendix I to
part 121 or appendix J to part 121 of this
chapter.
*
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*
*
*
14 CFR Part 135
§ 65.23 Refusal to submit to a drug or
alcohol test.
Executive Order 13132, Federalism
The FAA has analyzed this proposed
rule under the principles and criteria of
Executive Order 13132, Federalism. We
have determined that this action would
not have a substantial direct effect on
the States, on the relationship between
the national Government and the States,
or on the distribution of power and
responsibilities among the various
levels of government, and therefore
would not have federalism implications.
Air taxis, Aircraft, Airmen, Alcohol
abuse, Aviation safety, Drug abuse, Drug
testing, Reporting and recordkeeping
requirements.
(a) General. This section applies to an
individual who holds a certificate under
this part and is subject to the types of
testing required under appendix I to
part 121 or appendix J to part 121 of this
chapter.
*
*
*
*
*
I 7. Revise § 65.46a, paragraph (f) to
read as follows:
Environmental Analysis
FAA Order 1050.1D defines FAA
actions that may be categorically
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14 CFR Part 91
Afghanistan, Agriculture, Air traffic
control, Aircraft, Airmen, Airports,
Aviation safety, Canada, Cuba, Ethiopia,
Freight, Mexico, Noise control, Political
candidates, Reporting and
recordkeeping requirements,
Yugoslavia.
14 CFR Part 121
Air carriers, Aircraft, Airmen, Alcohol
abuse, Aviation safety, Charter flights,
Drug abuse, Drug testing, Reporting and
recordkeeping requirements, Safety,
Transportation.
The Amendment
In consideration of the foregoing, the
Federal Aviation Administration
amends Chapter I of Title 14 parts 61,
63, 65, 67, 91,121, and 135 of the Code
of Federal Regulations as follows:
I
PART 61—GENERAL
1. The authority citation for part 61
continues to read as follows:
I
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PART 65—CERTIFICATION: AIRMEN
OTHER THAN FLIGHT
CREWMEMBERS
5. The authority citation for part 65
continues to read as follows:
I
Authority: 49 U.S.C. 106(g), 40113, 44701–
44703, 44707, 44709–44711, 45102–45103,
45301–45302.
6. Revise § 65.23, paragraph (a) to read
as follows:
I
§ 65.46a
Misuse of alcohol.
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*
*
*
*
(f) Refusal to submit to a required
alcohol test. A covered employee may
not refuse to submit to any alcohol test
required under appendix J to part 121 of
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29 of the Convention on International Civil
Aviation (61 stat. 1180).
8. The authority citation for part 67
continues to read as follows:
I
Authority: 49 U.S.C. 106(g), 40113, 44701–
44703, 44707, 44709–44711, 45102–45103,
45301–45303.
9. Revise § 67.107, paragraph (b)(2) to
read as follows:
I
Mental.
*
*
*
*
*
(b) * * *
(2) A verified positive drug test result,
an alcohol test result of 0.04 or greater
alcohol concentration, or a refusal to
submit to a drug or alcohol test required
by the U.S. Department of
Transportation or an agency of the U.S.
Department of Transportation; or
*
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*
*
*
I 10. Revise § 67.207, paragraph (b)(2)
to read as follows:
§ 67.207
Mental.
*
*
*
*
*
(b) * * *
(2) A verified positive drug test result,
an alcohol test result of 0.04 or greater
alcohol concentration, or a refusal to
submit to a drug or alcohol test required
by the U.S. Department of
Transportation or an agency of the U.S.
Department of Transportation; or
*
*
*
*
*
I 11. Revise § 67.307, paragraph (b)(2)
to read as follows:
§ 67.307
Definitions.
*
*
Refusal to submit means that an employee
engages in conduct including but not limited
to that described in 49 CFR 40.191.
I
PART 67—MEDICAL STANDARDS AND
CERTIFICATION
§ 67.107
§ II.
13. Revise § 91.17 paragraphs (a)(4),
(c)(1) introductory text and (c)(2) to read
as follows:
this chapter. An employer may not
permit an employee who refuses to
submit to such a test to perform or
continue to perform safety-sensitive
functions.
Mental.
*
*
*
*
*
(b) * * *
(2) A verified positive drug test result,
an alcohol test result of 0.04 or greater
alcohol concentration, or a refusal to
submit to a drug or alcohol test required
by the U.S. Department of
Transportation or an agency of the U.S.
Department of Transportation; or
*
*
*
*
*
§ 91.17
*
Alcohol or drugs.
(a) * * *
(4) While having an alcohol
concentration of 0.04 or greater in a
blood or breath specimen. Alcohol
concentration means grams of alcohol
per deciliter of blood or grams of
alcohol per 210 liters of breath.
*
*
*
*
*
(c) * * *
(1) On request of a law enforcement
officer, submit to a test to indicate the
alcohol concentration in the blood or
breath, when—
*
*
*
*
*
(2) Whenever the FAA has a
reasonable basis to believe that a person
may have violated paragraph (a)(1),
(a)(2), or (a)(4) of this section, on request
of the FAA, that person must furnish to
the FAA the results, or authorize any
clinic, hospital, or doctor, or other
person to release to the FAA, the results
of each test taken within 4 hours after
acting or attempting to act as a
crewmember that indicates an alcohol
concentration in the blood or breath
specimen.
*
*
*
*
*
PART 121—OPERATING
REQUIREMENTS: DOMESTIC, FLAG,
AND SUPPLEMENTAL OPERATIONS
14. The authority citation for part 121
continues to read as follows:
I
Authority: 49 U.S.C. 106(g), 40113, 40119,
41706, 44101, 44701–44703, 44705, 44709–
44711, 44713, 44716–44717, 44722, 44901,
44903–44904, 44912, 45101–45105, 46105.
15. Revise § 121.458, paragraph (f) to
read as follows:
I
§ 121.458
Misuse of alcohol.
