[Federal Register Volume 69, Number 95 (Monday, May 17, 2004)]
[Proposed Rules]
[Pages 27980-27987]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-10815]



[[Page 27979]]

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Part III





Department of Transportation





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Federal Aviation Administration



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14 CFR Part 121



Antidrug and Alcohol Misuse Prevention Programs for Personnel Engaged 
in Specified Aviation Activities; Proposed Rule

  Federal Register / Vol. 69, No. 95 / Monday, May 17, 2004 / Proposed 
Rules  

[[Page 27980]]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 121

[Docket No. FAA-2002-11301; Notice No. 04-08]
RIN 2120-AH14


Antidrug and Alcohol Misuse Prevention Programs for Personnel 
Engaged in Specified Aviation Activities

AGENCY: Federal Aviation Administration, DOT.

ACTION: Supplemental notice of proposed rulemaking (SNPRM).

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SUMMARY: In Notice 02-04, published on February 28, 2002, the FAA 
proposed to make it clear that each person who performs a safety-
sensitive function directly or by contract (including by subcontract at 
any tier) for an employer is subject to drug and alcohol testing. The 
comment period closed on July 29, 2002. Several commenters stated that 
the change was more than clarifying and would have an economic impact. 
The FAA has prepared an initial regulatory evaluation on this issue. 
The FAA is reopening the issue for public comment before making a final 
determination.

DATES: Send your comments on or before August 16, 2004.

ADDRESSES: Address your comments to the Docket Management System, U.S. 
Department of Transportation, Room PL 401, 400 Seventh Street, NW., 
Washington, DC 20590-0001. You must identify the docket number FAA-
2002-11301 at the beginning of your comments, and you should submit two 
copies of your comments. If you wish to receive confirmation that FAA 
has received your comments, include a self-addressed, stamped postcard.
    You may also submit comments through the Internet to: http://dms.dot.gov. You may review the public docket containing comments to 
these proposed regulations in person in the Docket Office between 9 
a.m. and 5 p.m., on the plaza level of the Nassif Building at the 
Department of Transportation at the above address. Also, you may review 
public dockets on the Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Diane J. Wood, Manager, AAM-800, Drug 
Abatement Division, Office of Aerospace Medicine, Federal Aviation 
Administration, 800 Independence Avenue, SW., Washington, DC 20591, 
telephone number (202) 267-8442.

SUPPLEMENTARY INFORMATION:

Comments Invited

    The FAA invites interested persons to participate in this 
rulemaking by submitting written comments, data, or views. We also 
invite comments relating to the economic, environmental, energy, or 
federalism impacts that might result from adopting the proposals in 
this document. The most helpful comments reference a specific portion 
of the proposal, explain the reason for any recommended change, and 
include supporting data. We ask that you send us two copies of written 
comments.
    We will file in the docket all comments we receive, as well as a 
report summarizing each substantive public contact with FAA personnel 
concerning this proposed rulemaking. The docket is available for public 
inspection before and after the comment closing date. If you wish to 
review the docket in person, go to the address in the ADDRESSES section 
of this preamble between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays. You may also review the docket using the 
Internet at the Web address in the ADDRESSES section.
    Before acting on this proposal, we will consider all comments we 
receive on or before the closing date for comments. We will consider 
comments filed late if it is possible to do so without incurring 
expense or delay. We may change this proposal in light of the comments 
we receive.
    If you want the FAA to acknowledge receipt of your comments on this 
proposal, include with your comments a pre-addressed, stamped postcard 
on which the docket number appears. We will stamp the date on the 
postcard and mail it to you.

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 docket number, notice number or amendment number 
of this rulemaking.

