[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: 94-2035]
[[Page Unknown]]
[Federal Register: February 15, 1994]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 121 and 129
[Docket No. 27066; Notice No. 94-2]
RIN 2120-AE79
Antidrug Program and Alcohol Misuse Prevention Program for
Employees of Foreign Air Carriers Engaged in Specified Aviation
Activities
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: The Omnibus Transportation Employee Testing Act of 1991 (the
Act) directs the Federal Aviation Administration (FAA) Administrator to
prescribe regulations that require foreign air carriers to establish
drug and alcohol testing programs for employees performing safety-
sensitive aviation functions. The Act also specifies that the
Administrator shall only prescribe regulations that are consistent with
the international obligations of the United States and take into
consideration any applicable laws and regulations of foreign countries.
This notice proposes to require foreign air carriers to establish
drug and alcohol testing programs for their employees performing safety
sensitive aviation functions within the territory of the United States
unless multilateral action is taken that supports an aviation
environment free of substance abuse.
DATES: Comments must be received on or before May 16, 1994. Additional
notice of rulemaking may be given based on the comments received.
ADDRESSES: Comments on this notice should be mailed in triplicate, to:
Federal Aviation Administration, Office of the Chief Counsel, Attn:
Rules Docket (AGC-10), Docket No. 27066, 800 Independence Avenue, SW.,
Washington, DC 20591. Comments that are delivered to this address must
be marked ``Docket No. 27066.'' Comments may be examined in Room 915G
between 8:30 a.m. and 5 p.m. on weekdays, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Office of Aviation Medicine, Drug
Abatement Division (AAM-800), Federal Aviation Administration, 400 7th
Street, SW., Washington, DC 20590; telephone (202) 366-6710.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of a
proposed rule by submitting such written data, views, suggestions, or
arguments as they may desire. Communications should identify the
regulatory docket or notice number and be submitted in triplicate to
the address above. All communications received on or before the closing
date for comments will be considered by the Administrator before
rulemaking action is taken. Persons wishing the FAA to acknowledge
receipt of their comments must submit with those comments a self-
addressed stamped postcard on which the following statement is made:
``Comments to Docket No. 27066.'' The postcard will be dated and time
stamped and returned to the commenter. All comments submitted will be
available for review in the Rules Docket, both before and after the
comment closing date. A report summarizing each substantive public
contact with the FAA personnel concerned with this rulemaking will also
be filed in the docket. Any comments provided to the docket in the
preliminary portion of this rulemaking will be considered prior to any
final action and need not be resubmitted.
Availability of NPRM
Any person may obtain a copy of this NPRM by submitting a request
to the Federal Aviation Administration, Office of Public Affairs, Attn:
Public Inquiry Center (APA-230), 800 Independence Avenue, SW.,
Washington, DC 20591, or by calling (202) 267-3484. The request must
include the notice number of this NPRM.
Persons interested in being placed on a mailing list for future
rulemaking actions should request a copy of Advisory Circular 11-2A,
Notice of Proposed Rulemaking Distribution System, which describes the
application procedures.
Current Laws & Regulations
The Omnibus Transportation Employee Testing Act of 1991 (Pub. L.
102-143, Title V) was enacted on October 28, 1991. Among other things,
the Act adds a new section 614 to the Federal Aviation Act of 1958
(FAAct). Section 614(a)(1) of the FAAct (49 U.S.C. 1434(a)(1)) directs
the Administrator to prescribe regulations requiring the testing of air
carrier and foreign air carrier employees for the use of alcohol and
controlled substances. Section 614(e)(3) of the FAAct (49 U.S.C.
1434(e)(3)) further directs that ``the Administrator shall only
establish requirements applicable to foreign air carriers that are
consistent with the international obligations of the United States, and
the Administrator shall take into consideration any applicable laws and
regulations of foreign countries.'' The requirement to publish
regulations applicable to foreign air carriers is consistent with other
requirements of the Act to publish similar regulations for other modes
of transportation.
Discussion
Pursuant to the requirements of the Act, this notice proposes to
require foreign air carriers to establish antidrug and alcohol misuse
programs like those required of U.S. carriers by January 1, 1996. The
FAA is optimistic that recent efforts at the International Civil
Aviation Organization (ICAO) will result in satisfactory multilateral
action to prevent substance abuse in the international workplace, which
consistent with the Act, could make FAA rulemaking unnecessary.