I
jlentini on PROD1PC65 with RULES3
PART 91—GENERAL OPERATING AND
FLIGHT RULES
*
*
*
*
(f) Refusal to submit to a required
alcohol test. A covered employee must
not refuse to submit to any alcohol test
required under appendix J to this part.
A certificate holder must not permit an
employee who refuses to submit to such
a test to perform or continue to perform
safety-sensitive functions.
12. The authority citation for part 91
continues to read as follows:
Appendix I to Part 121—Drug Testing
Program
Authority: 49 U.S.C. 106(g), 1155, 40103,
40113, 40120, 44101, 44111, 44701, 44709,
44711, 44712, 44715, 44716, 44717, 44722,
46306, 46315, 46316, 46504, 46506–46507,
47122, 47508, 47528–47531, articles 12 and
I
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19:48 Jun 20, 2006
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*
16. Amend section II of Appendix I to
part 121 by revising the definition of
‘‘refusal to submit’’ as follows:
*
*
*
*
*
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*
*
*
*
*
*
*
17. Amend section VI of Appendix I
to part 121 by revising paragraph D.1 as
follows and removing and reserving
paragraph D.2.
I
§ VI.
Administrative and Other Matters.
*
*
*
*
*
D. Refusal to Submit to Testing.
1. Each employer must notify the FAA
within 2 working days of any employee who
holds a certificate issued under part 61, part
63, or part 65 of this chapter who has refused
to submit to a drug test required under this
appendix. Notification must be sent to:
Federal Aviation Administration, Office of
Aerospace Medicine, Drug Abatement
Division (AAM–800), 800 Independence
Avenue, SW., Washington, DC 20591, or by
fax to (202) 267–5200.
*
*
*
*
*
18. Amend section VII of Appendix I
by revising paragraphs C.1, C.2, C.3, C.4
and adding paragraph C.6 to read as
follows:
I
VII. Medical Review Officer/Substance Abuse
Professional, and Employer Responsibilities.
*
*
*
*
*
C. Additional Medical Review Officer,
Substance Abuse Professional, and Employer
Responsibilities Regarding 14 CFR part 67
Airman Medical Certificate Holders.
1. As part of verifying a confirmed positive
test result or refusal to submit to a test, the
MRO must ask and the individual must
answer whether he or she holds an airman
medical certificate issued under 14 CFR part
67 or would be required to hold an airman
medical certificate to perform a safetysensitive function for the employer. If the
individual answers in the affirmative to
either question, in addition to notifying the
employer in accordance with 49 CFR part 40,
the MRO must forward to the Federal Air
Surgeon, at the address listed in paragraph 5,
the name of the individual, along with
identifying information and supporting
documentation, within 2 working days after
verifying a positive drug test result or refusal
to submit to a test.
2. During the SAP interview required for a
verified positive test result or a refusal to
submit to a test, the SAP must ask and the
individual must answer whether he or she
holds or would be required to hold an airman
medical certificate issued under 14 CFR part
67 of this chapter to perform a safetysensitive function for the employer. If the
individual answers in the affirmative, the
individual must obtain an airman medical
certificate issued by
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Federal Register / Vol. 71, No. 119 / Wednesday, June 21, 2006 / Rules and Regulations
the Federal Air Surgeon dated after the
verified positive drug test result date or
refusal to test date. After the individual
obtains this airman medical certificate, the
SAP may recommend to the employer that
the individual may be returned to a safetysensitive position. The receipt of an airman
medical certificate does not alter any
obligations otherwise required by 49 CFR
part 40 or this appendix.
3. An employer must forward to the
Federal Air Surgeon within 2 working days
of receipt, copies of all reports provided to
the employer by a SAP regarding the
following:
(a) An individual who the MRO has
reported to the Federal Air Surgeon under
section VII.C.1 of this appendix; or
(b) An individual who the employer has
reported to the Federal Air Surgeon under
section VI.D of this appendix.
4. The employer must not permit an
employee who is required to hold an airman
medical certificate under 14 CFR part 67 to
perform a safety-sensitive duty to resume that
duty until the employee has:
(a) Been issued an airman medical
certificate from the Federal Air Surgeon after
the date of the verified positive drug test
result or refusal to test; and
(b) Met the return to duty requirements in
accordance with 49 CFR part 40.
available for post-accident testing as required
by this appendix.
*
*
*
*
*
20. Amend section IV of Appendix J
to part 121 by revising paragraph
A.2(a)(2) to read as follows:
I
IV. HANDLING OF TEST RESULTS,
RECORD RETENTION, AND
CONFIDENTIALITY
*
*
*
*
*
2. Period of Retention.
(a) * * *
*
*
*
*
*
*
*
*
*
21. Amend section V of Appendix J to
Part 121 by revising paragraph (C)(4) to
read as follows:
C. * * *
*
*
*
*
19. Amend section I.D. of Appendix J
to part 121 by revising the definition of
‘‘refusal to submit’’ as follows:
4. No covered employee who is required to
hold an airman medical certificate in order
to perform a safety-sensitive duty may
perform that duty following a violation of
this appendix until the covered employee
obtains an airman medical certificate issued
by the Federal Air Surgeon dated after the
alcohol test result or refusal to test date. After
the covered employee obtains this airman
medical certificate, the SAP may recommend
to the employer that the covered employee
may be returned to a safety-sensitive
position. The receipt of an airman medical
certificate does not alter any obligations
otherwise required by 49 CFR part 40 or this
appendix.
I. GENERAL.
*
*
*
*
*
*
6. MROs, SAPs, and employers who send
reports to the Federal Air Surgeon must keep
a copy of each report for 5 years.