Background

SNPRM General Information

    On February 28, 2002, the FAA published in the Federal Register a 
Notice of Proposed Rulemaking (NPRM), Notice 02-04, entitled Antidrug 
and Alcohol Misuse Prevention Programs for Personnel Engaged in 
Specified Aviation Activities (67 FR 9366). The purpose of Notice 02-04 
was to clarify regulatory language, increase consistency between the 
antidrug and alcohol misuse prevention program regulations where 
possible, and revise regulatory provisions as appropriate.
    In Notice 02-04, the FAA proposed to make it clear that each person 
who performs a safety-sensitive function directly or by contract 
(including by subcontract at any tier) for an employer is subject to 
testing. Several commenters indicated that the proposed clarification 
would impose an economic burden on the aviation industry. Therefore, 
the FAA is reopening the issue for public comment. We are proposing the 
same language again in this Supplemental Notice of Proposed Rulemaking 
(SNPRM).
    This SNPRM does not reopen the other proposals that were contained 
in Notice 02-04 or request further comments on those proposals. Those 
proposals, amended as appropriate in response to public comment, were 
published in a final rule on January 12, 2004 (69 FR 1840).

Subcontractor Issue Discussion

    In Notice 02-04, the FAA proposed to amend the language in 14 CFR 
part 121, appendix I, section III and appendix J, section II to make it 
clear that any contractor's employee who performs safety-sensitive work 
for an employer must be drug and alcohol tested. Currently, both 
sections specify that employees performing a listed safety-sensitive 
function are required to be tested if performing the function 
``directly or by contract for an employer.'' The change proposed in 
Notice 02-04 was to add the following parenthetical phrase after the 
word ``contract,'' so that it would be clear that

[[Page 27981]]

each person who performs a safety-sensitive function directly or by 
contract (including by subcontract at any tier) for an employer is 
subject to testing. In this SNPRM, we are proposing the same language 
as in Notice 02-04.
    While the regulations have always required that any person actually 
performing a safety-sensitive function be tested, the FAA provided 
conflicting guidance on this point in the past. As discussed in Notice 
02-04 (67 FR 9369 to 9370), in the initial implementation phase of the 
drug testing rule in 1989, the FAA issued informal guidance stating 
that maintenance subcontractors would not be required to test unless 
they took airworthiness responsibility for the work that they were 
performing. This guidance was provided widely to persons and companies 
in 1989 through 1990, and on an ad hoc basis thereafter until the mid 
1990s. This guidance constricted the potential reach of the plain 
language of the regulation as it applied to contractors. The FAA 
believes that constricting the scope of testing of contractors is in 
conflict with the objective of having each person who performs a 
safety-sensitive function actually tested.
    However, the FAA acknowledges that some employers and some 
maintenance providers may be confused about testing employees 
performing work under a subcontract. Therefore, in Notice 02-04 and 
again in this SNPRM, the FAA has proposed to make it clear that all 
persons performing safety-sensitive work must be tested. The level of 
contractual relationship with an employer should not be read as a 
limitation on the requirement that all safety-sensitive work be 
performed by drug- and alcohol-free employees.
    The FAA will rescind all conflicting informal guidance regarding 
subcontractors upon publication of the final rule on this issue.

