[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]



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 

AGENCY: Federal Aviation Administration, DOT.

ACTION: Notice of proposed rulemaking (NPRM).


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.


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.


    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. 
    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 

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 
    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 


    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 

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.


    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 

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.


    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.


    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 
    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 

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.


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