*
*
*
*
*
Appendix J to Part 121—Alcohol
Misuse Prevention Program
I
*
*
*
*
*
*
*
*
*
*
jlentini on PROD1PC65 with RULES3
Refusal to submit means that a covered
employee has engaged in conduct including
but not limited to that described in 49 CFR
40.261, or has failed to remain readily
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19:48 Jun 20, 2006
*
*
*
*
22. Amend section V of Appendix J to
Part 121 by revising paragraph (D)(1) to
read as follows:
I
D. Definitions. * * *
Jkt 208001
D. Notice of Refusals
1. Except as provided in subparagraph 2 of
this paragraph D, each covered employer
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*
*
*
*
PART 135—OPERATING
REQUIREMENTS: COMMUTER AND
ON-DEMAND OPERATIONS AND
RULES GOVERNING PERSONS ON
BOARD SUCH AIRCRAFT
23. The authority citation for part 135
is amended to read as follows:
I
*
I
*
must notify the FAA within 2 working days
of any employee who holds a certificate
issued under part 61, part 63, or part 65 of
this chapter who has refused to submit to an
alcohol test required under this appendix.
Notification must be sent to: Federal Aviation
Administration, Office of Aerospace
Medicine, Drug Abatement Division (AAM–
800), 800 Independence Avenue, SW.,
Washington, DC 20591, or by fax to (202)
267–5200.
*
(2) Records of notifications to the Federal
Air Surgeon of refusals to submit to testing
and violations of the alcohol misuse
prohibitions in this chapter by covered
employees who hold medical certificates
issued under part 67 of this chapter.
35765
Authority: 49 U.S.C. 106(g), 41706, 40113,
44701–44702, 44705, 44709, 44711–44713,
44715–44717, 44722, 45101–45105.
24. Revise § 135.253, paragraph (f) to
read as follows:
I
§ 135.253
Misuse of alcohol.
*
*
*
*
*
(f) Refusal to submit to a required
alcohol test. A covered employee may
not refuse to submit to any alcohol test
required under appendix J to part 121 of
this chapter.
An operator or certificate holder may
not permit an employee who refuses to
submit to such a test to perform or
continue to perform safety-sensitive
functions.
Issued in Washington, DC, on June 15,
2006.
Marion C. Blakey,
Administrator.
[FR Doc. E6–9814 Filed 6–20–06; 8:45 am]
BILLING CODE 4910–13–P
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]]>Agencies
[Federal Register Volume 71, Number 119 (Wednesday, June 21, 2006)]
[Rules and Regulations]
[Pages 35760-35765]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-9814]
[[Page 35759]]
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Part III
Department of Transportation
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Federal Aviation Administration
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14 CFR Parts 61, 63 et al.
Disqualification for Airman and Airman Medical Certificate Holders
Based on Alcohol Violations or Refusals To Submit to Drug and Alcohol
Testing; Final Rule
Federal Register / Vol. 71, No. 119 / Wednesday, June 21, 2006 /
Rules and Regulations
[[Page 35760]]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 61, 63, 65, 67, 91, 121, and 135
[Docket No.: FAA-2004-19835: Amendment No. 61-114 , 63-34, 65-47, 67-
19, 91-291, 121-325, 135-105]
RIN 2120-AH82
Disqualification for Airman and Airman Medical Certificate
Holders Based on Alcohol Violations or Refusals To Submit to Drug and
Alcohol Testing
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule changes the airman medical certification
standards to disqualify an airman based on an alcohol test result of
0.04 or greater breath alcohol concentration (BAC) or a refusal to take
a drug or alcohol test required by the Department of Transportation
(DOT) or a DOT agency. Further, this rulemaking standardizes the time
period for reporting refusals and certain test results to the FAA, and
requires employers to report pre-employment and return-to-duty test
refusals. It also amends the airman medical certification requirements
to allow suspension or revocation of airman medical certificates for
pre-employment and return-to-duty test refusals. Finally, we have
updated the regulations to recognize current breath alcohol testing
technology. These amendments are necessary to ensure that persons who
engage in substance abuse do not operate aircraft or perform contract
air traffic control duties until it is determined that these
individuals can safely exercise the privileges of their certificates.
DATES: These amendments become effective July 21, 2006.
FOR FURTHER INFORMATION CONTACT: For technical information, Sherry M.
de Vries, Aeromedical Standards and Substance Abuse Branch, Medical
Specialties Division, AAM-210, Office of Aerospace Medicine, Federal
Aviation Administration, 800 Independence Avenue, SW., Washington, DC
20591; telephone (202) 267-8693. For legal information, Michael Chase,
Office of the Chief Counsel, AGC-200, Federal Aviation Administration,
800 Independence Avenue, SW., Washington, DC 20591; telephone (202)
267-8442.
SUPPLEMENTARY INFORMATION:
Availability of Rulemaking Documents
You can get an electronic copy using the Internet by:
(1) Searching the Department of Transportation's electronic Docket
Management System (DMS) Web page (http://dms.dot.gov/search);
(2) Visiting the FAA's Regulations and Policies web page at http://
www.faa.gov/regulations_policies/; or
(3) Accessing the Government Printing Office's Web page at http://
www.gpoaccess.gov/fr/index.html.
You can also get a copy by sending a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make
sure to identify the amendment number or docket number of this
rulemaking.
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit
http://dms.dot.gov.
Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires FAA to comply with small entity requests for information
or advice about compliance with statutes and regulations within its
jurisdiction. If you are a small entity and you have a question
regarding this document, you may contact its local FAA official, or the
persons listed under FOR FURTHER INFORMATION CONTACT. You can find out
more about SBREFA on the Internet at http://www.faa.gov/avr/arm/
sbrefa.cfm.
Authority for This Rulemaking
The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the United States Code. Subtitle I, Section 106
describes the authority of the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more detail the scope of the agency's
authority.