Comments Received

    The comment period for Notice 02-04 was scheduled to close May 29, 
2002, but was extended until July 29, 2002 (67 FR 37361) as a result of 
public requests for extension. In Notice 02-04, the FAA proposed to 
make it clear that each person who performs a safety-sensitive function 
is subject to testing. The FAA received approximately 10 comments on 
the subcontractor issue. Several commenters, including the Air 
Transport Association of America (ATA), National Air Transportation 
Association (NATA), Regional Airline Association (RAA), and a joint 
filing by the Aeronautical Repair Station Association and 14 other 
entities (hereinafter referred to as ``ARSA''), indicated that the 
proposed clarification would impose an economic burden on the aviation 
industry. Therefore, the FAA is reopening the issue for public comment. 
The FAA is focusing its comment discussion solely on the subcontractor 
testing issue because all other issues were resolved in the final rule 
published on January 12, 2004.
    ARSA, with a supporting general comment from NATA, strongly opposed 
the proposal to test non-certificated maintenance subcontractors, which 
it believed would expand the scope of drug and alcohol testing to non-
aviation employees without enhancing safety. ARSA believed the proposed 
rule would impose significant new costs on companies that are not 
regulated by the FAA and on certificated entities that are in full 
compliance with current regulations. In addition, ARSA commented that 
the proposal did not adequately consider the costs and benefits as 
required by Executive Order 12866 or the impact on small entities under 
the Regulatory Flexibility Act of 1980. According to ARSA, the proposal 
would increase the costs of aviation maintenance at a time when the 
industry can least afford it and create an incentive for non-aviation 
companies to withdraw their support from the industry.
    Several commenters, including ARSA, ATA, RAA, and United 
Technologies Corporation (UTC), stated that the FAA issued conflicting 
guidance regarding the testing of subcontractors. The commenters 
reiterated much of the conflicting guidance we cited in Notice 02-04. 
Some commenters added that confusion further ensued as a result of 
Advisory Circular (AC) 121-30, Guidelines for Developing an Anti-Drug 
Plan for Aviation Personnel, issued March 16, 1989. This AC was 
cancelled May 20, 1994.
    The FAA acknowledges the concerns of commenters regarding the 
confusion that ensued from multiple FAA guidance documents on testing 
subcontractors. It is because of this conflicting guidance that we have 
proposed clarifying language regarding the subcontractor issue. Because 
the FAA merely considered this a clarification, the issue was not 
included in the Regulatory Evaluation for Notice 02-04. In response to 
the comments and concerns regarding the subcontractor issue and 
potential costs, the FAA has now prepared a draft Regulatory Evaluation 
for this SNPRM. For a discussion of the cost comments, see the draft 
Regulatory Evaluation that is included in the docket for this 
rulemaking (Docket No. FAA-2002-11301).
    We are publishing this SNPRM to gather public comment on the FAA's 
economic analysis and proposed change, in order to fully evaluate this 
issue before making a final decision.
    In its objections to the proposed clarification, ARSA cited the 
Omnibus Transportation Employees Testing Act of 1991 (Omnibus Act), 49 
U.S.C. 45101, et seq. ARSA believes that the Omnibus Act limits the 
category of persons subject to testing to only air carrier employees 
and possibly direct contractors. ARSA states extending the coverage to 
subcontractors ``is far more tenuous.'' In support of its concerns, 
ARSA also cites Senate Report No. 102-54, 1991, which encouraged the 
FAA Administrator to ``be very selective in extending the coverage of 
this provision to other categories of air carrier employees.'' In its 
comments the ATA stated that ``because the regulation technically can 
reach every single person who falls within the covered function 
definition, does not mean that every such person should be included.''
    In reviewing the language of the Omnibus Act, as well as the 
legislative history, the FAA finds much support for the coverage of 
individuals performing safety-sensitive functions without regard to the 
degree of contractual relationships. In the Omnibus Act, Congress 
acknowledged that the FAA already had regulations requiring the testing 
of air carrier employees performing directly or by contract, and the 
Omnibus Act ``does not prevent the Administrator from continuing in 
effect, amending, or further supplementing a regulation prescribed 
before October 28, 1991, governing the use of alcohol or a controlled 
substance by airmen, crewmembers, airport screening employees, air 
carrier employees responsible for safety-sensitive functions (as 
decided by the Administrator) * * *.'' 49 U.S.C. 45106(c) Congress was 
referring to 14 CFR part 121, appendix I, which clearly included in the 
description of safety-sensitive personnel any individual who was 
performing directly or by contract for an air carrier. Among the air 
carrier employees responsible for safety-sensitive functions are those 
individuals who perform aircraft maintenance and preventive 
maintenance. In Senate Report No. 102-54, which was cited by ARSA, the 
Senate Committee on Commerce, Science, and Transportation, specifically 
indicated that the new statute would continue to require testing of 
mechanics.
    At one time, many of the individuals who performed safety-sensitive 
functions were direct employees of the air carriers themselves. 
However, the

[[Page 27982]]