The FAA has general statutory authority to regulate safety in civil
aviation under the FAAct. As recognized in section 1108 of the FAAct,
the United States of America has complete and exclusive national
sovereignty in the airspace of the United States (49 U.S.C. app.
1508(a)).
Pursuant to the Act, the FAA has the option of not imposing testing
requirements on foreign air carriers if the FAA determines, based upon
future developments within ICAO, that an FAA testing rule is not
required. If no U.S. rule is to be adopted or the instant proposal
warrants modification pursuant to ICAO action, the FAA will publish
notice of such decision. Further analysis of the issue in light of any
comments received in response to this notice also could assist the FAA
in making the determination.
The FAA is encouraged by recent developments at ICAO, and has
determined that an international agreement would be the preferred
alternative to unilateral actions by individual ICAO member States. The
FAA remains committed to the multilateral process underway at ICAO and
will not require testing if a satisfactory alternative is reached
through bilateral or multilateral action. In the event that such is not
forthcoming, the FAA is now seeking comments on the implementation of a
direct application of U.S. drug testing requirements to foreign air
carriers.
Discussion of Comments on ANPRM
The FAA recognized that foreign countries and foreign air carriers
would have many concerns regarding the possible application of testing
regulations to foreign air carrier employees. We therefore published an
advance notice of proposed rulemaking (ANPRM) on this same subject in
which we asked a number of questions about the legal, practical, and
cultural issues associated with testing. The comment period for the
NPRM, originally set for 60 days, was extended an additional 45 days to
allow for translation of documents and coordination with management or
government officials outside the United States. Many useful and cogent
comments were received in response to the ANPRM and will be considered
by the FAA prior to any final rulemaking. It is not necessary for
commenters to this NPRM to resubmit those comments.
The FAA received 65 comments on the ANPRM, most of which were
provided by foreign governments or foreign air carriers. Nineteen of
the comments were procedural, requesting an extension of the comment
period. Three comments were received that supported the concept of
unilateral imposition of testing requirements on foreign air carriers.
Two of these were from trade associations for the U.S. air carriers
(Regional Airline Association (RAA) and Air Transport Association
(ATA)), and one was from a U.S. labor organization (Airline Dispatchers
Federation (ADF)). Both RAA and ATA stated that foreign air carriers
would have a competitive advantage if they did not have to implement
testing programs that are required of U.S. air carriers. ATA and ADF
stated that passenger safety required holding safety-sensitive
employees of foreign carriers to the same standard as similar employees
of U.S. air carriers.
The remaining comments were from foreign governments, foreign trade
and labor associations, and foreign air carriers. These commenters
objected in whole or in part to the possible unilateral imposition of
testing requirements on foreign air carriers in the United States.
International Law
Most of the foreign air carriers and foreign governments commenting
on the ANPRM asserted that any regulation that unilaterally required
foreign air carriers to implement substance abuse testing programs
would violate international law, exceeding the generally recognized
limits to extraterritorial jurisdiction. A number of commenters also
stated that testing requirements would conflict with foreign laws or
regulations, primarily those affecting labor relations and privacy
rights.
The majority of these commenters also asserted that unilateral
action by the United States to impose a testing requirement would
impermissibly implicate the qualifications of airmen, in contravention
of the Chicago Convention. Airmen certification or licensure is within
the jurisdiction of the country of aircraft registry (Chicago
Convention art. 32), and each member State must recognize certificates
and licenses issued by other States, as long as minimum standards are
met (id., art. 33). The commenters assert that these provisions
prohibit the United States from imposing additional certification
requirements on otherwise qualified and certificated crewmembers.
Finally, a few commenters, among them the Embassy of Belgium,
stated that under the applicable bilateral agreement, the United States
would have to request consultations prior to imposing any new safety
requirement.
Discussion
The testing program discussed in this notice is well within the
FAA's authority to regulate the safe operation of aircraft within the
territory of the United States (Chicago Convention art. 11). The FAA
desires further comments, if any, on this point and further seeks
comments addressing any legal problems with regards to the proposed
testing.