This rulemaking is promulgated under the authority described in
Subtitle VII, Part A, Chapter 447, Section 44703, Airman Certificates,
and Chapter 451, Section 45102, Alcohol and Controlled Substances
Testing Programs. Under Section 44703, the FAA is authorized to issue
an airman certificate to an individual who ``is qualified for, and
physically able to perform the duties related to, the position to be
authorized by the certificate.'' Under Section 45102, the FAA is
charged with prescribing regulations to establish programs for drug and
alcohol testing of employees performing safety-sensitive functions for
air carriers and to take certificate or other action when an employee
violates the testing regulations. This regulation is within the scope
of the FAA's authority because it updates the existing regulations
regarding airman certification of individuals who have violated the
drug and alcohol testing regulations or who have otherwise demonstrated
a substance abuse history through violation of State or local laws
involving driving while intoxicated/driving under the influence. This
rulemaking is a current example of the FAA's continuing efforts to
ensure that only drug- and alcohol-free individuals perform safety-
sensitive duties.
Discussion of Comments
General Overview
The FAA has revised regulations that apply to airmen who fail or
refuse a drug or alcohol test. These changes conform the FAA's
regulations to changes in DOT's and our own drug and alcohol testing
regulations.
The comment period for the notice of proposed rulemaking (NPRM),
(69 FR 74898) closed on March 14, 2005. The FAA received approximately
30 comments in response to the NPRM. Commenters included the
Experimental Aircraft Association (EAA); the Air Line Pilots
Association, International (ALPA); and the Drug and Alcohol Testing
Industry Association (DATIA).
The majority of commenters favored the proposed changes.
Approximately 20 commenters favored all of the proposals, and some of
these commenters encouraged stricter standards including zero tolerance
for alcohol consumption by pilots. Many of the commenters stated they
approved of the proposals because they enhance safety. Three commenters
raised issues disagreeing with one or more of the proposals. The
remaining commenters offered suggestions, some of which were outside
the scope of this rulemaking.
Should a refusal be a medically disqualifying condition?
ALPA disagreed with the proposal to define a refusal as a medically
disqualifying condition. ALPA asserted substance abuse is a recognized
medical condition under the American Psychiatric Association's
Diagnostic and
[[Page 35761]]
Statistical Manual of Mental Disorders (DSM). In ALPA's opinion, the
FAA should not mix the medical standards with non-medical policy
concerns. ALPA acknowledges the current drug and alcohol testing
regulations require such pilots to be removed from duty, evaluated and
rehabilitated. However, ALPA takes exception with a separate diagnosis
of substance abuse arising from a single confirmed alcohol test result
or a refusal.
The Federal Air Surgeon sets the standards for airman medical
certification based on sound medical judgement in reference to the
aviation environment. Thus, while the Federal Air Surgeon may reference
sources such as DSM, DSM is not the only basis for determining airman
medical certification standards.
This final rule does not attempt to mix medical standards with non-
medical policy concerns in this rulemaking, instead it merely
harmonizes the FAA's medical certification requirements with the DOT's
and FAA's drug and alcohol testing requirements. As ALPA notes, the
DOT's and FAA's drug and alcohol testing regulations already recognize
a positive drug test result, an alcohol test result of 0.04 or greater
BAC, and a refusal as substance abuse requiring rehabilitation before
the individual can be returned to perform a safety-sensitive function.
In addition, regardless of whether the airman resumes the performance
of safety-sensitive functions, the FAA's medical certification
regulations already require an airman to demonstrate that he or she
meets the standards in part 67 following a positive drug test result or
BAC of 0.04 or greater.
The Omnibus Transportation Employees Testing Act of 1990, Title 49,
United States Code, sections 45101-45105, already requires that every
individual who violates the drug or alcohol testing regulations must be
rehabilitated before that individual can be returned to the performance
of a safety-sensitive function. (49 U.S.C. section 45103(b)) Since
2000, the DOT's regulations have required that, following a violation
of the drug or alcohol testing regulations and before returning an
individual to work, the employer must have a Substance Abuse
Professional (SAP) make ``a face-to-face clinical assessment and
evaluation to determine what assistance is needed by the employee to
resolve problems associated with alcohol and/or drug use.'' (49 CFR
section 40.293)
Incidentally, prior to the DOT's final rule published in 2000, 65
FR 79462 (December 19, 2000), establishing the current 49 CFR part 40,
the SAP had discretion to determine whether an employee needed
substance abuse assistance. The DOT removed this discretion in the
final rule, stating ``we believe that there are no circumstances in
which it is appropriate for a SAP to find that a violator of our
regulations is not in need of education and/or treatment.'' 65 FR at
79508.
When should reports of refusals and drug and alcohol test results be
sent to the FAA?
In the NPRM, we proposed standardizing the time period for
reporting drug test results and refusals to 2 days. EAA opposed
changing the notification for drug test results from 12 working days to
2 working days. Instead, EAA recommended a 7 working day notification
requirement.
We have decided to adopt the amendment as proposed because we are
not accelerating the schedule for drug test or refusal verification, we
are merely requiring an administrative change to report the results to
the FAA within 2 days for alcohol test results, drug test results, and
refusal verifications. These changes ensure violations are reported to
the FAA in a more timely manner. This standardization of 2 days will
make the reporting requirements clear and consistent for employers and
their service agents. The FAA notes that while we proposed to change
the refusal reporting requirement for drug testing to 2 days, we
inadvertently omitted the rule language for making a similar change to
the alcohol refusal reporting requirement. We have corrected this
omission.
How do driving under the influence (DUI) violations affect pilot
certificate holders?
EAA questioned how DOT agencies and state and local law authorities
would report such information to the FAA. EAA suggested new forms would
be needed, and the FAA failed to account for this cost. This
association also believed the proposed rule would significantly affect
pilot certificate holders who have received a DUI for drugs or alcohol.
In addition, EAA asked if pilots are allowed one DUI before their
medical certificate is revoked, saying that aviation medical examiners
(AME) currently forgive the first DUI. Also, EAA inquired whether a
pilot would be suspended for 0.04 or less BAC. EAA said it is not clear
whether a DUI or a positive test result not related to flying can
result in the loss of the airman's medical certificate.
