[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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