trend in aviation has been to contract out many functions, including 
the maintenance and preventive maintenance of aircraft. According to a 
report of the Inspector General (IG) of the United States Department of 
Transportation, there has been a significant increase in air carriers' 
use of repair stations for outsourced aircraft maintenance. The IG 
cautioned the FAA ``to pay close attention to the level of oversight it 
provides for repair stations.'' The IG further advised the FAA ``to 
consider this shift in maintenance practices when planning its safety 
surveillance work.'' (See pages 7 and 18 of The State of the Federal 
Aviation Administration, Statement of the Honorable Kenneth M. Mead, 
Inspector General, appearing before the Committee on Commerce, Science, 
and Transportation, United States Senate, Report No. CC-2003-068, 
February 11, 2003.) In addition, the IG noted on page 1 of a report 
entitled ``Review of Air Carriers' Use of Aircraft Repair Stations,'' 
(IG Report No. AV-2003-047, July 8, 2003,) that ``in 1996 major air 
carriers spent $1.5 billion (37 percent of their total maintenance 
costs) for outsourced aircraft maintenance. However, in 2002, the major 
carriers outsourced $2.5 billion (47 percent of their total maintenance 
costs) in maintenance work.'' The July 8, 2003, report indicated that 
between 1996 and 2002, U.S. carriers experienced accidents and 
incidents that have been tied to improper maintenance or maintenance 
mistakes.
    Thus, the FAA believes that it has the statutory authority and, in 
the interest of aviation safety, the responsibility to require that 
individuals who actually perform safety-sensitive duties are subject to 
drug and alcohol testing. In providing FAA the authority to ``further 
supplement'' the regulations that existed in 1991, Congress empowered 
the FAA to amend and adapt the regulations as appropriate.
    Several commenters, including ARSA, believe that non-certificated 
maintenance contractors are not authorized to have drug and alcohol 
testing programs of their own. This is incorrect. Since the beginning 
of the programs, certificated and non-certificated contractors have 
been allowed, but not required, to submit and implement antidrug 
programs under 14 CFR Part 121, appendix I, formerly sections IX.A.3-4, 
now sections IX, A and IX.C.2; and alcohol misuse prevention programs 
under 14 CFR part 121, appendix J, formerly section VII.A.2, now 
section VII.A and section VII.C.2. In fact, recently the FAA's drug and 
alcohol testing program plan database included 1,207 drug plans 
approved for non-certificated entities. The majority of non-
certificated entities, approximately 1,188 companies, perform safety-
sensitive maintenance work.
    In addition, the FAA notes that the certificated and non-
certificated entities that currently have FAA drug and alcohol testing 
programs have not identified themselves specifically as prime 
contractors or as subcontractors. These entities may be working as a 
prime contractor for one air carrier and as a subcontractor for another 
air carrier. Therefore, it would not be practical to limit testing to 
only prime contractors.
    ARSA stated that the FAA's proposal, if adopted, would impose 
significant administrative burdens on air carriers and repair stations 
in at least two areas. The first is the burden of adding subcontractors 
to the quality auditing process. ARSA noted that in the airline 
industry, air carriers periodically audit their direct maintenance 
providers or accomplish this through the Coordinating Agency for 
Supplier Evaluation (CASE) to ensure that all employees who perform 
safety-sensitive functions are covered by drug and alcohol testing 
programs. According to ARSA, these audits do not extend to maintenance 
subcontractors with whom the air carrier has no direct relationship. 
The second administrative burden occurs in ``determining whether the 
non-certificated subcontractor would have its own drug and alcohol 
program, an option under the FAA's proposed registration mechanism, or 
whether it would be included in an existing program of its 
contractor.''
    The FAA believes that it is an excellent business practice for an 
air carrier to audit its maintenance contractors. Although this is a 
business decision, the FAA believes that an auditing process is a good 
way to determine if an entity (at any tier) not only has FAA drug and 
alcohol testing programs, but also is implementing its programs and 
testing its employees. However, while an auditing process is a good 
tool for determining contractor compliance, there are other less costly 
and less ``burdensome'' tools for a company to ensure contractor 
compliance with the drug and alcohol testing regulations. For example, 
a company could use a simple questionnaire to determine if its 
contractors (at any tier) have a program and are testing their 
employees who perform safety-sensitive duties.
    In response to ARSA's second concern, the FAA would like to 
reiterate that, since the beginning of its testing regulations, 
certificated and non-certificated contractors have been allowed, but 
not required, to submit and implement FAA testing programs. Thus, under 
the current regulations and under this proposal, contractors make a 
business decision about whether to have their own programs or obtain 
coverage under another company's programs.
    Some commenters, including ARSA, raised concerns that 
subcontractors who perform repairs on equipment that is not typically 
considered to be aviation-related would be subject to testing under the 
proposed rule change. For example, the commenters suggested the 
following people would be covered by the proposed rule change: those 
who repair entertainment systems and telephones; those who repair and 
refurbish rugs, Formica, wood products and plumbing materials; and dry 
cleaners who clean aircraft seats in accordance with a component 
maintenance manual. The drug and alcohol regulations already require 
that any person who performs maintenance or preventive maintenance for 
an employer must be drug and alcohol tested. The purpose of this 
rulemaking is not to specify what constitutes maintenance or preventive 
maintenance, which are defined by the FAA in 14 CFR 1.1, and 14 CFR 
part 43. Instead the purpose of this rulemaking is to make it clear 
that all persons who perform safety-sensitive maintenance or preventive 
maintenance functions are actually tested.
    Whenever maintenance is being performed, it potentially affects the 
safety of the aircraft. Thus, the FAA believes it is important that all 
people who perform any type of safety-sensitive maintenance function be 
subject to testing, even if the maintenance duties are not 
traditionally considered to be aviation-related. Some of the commenters 
believed that people performing maintenance not traditionally 
considered aviation-related would not be aware of this rulemaking. The 
FAA notes that many of these people are already covered by the 
regulations and are subject to testing. For those who are performing 
maintenance not traditionally considered aviation-related, the FAA 
expects that employers and direct contractors would know of this 
rulemaking and would notify their subcontractors.
    ARSA requested that, in the final rule, the FAA clarify ``in a 
multiple tier situation which of the upstream maintenance providers 
would be responsible if a violation of the drug and alcohol rules was 
committed by a lower tier provider''