This final rule only standardizes the reporting periods as
described earlier, and does not change the existing reporting
requirements for DUI or other drug or alcohol violations found by DOT
agencies, state, or local law authorities. Therefore, new forms are not
necessary.
Pilot certificate holders who receive a DUI already encounter
consequences under the existing FAA regulations. A pilot with one DUI
can be evaluated by the AME to determine if there is an alcohol abuse
problem. Similarly, the AME is required to defer issuance of a new
medical certificate to the Federal Air Surgeon if the airman has
refused a DOT alcohol test or has a DOT alcohol violation. As we
explained in the preamble to the NPRM, the FAA has taken medical
certificate action against pilots for one alcohol-related event.
Although test results below 0.04 are not required to be reported to the
FAA, it is possible, in certain circumstances, the pilot's medical
certificate will be suspended or revoked for an alcohol test result of
less than 0.04 BAC. However, under the FAA's regulations, an employer
must remove a pilot from the performance of safety-sensitive work if
the pilot has an alcohol test result between 0.02 and less than 0.04
BAC. The pilot cannot be returned to safety-sensitive work until he or
she has an alcohol test result below 0.02 BAC or until the pilot's next
scheduled duty period, but not less than 8 hours following the
administration of the test.
Yes, an individual can lose his or her medical certificate for a
DUI, DWI, test result, or refusal unrelated to flying. Losing a medical
certificate for conduct unrelated to flying is not a new consequence
resulting from this final rule.
How does an employer know when a medical certificate is valid?
EAA noted that it can be confusing for an employer to know if a
medical certificate is valid after an employee has had a drug or
alcohol violation. The association suggested specific language on this
point.
In response to EAA's comments, we modified part 121, appendix I,
section VII.C.2 to include clarifying language. We also modified part
121, appendix J, section V.C.4 to add the clarifying language and to
make it consistent with the corresponding section in appendix I. An
employer can refer to these sections for direction on medical
certificate validity.
Miscellaneous Comments
The FAA received numerous comments outside the scope of the
proposals. They included: applying
[[Page 35762]]
medical certification to mechanics and others performing safety-
sensitive functions; zero alcohol tolerance; conducting breath alcohol
testing immediately before each flight; reducing the breath alcohol
concentration standard from 0.04 to 0.02 BAC; increasing the BAC
standard above 0.04 BAC; increasing the timeframe of prohibition of
substance abuse in the medical certification standards to extend longer
than 2 years. We have not addressed them in this rulemaking.
Paperwork Reduction Act
The FAA described the information collection requirements
associated with reporting the results of drug and alcohol testing in
OMB control number 2120-0535. This NPRM would add the requirement to
report refusals to take return-to-duty and pre-employment tests. This
is an extremely small additional burden because these reports are
already generated and sent to the employer under 49 CFR part 40 and 14
CFR part 121, appendices I and J, and are accounted for in OMB control
number 2125-0529. Under the new requirement, employers would merely
send these already existing reports on to the FAA, resulting in a total
annual burden of fewer than 2 hours across the industry. Specifically,
we estimate the annual burden associated with this NPRM to be 1.75
hours to the private sector, costing $35.00. The annual burden to the
Federal Government would be 7 hours, costing $138.95. Because this
burden is extremely small, we will not change Paperwork Burden
Submission OMB control number 220-0535 at this time, but we will
include the extra 1.75 hours in the next renewal in 2008.
International Compatibility
In keeping with U.S. obligation under the Convention on
International Civil Aviation, it is FAA policy to comply with
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices (SARPs) to the maximum extent practicable. SARPs
do not address disqualification of an airman based on a refusal to take
a required drug or alcohol test.
Executive Order 12866 and DOT Regulatory Policies and Procedures
Executive Order 12866, Regulatory Planning and Review, directs the
FAA to assess both the costs and the benefits of a regulatory change.
We are not allowed to propose or adopt a regulation unless we make a
reasoned determination that the benefits of the intended regulation
justify the costs. Our assessment of this rulemaking indicates that its
economic impact is minimal. This action imposes minimal copying,
mailing, and faxing costs on small entities subject to this rule.
Because the costs and benefits of this action do not make it a
``significant regulatory action'' as defined in the Order, we have not
prepared a ``regulatory evaluation,'' which is the written cost/benefit
analysis ordinarily required for all rulemaking under the DOT
Regulatory Policies and Procedures. We do not need to do a full
evaluation where the economic impact of a rule is minimal.
Regulatory Evaluation, Regulatory Flexibility Analysis, International
Trade Impact Assessment, and Unfunded Mandate Assessment
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs that each Federal agency
shall propose or adopt a regulation only upon a reasoned determination
that the benefits of the intended regulation justify its costs. Second,
the Regulatory Flexibility Act of 1980 requires agencies to analyze the
economic impact of regulatory changes on small entities. Third, the
Trade Agreements Act (19 U.S.C. 2531-2533) prohibits agencies from
setting standards that create unnecessary obstacles to the foreign
commerce of the United States. In developing U.S. standards, this Trade
Act requires agencies to consider international standards and, where
appropriate, to be the basis of U.S. standards. Fourth, the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to
prepare a written assessment of the costs, benefits, and other effects
of proposed or final rules that include a Federal mandate likely to
result in the expenditure by State, local, or tribal governments, in
the aggregate, or by the private sector, of $100 million or more
annually (adjusted for inflation). This portion of the preamble
summarizes the FAA's analysis of the economic impacts of this final
rule.
The Department of Transportation Order DOT 2100.5 prescribes
policies and procedures for simplification, analysis, and review of
regulations. If the expected cost impact is so minimal that a proposal
does not warrant a full evaluation, this order permits a statement to
that effect. The basis for the minimal impact must be included in the
preamble, if a full regulatory evaluation of the cost and benefits is
not prepared. Such a determination has been made for this rule. The
reasoning for this determination follows.
