[Federal Register Volume 66, Number 223 (Monday, November 19, 2001)]
[Rules and Regulations]
[Pages 57865-57867]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-28868]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 121
[Docket No. FAA-2000-8431; Amendment No. 121-287]
RIN 2120-AH15
Antidrug and Alcohol Misuse Prevention Programs for Personnel
Engaged in Specified Aviation Activities
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule; technical amendment.
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SUMMARY: The FAA is making minor technical amendments to its drug and
alcohol regulations final rule, which was effective August 1, 2001.
Since publication of the final rule, we have become aware of minor
corrections that need to be made to avoid confusion. The effect of this
technical amendment will be to correct the rule language to reflect the
intent of the final rule.
EFFECTIVE DATE: November 19, 2001.
FOR FURTHER INFORMATION CONTACT: Diane J. Wood, Manager, AAM-800, Drug
Abatement Division, Office of Aerospace Medicine, Federal Aviation
Administration, 800 Independence Ave., SW., Washington, DC 20591,
telephone number (202) 267-8442.
SUPPLEMENTARY INFORMATION:
Availability of Rulemaking Documents
You can get an electronic copy using the Internet by taking the
following steps:
(1) Go to the search function of the Department of Transportation's
electronic Docket Management System (DMS) Web page (http://dms.dot.gov/search).
(2) On the search page type in the last four digits of the Docket
number shown at the beginning of this notice. Click on ``search.''
(3) On the next page, which contains the Docket summary information
for the Docket you selected, click on the document number for the item
you wish to view.
You can also get an electronic copy using the Internet through the
Office of Rulemaking's Web page at http://www.faa.gov/avr/armhome.htm
or the Federal Register's Web page at http://www.access.gpo.gov/su_docs/aces/aces140.html.
You can also get a copy by submitting a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Make
sure to identify the amendment number or docket number of this
rulemaking.
Background
On April 29, 1996, the Department of Transportation (DOT) published
an advance notice of proposed rulemaking (ANPRM) (61 FR 18713) asking
for suggestions to change 49 CFR part 40, Procedures for Transportation
Workplace Drug and Alcohol Testing Programs. Subsequently, on December
9, 1999, the DOT published a notice of proposed rulemaking (NPRM) (64
FR 69076) proposing a comprehensive revision to 49 CFR part 40, and the
DOT published its final rule on December 29, 2000 (64 FR 79462). As a
consequence of the DOT's final rule, on April 30, 2001, the FAA
published an NPRM (66 FR 21494) proposing to revise its drug and
alcohol regulations to integrate, as appropriate, the new DOT
procedures and to be consistent with changes made to 14 CFR part 67. On
August 9, 2001, we published a final rule (66 FR 41959) consistent with
the new DOT procedures and the current 14 CFR part 67.
Since publication of our final rule, we have become aware of minor
corrections that need to be made to avoid confusion. Unless these rule
sections are revised, the FAA regulations will not be technically
accurate.
In our final rule, we inadvertently retained language allowing, but
not requiring, employers to follow certain recommendations for follow-
up testing. Sections 40.297 and 40.309 of the DOT final rule require
the employer to carry out the Substance Abuse Professional's (SAP)
follow-up testing requirements. Therefore, the FAA is modifying 14 CFR
part 121, appendix I, section V.G.3., to require the employer to direct
the employee to have follow-up testing for alcohol, in addition to
drugs, if the SAP determines that alcohol testing is necessary for the
particular employee. Similarly, the FAA is modifying 14 CFR part 121,
appendix J, section III.F.3. to require the employer to direct the
employee to have follow-up testing for drugs, in addition to alcohol,
if the SAP determines that drug testing is necessary for the particular
employee. With the correction to these sections, the FAA requirements
for following SAP recommendations are now consistent with the DOT
requirements.
In addition, the FAA found an inadvertent omission regarding pre-
employment alcohol testing. In our final rule, we adopted language that
all the DOT modal administrations proposed. Our adoption provision
inadvertently omitted previous language in 14 CFR part 121, appendix J,
section III.A. that stated: ``If a pre-employment test result under
this paragraph indicates an alcohol concentration of 0.02 or greater
but less than 0.04, the provisions of paragraph F of section V of this
appendix apply.'' If the language is left as it appears in the final
rule, employers might erroneously believe that persons with alcohol
concentrations of between 0.02 and 0.04 on a pre-employment test could
be put to work immediately. Therefore, we are restoring the missing
language to 14 CFR part 121, appendix J, section III.A.