Financial and Operational Concerns
Many of the commenters noted that it was difficult to estimate the
likely cost of implementing programs since the ANPRM did not propose
any specific requirements. They also noted, however, that it was likely
that imposition of drug and alcohol testing requirements could have a
disproportionate financial impact on foreign carriers. British Airways
(BA), for example, stated that it schedules its crews on flights from
London to the U.S. West Coast under very tight time and duty
constraints and does not generally have replacement crew available. For
example, if an individual crewmember were selected for testing, the
additional time required for the testing could put the individual
beyond the allowable duty time. BA states that the flight would then
have to be delayed, resulting in significant costs to BA.
Other commenters noted that imposing any regulations under which
foreign air carrier employees or their urine samples would have to be
transported to the United States for testing would pose significant
increased costs on foreign air carriers.
FAA Response
In evaluating the international implications of its substance abuse
programs for U.S. carriers, the FAA has become aware of the
difficulties associated with evaluating testing programs established in
foreign countries and with the FAA's compliance monitoring activities
outside the U.S. The regulatory evaluation does examine the system
delay costs for foreign air carriers although it does not presume to
determine how an individual air carrier would conduct testing or
calculate the costs for an individual program.
International Civil Aviation Organization (ICAO)
A significant number of commenters noted that the ICAO was
established under the Chicago Convention specifically to address issues
of general applicability to international civil aviation. Many of these
commenters supported proceeding through the ICAO process to reach a
multilateral consensus on ways to achieve the ultimate goal of civil
aviation workplaces free of substance abuse.
FAA RESPONSE
As noted in the ANPRM, the Act directs the Secretaries of State and
Transportation to call on the member countries of the ICAO to
strengthen and enforce existing standards to prohibit the use, in
violation of law or Federal regulation, of alcohol or a controlled
substance by crew members in international civil aviation (Section
614(e)(3) of the FAAct; 49 U.S.C. app. 1434(e)(3)).
The FAA is aware that the problem of substance abuse may be
different in the United States than in other countries. Some countries,
for example, may have little or no problem with illegal drug use but a
significant problem with workplace alcohol misuse. Further, other
countries may have difficulty implementing U.S. testing and laboratory
standards. It is for that reason that we prefer a multilateral solution
through ICAO that would enable each country to tailor its substance
abuse prevention efforts to its particular needs.
On September 30, 1992, a resolution offered by the United States,
which was co-sponsored by a number of other countries, was introduced
at the 29th General Assembly of ICAO in furtherance of this legislative
directive (ICAO Document A29-WP/67; EX/17; 3/9/92). The resolution was
approved by the Assembly and states that the Assembly:
1. Declares its strong support for making and maintaining civil
aviation workplaces free of substance abuse and encourages
cooperative efforts throughout the international civil aviation
community to educate employees on the dangers of substance abuse,
and to take steps, when deemed necessary, to detect and deter such
use, and through such efforts, to ensure that substance abuse never
becomes prevalent or tolerated within civil aviation;
2. Urges the Council to accord a high degree of priority . . .
to expediting the development and publication of guidance material
containing measures which may be implemented by Contracting States .
. . ;
3. Requests the Council to continue its efforts to monitor:
(a) the existence and growth of the threat to the safety of
international civil aviation posed by substance abuse; and
(b) efforts by Contracting States to implement preventive
measures; and
4. Requests the Council to present a report on the
implementation of this Resolution to the next ordinary session of
the Assembly.
The member States of ICAO unanimously adopted this resolution,
which indicates that substance abuse is recognized as a threat to
international civil aviation safety. Since the adoption of the Assembly
resolution, ICAO has made substantial progress in developing the
mandated guidance material. On December 14, 1993, the ICAO group
charged with developing the material adopted an outline including
sections on education, treatment and rehabilitation, and testing. The
group expects its work to be completed, and the guidance material
published, by the end of 1994.
The FAA commends ICAO for its progress thus far and reiterates the
United States commitment to resolve the problem of drug and alcohol
misuse by transportation workers through this multilateral process.