This final rule amends the airman medical certification standards
to disqualifiy an airman based on an alcohol test result of 0.04 or
greater BAC or a refusal to take a required drug or alcohol test. This
rule enhances safety by ensuring that persons who engage in substance
abuse do not operate aircraft or perform contract air traffic control
tower operations until it is determined that these individuals can
operate safely. This rulemaking does not impose additional drug and
alcohol testing requirements. It only imposes reporting requirements on
the aviation industry and the FAA. This final rule will have a minimal
impact with positive net benefits, and a regulatory evaluation was not
prepared.
The FAA has, therefore, determined this rulemaking action is not a
``significant regulatory action'' as defined in section 3(f) of
Executive Order 12866, and is not ``significant'' as defined in DOT's
Regulatory Policies and Procedures. In addition, the FAA has determined
that this rulemaking action: (1) Will not have a significant economic
impact on a substantial number of small entities; (2) will not affect
international trade; and (3) will not impose an unfunded mandate on
state, local, or tribal governments, or on the private sector.
Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) establishes ``as a
principle of regulatory issuance that agencies shall endeavor,
consistent with the objective of the rule and of applicable statutes,
to fit regulatory and informational requirements to the scale of the
business, organizations, and governmental jurisdictions subject to
regulation.'' To achieve that principle, the RFA requires agencies
consider flexible regulatory proposals, to explain the rationale for
their actions, and to solicit comments. The RFA covers a wide-range of
small entities, including small businesses, not-for-profit
organizations and small governmental jurisdictions.
Agencies must perform a review to determine whether a proposed or
final rule will have a significant economic impact on a substantial
number of small entities. If the agency determines that it will, the
agency must prepare a regulatory flexibility analysis as described in
the RFA.
However, if an agency determines that a proposed or final rule is
not expected to have a significant economic impact on a substantial
number of small entities, section 605(b) of the RFA provides that the
head of the agency may so certify and a regulatory flexibility analysis
is not required. The certification must include a statement
[[Page 35763]]
providing the factual basis for this determination, and the reasoning
should be clear.
This action imposes minimal copying, mailing, and faxing costs on
small entities subject to this rule. Consequently, as the FAA
Administrator, I certify that the rulemaking action will not have a
significant economic impact on a substantial number of small entities.
International Trade Impact Assessment
The Trade Agreements Act of 1979 prohibits Federal agencies from
establishing any standards or engaging in related activities that
create unnecessary obstacles to the foreign commerce of the United
States. Legitimate domestic objectives, such as safety, are not
considered unnecessary obstacles. The statute also requires
consideration of international standards and, where appropriate, that
these international standards be the basis for U.S. standards. The FAA
has assessed the potential effect of this rulemaking action and has
determined that it only impacts domestic activities and will not have
any trade-sensitive activity.
Unfunded Mandate Assessment
The Unfunded Mandates Reform Act of 1995 (the Act) is intended,
among other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of the Act
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may result in an expenditure of $100 million or more (adjusted
annually for inflation) in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector. The FAA
currently uses an inflation-adjusted value of $120.7 million in lieu of
$100 million.
This final rule does not contain such a mandate. The requirements
of Title II do not apply.
Executive Order 13132, Federalism
The FAA has analyzed this proposed rule under the principles and
criteria of Executive Order 13132, Federalism. We have determined that
this action would not have a substantial direct effect on the States,
on the relationship between the national Government and the States, or
on the distribution of power and responsibilities among the various
levels of government, and therefore would not have federalism
implications.
Environmental Analysis
FAA Order 1050.1D defines FAA actions that may be categorically
excluded from preparation of a National Environmental Policy Act
environmental impact statement. In accordance with FAA Order 1050.1D,
appendix 4, paragraph 4(J) this NPRM qualifies for a categorical
exclusion.
List of Subjects
14 CFR Part 61
Aircraft, Airmen, Alcohol abuse, Aviation safety, Drug abuse,
Recreation and recreation areas, Reporting and recordkeeping
requirements, Security measures, Teachers.
14 CFR Part 63
Aircraft, Airmen, Alcohol abuse, Aviation safety, Drug abuse,
Navigation (air), Reporting and recordkeeping requirements, Security
measures.
14 CFR Part 65
Air traffic controllers, Aircraft, Airmen, Airports, Alcohol abuse,
Aviation safety, Drug abuse, Reporting and recordkeeping requirements,
Security measures.
14 CFR Part 67
Airmen, Authority delegation (Government agencies), Health,
Reporting and recordkeeping requirements.
14 CFR Part 91
Afghanistan, Agriculture, Air traffic control, Aircraft, Airmen,
Airports, Aviation safety, Canada, Cuba, Ethiopia, Freight, Mexico,
Noise control, Political candidates, Reporting and recordkeeping
requirements, Yugoslavia.
14 CFR Part 121
Air carriers, Aircraft, Airmen, Alcohol abuse, Aviation safety,
Charter flights, Drug abuse, Drug testing, Reporting and recordkeeping
requirements, Safety, Transportation.
14 CFR Part 135
Air taxis, Aircraft, Airmen, Alcohol abuse, Aviation safety, Drug
abuse, Drug testing, Reporting and recordkeeping requirements.
The Amendment
0
In consideration of the foregoing, the Federal Aviation Administration
amends Chapter I of Title 14 parts 61, 63, 65, 67, 91,121, and 135 of
the Code of Federal Regulations as follows:
PART 61--GENERAL
0
1. The authority citation for part 61 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709-
44711, 45102-45103, 45301-45302.
0
2. Revise Sec. 61.14, paragraph (a) to read as follows:
Sec. 61.14 Refusal to submit to a drug or alcohol test.
