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