[[Page 27983]]

    The compliance responsibility depends upon the specific facts. 
Normally, the FAA considers any company that holds itself out as having 
a registration statement or Operations Specification (OpSpec) to 
conduct drug and alcohol testing to be responsible for compliance with 
the regulations. Under the proposal, any higher tiered contractor that 
uses a subcontractor to perform safety-sensitive work would either 
include the subcontractor's safety-sensitive employees in its program 
or ensure that the subcontractor has a registration statement or OpSpec 
to conduct drug and alcohol testing. The ultimate responsibility for 
ensuring that the first tier contractor has a program, of course, rests 
with the air carrier.
    Some of the commenters, including ARSA, raised fundamental issues 
regarding whether they and air carriers can be held responsible for the 
compliance with essential safety requirements being performed for them 
by contractors at different levels. One commenter, a repair station, 
stated that it ``does not have the time or resources to monitor all the 
contractors that might perform some of our maintenance related work. 
Even if we could, our end customer could not afford to pay the cost for 
the article's repair or overhaul. Somewhere in our customer's bill we 
would have to attempt to recoup the expenses generated during our 
monitoring of all the vendors and sub-contractors involved.'' In 
addition, ARSA referred to ``the fiction that an air carrier or any of 
its direct contractors can reasonably and practically be expected to 
ensure the compliance of lower tier providers with whom they have no 
direct relationship.''
    The FAA is concerned about any suggestion that contracting or 
subcontracting out safety-sensitive work could relieve any entity, 
especially an air carrier, of its responsibilities to ensure compliance 
with the regulations. Contracting out work to another entity does not 
mean that an entity is no longer responsible for ensuring compliance 
with safety requirements. Air carrier safety is the core responsibility 
of the air carrier. The air carrier may opt to partner with its 
maintenance providers to ensure that all maintenance work is provided 
in accordance with the regulations. However, the safety of the air 
carrier's maintenance and operations ultimately rests with the air 
carrier.
    UTC commented that ``the FAA needs to keep the antidrug and alcohol 
program responsibility with the air carriers and not extend it to 
maintenance providers.'' The FAA agrees with UTC that the 
responsibility for drug and alcohol testing of employees should remain 
with the air carrier and should not become a requirement of the 
maintenance providers. In keeping with the Omnibus Act and consistent 
with the history of the drug and alcohol testing regulations, this 
proposal does not require maintenance providers to conduct testing. 
However, maintenance providers may choose to obtain a testing program. 
Once a maintenance provider registers with the FAA or obtains an OpSpec 
to conduct drug and alcohol testing, the maintenance provider thereby 
undertakes the responsibility to properly comply with the regulations.
    ARSA commented that the FAA's proposal is based on a fundamental 
misunderstanding of the maintenance industry's use of subcontractors. 
Prior to and following the issuance of the NPRM, ARSA and the Aerospace 
Industries Association surveyed their memberships about maintenance 
subcontracting practices. For a discussion of the survey results and 
related correspondence between the FAA and ARSA, see the draft 
Regulatory Evaluation for this SNPRM that is included in the docket for 
this rulemaking (Docket No. FAA-2002-11301).
    ARSA stated that if the proposed rule language, ``including by 
subcontract at any tier'', is adopted, the FAA will need to determine 
how these additional employees will be integrated into the program. 
ARSA recommended that the FAA permit these employees to be added to the 