Finally, after publication of the final rule we became aware that
some cross-references had become incorrect because of changes made in
the final rule. Therefore, we are correcting these cross-references.
Agency Findings
The FAA is making minor technical amendments to its drug and
alcohol regulations final rule, which was effective August 1, 2001, to
correct minor omissions in the rule language. The FAA has analyzed this
final rule under the principles and criteria of Executive Order 13132,
Federalism. We determined that this action will not have a substantial
direct effect on the States, or the relationship between the national
Government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, we
determined that this final rule does not have federalism implications.
The FAA has determined that this action does not warrant
preparation of a regulatory evaluation since the anticipated impact is
minimal. For the reasons discussed in the preamble, I certify that this
regulation (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under
Department of Transportation (DOT) Regulatory Policies and Procedures;
(3) will not have a significant economic impact on a substantial number
of small entities; (4) will not impose barriers to international trade;
and (5) does not impose an unfunded mandate on state, local, or tribal
governments, or on the private sector.
In addition, this rule imposes no information collection
requirements for which Paperwork Reduction Act approval is needed.
[[Page 57866]]
Good Cause for Immediate Adoption
Sections 553(b)(3)(B) and 553(d)(3) of the Administrative Procedure
Act (APA) (5 U.S.C. Sections 553(b)(3)(B) and 553(d)(3)) authorize
agencies to dispense with certain notice procedures for rules when they
find ``good cause'' to do so. Under section 553(b)(3)(B), the
requirements of notice and opportunity for comment do not apply when
the agency, for good cause, finds that those procedures are
``impracticable, unnecessary, or contrary to the public interest.''
Section 553(d)(3) allows an agency, upon finding good cause, to make a
rule effective immediately, thereby avoiding the 30-day delayed
effective date requirement in section 553.
The FAA finds that notice and public comment to this technical
amendment are unnecessary and contrary to the public interest. The
amendments made in this final rule are corrective and clarifying
changes to an existing rule that went through public notice and
comment. The corrections in this technical amendment, in and of
themselves, do not have a substantial impact upon regulated employers
because they merely conform the final rule published August 9, 2001, to
current DOT regulations. The amendments do not make significant,
substantive changes to 14 CFR part 121, appendices I and J, and we
would not anticipate the receipt of adverse comments on them.
Furthermore, if the changes are stayed awaiting public notice and
comment, regulated persons are likely to become confused about the
conflicts between the FAA and DOT regulations on the issues addressed
in the amendments. Therefore, the FAA finds that notice and comment are
unnecessary and good cause exists for making these technical amendments
effective immediately.
It is essential that these technical amendments take effect upon
publication of this final rule. Delaying these amendments with a later
effective date would result in confusion on the part of the regulated
public. These technical amendments are merely intended to correctly
implement the August 9 final rule. Therefore, the FAA finds good cause
to make the changes effective upon publication in the Federal Register.
List of Subjects in 14 CFR Part 121
Air carriers, Aircraft, Aircraft pilots, Airmen, Alcohol abuse,
Aviation safety, Charter flights, Drug abuse, Drug testing, Safety,
Transportation.
The Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR Part 121, as follows:
PART 121--OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL
OPERATIONS
1. The authority citation for part 121 continues to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 40119, 41706, 44101, 44701-
44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-
44904, 44912, 45101-45105, 46105.
2. Amend appendix I to part 121 as follows:
A. In section V., revise paragraph G.3.;
B. In section VII, revise paragraph C.1.
The revisions read as follows:
Appendix I to Part 121--Drug Testing Program
* * * * *
V. Types of Drug Testing Required * * *
* * * * *
G. Follow-up Testing. * * *
3. The employer must direct the employee to undergo testing for
alcohol in accordance with appendix J of this part, in addition to
drugs, if the Substance Abuse Professional 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.