The FAA remains optimistic that an international solution will be
reached. However, to protect the public safety in the event a
multilateral solution is not reached through ICAO, the FAA is
continuing to develop an alternative testing requirement; the FAA must
ensure that it has in place regulations to address the threat posed
today by substance abuse in the event that ICAO's efforts do not come
to fruition in a timely fashion or are otherwise inadequate.
Discussion of the Proposed Rule
The FAA proposes to require foreign air carriers to establish
antidrug and alcohol misuse prevention programs by January 1, 1996.
Testing would be conducted using the procedures established by the
Office of the Secretary of Transportation in 49 CFR part 40. Additional
requirements or more specific guidance on implementation issues would
be published as needed by the FAA. However, the FAA will not require
foreign air carriers to establish antidrug and alcohol misuse programs
if a multilateral action is taken by ICAO that supports an aviation
environment free of substance abuse.
The proposal reflects the FAA's use of substance abuse testing as
the primary tool for detecting and deterring substance abuse by safety-
sensitive aviation employees, especially illegal drug use. It is a
prevention/identification methodology that could be applied under
stringent regulatory conditions throughout the international aviation
community, especially in the context of suspected substance abuse. The
FAA recognizes that testing does not address all of the complex issues
raised by substance abuse and that prevention/identification efforts
targeting workplace substance abuse would serve to increase aviation
safety. The FAA prefers a multilateral solution, and although testing
is being proposed, the FAA may defer the compliance date or reconsider
the necessity of the rule if appropriate international action is taken.
The FAA would publish a notice accordingly.
The FAA recognizes that imposing testing requirements on foreign
air carriers could raise legal and technical implementation problems
that could hinder achieving the ultimate goal of an international
aviation environment free of substance abuse. The FAA invites comments
on these issues. The FAA would prefer not to require testing if
multilateral action or a series of bilateral agreements can be
obtained.
Paperwork Reduction Act Approval
The proposal would require foreign air carriers operating within
the territory of the United States to maintain records regarding drug
and alcohol testing conducted by the foreign air carrier and to submit
such records to the FAA or to provide access to such records to the
Administrator upon request.
In accordance with the Paperwork Reduction Act of 1980 (Pub. L. 96-
511), if recordkeeping and reporting requirements are included in the
final rule, they will be submitted to the Office of Management and
Budget (OMB) for approval after supplemental notice is given in the
Federal Register.
Economic Summary
This Notice of Proposed Rulemaking (NPRM) serves to fulfill part of
the requirements of the FAA-related provisions of the Omnibus
Transportation Employee Testing Act of 1991 (the Act), which was
enacted October 28, 1991. Congress has imposed a statutory obligation
on the FAA Administrator to prescribe regulations that, among other
things, establish an alcohol misuse testing program for air carrier
employees who perform safety-sensitive duties. The Act also directs the
FAA Administrator to prescribe regulations that require foreign air
carriers to establish drug and alcohol misuse testing programs for
employees performing safety-sensitive aviation functions. Such
regulations must be consistent with the international obligations of
the United States and take into consideration any applicable laws and
regulations of foreign air carriers.
The FAA proposes to require foreign air carriers to establish anti-
drug and alcohol misuse prevention programs by January 1, 1996, that
are consistent with the international obligations of the United States.
However, there would be no requirements if multilateral efforts to
ensure an aviation environment free of substance abuse are reached or
actions towards this end make an FAA testing rule unnecessary.
The proposed rule would apply the existing anti-drug program and
the new alcohol misuse prevention program to all part 129 air carriers.
The anti-drug rule for domestic air carriers was published in 1988 and
has been in effect since 1990. The alcohol misuse program for domestic
air carriers will take effect in 1995. This proposed rule would require
part 129 air carriers to begin implementing both such programs in
January 1996.
Costs
The FAA estimated the number of part 129 employees subject to both
drug and alcohol testing. These employees include all part 129 pilots,
copilots, instructors, engineers, and navigators, part 129 flight
attendants, and mechanics and repairmen who are employed by part 129
air carriers.
The FAA assumes that foreign air carriers would set up their anti-
drug and alcohol misuse programs similar to those of domestic air
carriers. Hence, this analysis applies the assumptions described and
used in the anti-drug and alcohol misuse prevention regulatory
evaluations for domestic air carriers to foreign air carriers.