(a) This section applies to an individual who holds a certificate
under this part and is subject to the types of testing required under
appendix I to part 121 or appendix J to part 121 of this chapter.
* * * * *
PART 63--CERTIFICATION: FLIGHT CREWMEMBERS OTHER THAN PILOTS
0
3. The authority citation for part 63 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709-
44711, 45102-45103, 45301-45302.
0
4. Revise Sec. 63.12b, paragraph (a) to read as follows:
Sec. 63.12b Refusal to submit to a drug or alcohol test.
(a) This section applies to an individual who holds a certificate
under this part and is subject to the types of testing required under
appendix I to part 121 or appendix J to part 121 of this chapter.
* * * * *
PART 65--CERTIFICATION: AIRMEN OTHER THAN FLIGHT CREWMEMBERS
0
5. The authority citation for part 65 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709-
44711, 45102-45103, 45301-45302.
0
6. Revise Sec. 65.23, paragraph (a) to read as follows:
Sec. 65.23 Refusal to submit to a drug or alcohol test.
(a) General. This section applies to an individual who holds a
certificate under this part and is subject to the types of testing
required under appendix I to part 121 or appendix J to part 121 of this
chapter.
* * * * *
0
7. Revise Sec. 65.46a, paragraph (f) to read as follows:
Sec. 65.46a Misuse of alcohol.
* * * * *
(f) Refusal to submit to a required alcohol test. A covered
employee may not refuse to submit to any alcohol test required under
appendix J to part 121 of
[[Page 35764]]
this chapter. An employer may not permit an employee who refuses to
submit to such a test to perform or continue to perform safety-
sensitive functions.
PART 67--MEDICAL STANDARDS AND CERTIFICATION
0
8. The authority citation for part 67 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709-
44711, 45102-45103, 45301-45303.
0
9. Revise Sec. 67.107, paragraph (b)(2) to read as follows:
Sec. 67.107 Mental.
* * * * *
(b) * * *
(2) A verified positive drug test result, an alcohol test result of
0.04 or greater alcohol concentration, or a refusal to submit to a drug
or alcohol test required by the U.S. Department of Transportation or an
agency of the U.S. Department of Transportation; or
* * * * *
0
10. Revise Sec. 67.207, paragraph (b)(2) to read as follows:
Sec. 67.207 Mental.
* * * * *
(b) * * *
(2) A verified positive drug test result, an alcohol test result of
0.04 or greater alcohol concentration, or a refusal to submit to a drug
or alcohol test required by the U.S. Department of Transportation or an
agency of the U.S. Department of Transportation; or
* * * * *
0
11. Revise Sec. 67.307, paragraph (b)(2) to read as follows:
Sec. 67.307 Mental.
* * * * *
(b) * * *
(2) A verified positive drug test result, an alcohol test result of
0.04 or greater alcohol concentration, or a refusal to submit to a drug
or alcohol test required by the U.S. Department of Transportation or an
agency of the U.S. Department of Transportation; or
* * * * *
PART 91--GENERAL OPERATING AND FLIGHT RULES
0
12. The authority citation for part 91 continues to read as follows:
Authority: 49 U.S.C. 106(g), 1155, 40103, 40113, 40120, 44101,
44111, 44701, 44709, 44711, 44712, 44715, 44716, 44717, 44722,
46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-47531,
articles 12 and 29 of the Convention on International Civil Aviation
(61 stat. 1180).
0
13. Revise Sec. 91.17 paragraphs (a)(4), (c)(1) introductory text and
(c)(2) to read as follows:
Sec. 91.17 Alcohol or drugs.
(a) * * *
(4) While having an alcohol concentration of 0.04 or greater in a
blood or breath specimen. Alcohol concentration means grams of alcohol
per deciliter of blood or grams of alcohol per 210 liters of breath.
* * * * *
(c) * * *
(1) On request of a law enforcement officer, submit to a test to
indicate the alcohol concentration in the blood or breath, when--
* * * * *
(2) Whenever the FAA has a reasonable basis to believe that a
person may have violated paragraph (a)(1), (a)(2), or (a)(4) of this
section, on request of the FAA, that person must furnish to the FAA the
results, or authorize any clinic, hospital, or doctor, or other person
to release to the FAA, the results of each test taken within 4 hours
after acting or attempting to act as a crewmember that indicates an
alcohol concentration in the blood or breath specimen.
* * * * *
PART 121--OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL
OPERATIONS
0
14. The authority citation for part 121 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 40119, 41706, 44101, 44701-
44703, 44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-
44904, 44912, 45101-45105, 46105.
0
15. Revise Sec. 121.458, paragraph (f) to read as follows:
Sec. 121.458 Misuse of alcohol.
* * * * *
(f) Refusal to submit to a required alcohol test. A covered
employee must not refuse to submit to any alcohol test required under
appendix J to this part. A certificate holder must not permit an
employee who refuses to submit to such a test to perform or continue to
perform safety-sensitive functions.
Appendix I to Part 121--Drug Testing Program
0
16. Amend section II of Appendix I to part 121 by revising the
definition of ``refusal to submit'' as follows:
* * * * *
Sec. II. Definitions.
* * * * *
Refusal to submit means that an employee engages in conduct
including but not limited to that described in 49 CFR 40.191.
* * * * *
0
17. Amend section VI of Appendix I to part 121 by revising paragraph
D.1 as follows and removing and reserving paragraph D.2.
Sec. VI. Administrative and Other Matters.
* * * * *
D. Refusal to Submit to Testing.
1. Each employer must notify the FAA within 2 working days of
any employee who holds a certificate issued under part 61, part 63,
or part 65 of this chapter who has refused to submit to a drug test
required under this appendix. Notification must be sent to: Federal
Aviation Administration, Office of Aerospace Medicine, Drug
Abatement Division (AAM-800), 800 Independence Avenue, SW.,
Washington, DC 20591, or by fax to (202) 267-5200.