VII. Medical Review Officer, Substance Abuse Professional, and Employer
Responsibilities * * *
* * * * *
C. Additional Medical Review Officer, Substance Abuse Professional,
and Employer Responsibilities Regarding 14 CFR part 67 Airman
Medical Certificate Holders
1. As part of verifying a confirmed positive test result, the
MRO shall inquire, and the individual shall disclose, whether the
individual is or would be required to hold a medical certificate
issued under 14 CFR part 67 to perform a safety-sensitive function
for the employer. If the individual answers in the negative, the MRO
shall then inquire, and the individual shall disclose whether the
individual currently holds a medical certificate issued under 14 CFR
part 67. If the individual answers in the affirmative to either
question, in addition to notifying the employer in accordance with
49 CFR part 40, the MRO must forward to the Federal Air Surgeon, at
the address listed in paragraph 5, the name of the individual, along
with identifying information and supporting documentation, within 12
working days after verifying a positive drug test result.
* * * * *
3. Amend appendix J to part 121 as follows:
A. In section III, revise paragraphs A.5. and F.3;
B. In section IV, revise paragraphs B.6.(g) and B.7.(d)
C. In section V., revise paragraphs A.1., C.2., and E.
D. In section VI, revise paragraph A.2.(i)
The revisions read as follows:
Appendix J to Part 121--Alcohol Misuse Prevention Program
III. Tests Required
A. Pre-employment testing
* * * * *
5. You must not allow a covered employee to begin performing
safety-sensitive functions unless the result of the employee's test
indicates an alcohol concentration of less than 0.04. If a pre-
employment test result under this paragraph indicates an alcohol
concentration of 0.02 or greater but less than 0.04, the provisions
of paragraph F. of section V. of this appendix apply.
* * * * *
F. Follow-up Testing. * * *
3. The employer must direct the employee to undergo testing for
drugs in accordance with appendix I of this part, in addition to
alcohol, if the SAP determines that drug testing is necessary for
the particular employee. Any such drug testing shall be conducted in
accordance with the provisions of 49 CFR part 40.
* * * * *
IV. HANDLING OF TEST RESULTS, RECORD RETENTION, AND CONFIDENTIALITY
* * * * *
B. Reporting of Results in a Management Information System
* * * * *
6. * * *
* * * * *
(g) Number of covered employees with a confirmation alcohol test
indicating an alcohol concentration of 0.04 or greater who were
returned to duty in covered positions (having complied with the
recommendations of a substance abuse professional as described 49
CFR part 40).
* * * * *
7. * * *
* * * * *
(d) Number of covered employees who engaged in alcohol misuse
who were returned to duty in covered positions (having complied with
the recommendations of a substance abuse professional as described
in 49 CFR part 40).
V. CONSEQUENCES FOR EMPLOYEES ENGAGING IN ALCOHOL-RELATED CONDUCT
A. Removal From Safety-sensitive Function
1. Except as provided in 49 CFR part 40, no covered employee
shall perform safety-sensitive functions if the employee has engaged
in conduct prohibited by Sec. 65.46a, 121.458, or 135.253 of this
chapter or an alcohol misuse rule of another DOT agency.
* * * * *
C. Notice to the Federal Air Surgeon
* * * * *
[[Page 57867]]
2. Each such employer shall forward to the Federal Air Surgeon a
copy of the report of any evaluation performed under the provisions
of section VI.C. of this appendix within 2 working days of the
employer's receipt of the report.
* * * * *
E. Required Evaluation and Testing
No covered employee who has engaged in conduct prohibited by
Sec. 65.46a, 121.458, or 135.253 of this chapter shall perform
safety-sensitive functions unless the employee has met the
requirements of 49 CFR part 40. No employer shall permit a covered
employee who has engaged in such conduct to perform safety-sensitive
functions unless the employee has met the requirements of 49 CFR
part 40.
VI. ALCOHOL MISUSE INFORMATION, TRAINING, AND SUBSTANCE ABUSE
PROFESSIONAL
A. Employer Obligation to Promulgate a Policy on the Misuse of
Alcohol
* * * * *
2. Required Content. * * *
* * * * *
(i) The consequences for covered employees found to have
violated the prohibitions in this chapter, including the requirement
that the employee be removed immediately from performing safety-
sensitive functions, and the process in 49 CFR part 40, subpart O.
Issued in Washington, DC, on November 14, 2001.
Donald P. Byrne,
Assistant Chief Counsel, Regulations Division.
[FR Doc. 01-28868 Filed 11-16-01; 8:45 am]
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