The applicable costs for the program include the program
development costs, the Management Information System (M.I.S.) annual
reporting costs, the costs for the individual type of tests, the
setting up of an Employee Assistance Program (EAP) (applicable only for
the anti-drug program), and system delay costs. The ten year discounted
costs for the anti-drug and alcohol misuse preventions programs range
from $17.8 million to $24.5 million.
Benefits
The FAA's objective in proposing requiring mandatory anti-drug and
alcohol misuse programs is to foster an environment free of drug use
and alcohol misuse for personnel engaged in critical aviation safety
occupations. The public expects, and is entitled to, an aviation
environment free of substance abuse and misuse.
The FAA has determined that major benefits would accrue from these
proposals. The first would be the prevention of potential injuries and
fatalities and property losses resulting from accidents attributed to
individuals whose judgement or motor skills may have been impaired by
the presence of drugs or alcohol. The second would be the potential
reduction in absenteeism, lost worker productivity, medical costs, and
improved general safety in the workplace by the deterrence of alcohol
misuse.
At this time, neither drug use nor alcohol misuse has been cited
officially as a causative factor of any part 129 commercial aircraft
accident. The absence of accidents, however, cannot be the baseline by
which to measure the existence of a drug or alcohol problem in the
aviation industry. No statistical database is available from which to
estimate how many accidents were the consequence of impairment by drugs
or alcohol of a pilot or any other safety-sensitive employee.
The FAA examined the seating capacity, average passenger load, and
average replacement cost of a representative sample of both narrow-body
and wide-body airplanes, in addition to the cost of the National
Transportation Safety Board (NTSB) investigations. In calculating
benefits, the FAA also evaluated the increased productivity from
employees who are deterred from alcohol misuse. The total quantifiable
discounted benefits that would result from promulgation of this
proposed rule amount to $87.4 million discounted over ten years.
Cost/Benefit Analysis
In the Act, Congress imposed a statutory obligation on the FAA to
prescribe regulations that, among other things, establish anti-drug and
alcohol misuse testing programs for employees of part 129 air carriers
who perform safety-sensitive duties. The FAA has evaluated the cost of
setting up and administering these substance abuse and misuse programs,
and found that the ten-year discounted costs range from $17.8 million
to $24.5 million. This is less than the ten-year discounted benefits of
$87.4 million. Accordingly, the FAA finds these programs to be cost
beneficial.
Initial Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) was enacted by
Congress to ensure that small U.S. entities are not unnecessarily
burdened by government regulations. The RFA requires agencies to review
rules that may have a ``significant economic impact on a substantial
number of small entities.'' Because this proposed rule would only
affect foreign carriers, the RFA is not applicable.
International Trade Impact Statement
In accordance with the Office of Management and Budget memorandum
dated March 1983, federal agencies engaged in rulemaking activities are
required to assess the effects of regulatory change on international
trade. This proposed rule, if adopted, would place the same regulatory
requirements on foreign air carriers that currently exist for U.S. air
carriers (anti-drug abuse program) or are proposed for U.S. air
carriers (alcohol misuse program). It is not expected that the proposed
rule would have an adverse effect on trade opportunities for either
U.S. firms doing business overseas or foreign firms doing business in
the United States. While there would be increased costs to foreign
carriers as a consequence of this proposed rule, these costs will be
offset by the benefits and an increase in public confidence.
Federalism Implications
Any rule arising from this NPRM will not have substantial direct
effects on the States, on the relationship between the national
government and the States, on the distribution of power and
responsibilities among various levels of government. Therefore, in
accordance with Executive Order 12612, the FAA has determined that this
does not have sufficient federalism implications to warrant preparation
of a Federalism Assessment.
Significance
This notice of proposed rulemaking does not constitute a
``significant regulatory action'' under Executive Order 12866. It does
involve issues of substantial interest to the public, however, and the
FAA has therefore determined that the NPRM is significant under the
Regulatory Policies and Procedures of the Department of Transportation
(44 FR 11034; February 2, 1979).
Issued in Washington, DC, on January 25, 1994.
Federico Pena,
Secretary of Transportation.
David R. Hinson,
Administrator.
[FR Doc. 94-2035 Filed 2-3-94; 1:00 pm]
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