* * * * *
0
18. Amend section VII of Appendix I by revising paragraphs C.1, C.2,
C.3, C.4 and adding paragraph C.6 to read as follows:
VII. Medical Review Officer/Substance Abuse Professional, and
Employer Responsibilities.
* * * * *
C. Additional Medical Review Officer, Substance Abuse
Professional, and Employer Responsibilities Regarding 14 CFR part 67
Airman Medical Certificate Holders.
1. As part of verifying a confirmed positive test result or
refusal to submit to a test, the MRO must ask and the individual
must answer whether he or she holds an airman medical certificate
issued under 14 CFR part 67 or would be required to hold an airman
medical certificate to perform a safety-sensitive function for the
employer. If the individual answers in the affirmative to either
question, in addition to notifying the employer in accordance with
49 CFR part 40, the MRO must forward to the Federal Air Surgeon, at
the address listed in paragraph 5, the name of the individual, along
with identifying information and supporting documentation, within 2
working days after verifying a positive drug test result or refusal
to submit to a test.
2. During the SAP interview required for a verified positive
test result or a refusal to submit to a test, the SAP must ask and
the individual must answer whether he or she holds or would be
required to hold an airman medical certificate issued under 14 CFR
part 67 of this chapter to perform a safety-sensitive function for
the employer. If the individual answers in the affirmative, the
individual must obtain an airman medical certificate issued by
[[Page 35765]]
the Federal Air Surgeon dated after the verified positive drug test
result date or refusal to test date. After the individual obtains
this airman medical certificate, the SAP may recommend to the
employer that the individual may be returned to a safety-sensitive
position. The receipt of an airman medical certificate does not
alter any obligations otherwise required by 49 CFR part 40 or this
appendix.
3. An employer must forward to the Federal Air Surgeon within 2
working days of receipt, copies of all reports provided to the
employer by a SAP regarding the following:
(a) An individual who the MRO has reported to the Federal Air
Surgeon under section VII.C.1 of this appendix; or
(b) An individual who the employer has reported to the Federal
Air Surgeon under section VI.D of this appendix.
4. The employer must not permit an employee who is required to
hold an airman medical certificate under 14 CFR part 67 to perform a
safety-sensitive duty to resume that duty until the employee has:
(a) Been issued an airman medical certificate from the Federal
Air Surgeon after the date of the verified positive drug test result
or refusal to test; and
(b) Met the return to duty requirements in accordance with 49
CFR part 40.
* * * * *
6. MROs, SAPs, and employers who send reports to the Federal Air
Surgeon must keep a copy of each report for 5 years.
* * * * *
Appendix J to Part 121--Alcohol Misuse Prevention Program
0
19. Amend section I.D. of Appendix J to part 121 by revising the
definition of ``refusal to submit'' as follows:
I. GENERAL.
* * * * *
D. Definitions. * * *
* * * * *
Refusal to submit means that a covered employee has engaged in
conduct including but not limited to that described in 49 CFR
40.261, or has failed to remain readily available for post-accident
testing as required by this appendix.
* * * * *
0
20. Amend section IV of Appendix J to part 121 by revising paragraph
A.2(a)(2) to read as follows:
IV. HANDLING OF TEST RESULTS, RECORD RETENTION, AND CONFIDENTIALITY
* * * * *
2. Period of Retention.
(a) * * *
* * * * *
(2) Records of notifications to the Federal Air Surgeon of
refusals to submit to testing and violations of the alcohol misuse
prohibitions in this chapter by covered employees who hold medical
certificates issued under part 67 of this chapter.
* * * * *
0
21. Amend section V of Appendix J to Part 121 by revising paragraph
(C)(4) to read as follows:
C. * * *
* * * * *
4. No covered employee who is required to hold an airman medical
certificate in order to perform a safety-sensitive duty may perform
that duty following a violation of this appendix until the covered
employee obtains an airman medical certificate issued by the Federal
Air Surgeon dated after the alcohol test result or refusal to test
date. After the covered employee obtains this airman medical
certificate, the SAP may recommend to the employer that the covered
employee may be returned to a safety-sensitive position. The receipt
of an airman medical certificate does not alter any obligations
otherwise required by 49 CFR part 40 or this appendix.
* * * * *
0
22. Amend section V of Appendix J to Part 121 by revising paragraph
(D)(1) to read as follows:
D. Notice of Refusals
1. Except as provided in subparagraph 2 of this paragraph D,
each covered employer must notify the FAA within 2 working days of
any employee who holds a certificate issued under part 61, part 63,
or part 65 of this chapter who has refused to submit to an alcohol
test required under this appendix. Notification must be sent to:
Federal Aviation Administration, Office of Aerospace Medicine, Drug
Abatement Division (AAM-800), 800 Independence Avenue, SW.,
Washington, DC 20591, or by fax to (202) 267-5200.
* * * * *
PART 135--OPERATING REQUIREMENTS: COMMUTER AND ON-DEMAND OPERATIONS
AND RULES GOVERNING PERSONS ON BOARD SUCH AIRCRAFT
0
23. The authority citation for part 135 is amended to read as follows:
Authority: 49 U.S.C. 106(g), 41706, 40113, 44701-44702, 44705,
44709, 44711-44713, 44715-44717, 44722, 45101-45105.
0
24. Revise Sec. 135.253, paragraph (f) to read as follows:
Sec. 135.253 Misuse of alcohol.
* * * * *
(f) Refusal to submit to a required alcohol test. A covered
employee may not refuse to submit to any alcohol test required under
appendix J to part 121 of this chapter.
An operator or certificate holder may not permit an employee who
refuses to submit to such a test to perform or continue to perform
safety-sensitive functions.
Issued in Washington, DC, on June 15, 2006.
Marion C. Blakey,
Administrator.
[FR Doc. E6-9814 Filed 6-20-06; 8:45 am]
BILLING CODE 4910-13-P