existing pool of covered employees for purposes of random testing 
without subjecting them to pre-employment testing. ARSA believes this 
``grandfather provision'' would be much less disruptive and would 
recognize the fact that they have been previously performing these 
functions without being covered by the drug and alcohol rules and 
without any adverse effect on safety.
    The FAA acknowledges ARSA's concern that there may be a disruption 
in the provision of some maintenance service in the industry resulting 
from the pre-employment testing of maintenance subcontractors who are 
already performing safety-sensitive functions but who are not being 
tested. Although ARSA suggested that a ``grandfather provision'' be 
added for pre-employment testing subcontractors who have not already 
been conducting drug and alcohol testing, the FAA is concerned about 
``grandfathering'' subcontractors into the regulation because of the 
high drug positive rate for maintenance workers. Instead, the FAA 
believes that proposing an extended compliance date for conducting pre-
employment testing of subcontractors who are not already being tested 
is reasonable. Therefore, the FAA is proposing language that would 
extend the requirement for pre-employment testing existing 
subcontractor employees to 90 days from the effective date of the final 
rule, if adopted. While these employees must be pre-employment drug 
tested and the employer must receive a negative drug test result, there 
is no requirement that the employee be removed from performance of 
safety-sensitive functions while the employer is awaiting the negative 
drug test result. However, if the employee refuses to submit to testing 
or the employer receives a positive drug test result on the employee, 
the employer must immediately remove the employee from the performance 
of safety-sensitive functions.
    Both ARSA and UTC commented that the applicability of the drug and 
alcohol testing regulations should not be extended beyond the level 
where a direct contractual relationship exists. Specifically, ARSA 
urged the FAA to limit the drug and alcohol testing rules only to those 
maintenance providers that have a direct contract with a U.S. air 
carrier and that take airworthiness responsibility for the work they 
perform. As an alternative, ARSA requested that the FAA retain a past 
interpretation on maintenance subcontractors and add an exclusion from 
drug and alcohol testing for employees of non-certificated entities. 
ARSA provided two versions of suggested rule language to address these 
concerns.
    The FAA has reviewed the two alternative rule language proposals 
that ARSA submitted in its comments. ARSA's first alternative ``Covers 
only those individuals who perform safety sensitive functions as (1) an 
employee for a Part 121 or Part 135 air carrier, or Sec.  135.1(c) 
operator, or (2) under a direct contract with these entities.''
    The FAA does not believe that this alternative will provide a 
workable solution to the issue of testing subcontractors because the 
proposal would change the focus of drug and alcohol testing away from 
``who performs the work.'' Under ARSA's proposal it would be easy to 
avoid the drug and alcohol testing regulations by simply creating 
additional tiers in the contractual relationship.
    ARSA's second alternative ``Covers the individuals specified in 
Alternative 1, above plus any person (including maintenance 
subcontractors at any tier)

[[Page 27984]]

that (1) takes airworthiness responsibility for the work they perform 
under Part 43 and/or Part 145 * * *, and (2) has actual knowledge, at 
the time the work is performed, that it is being accomplished for a 
Part 121 or Part 135 air carrier, or a Sec.  135.1(c) operator.''
    The FAA does not believe that this alternative meets the 
requirements of safety because it still allows certain persons who are 
performing safety-sensitive work not to be tested. ARSA's proposal 
would except from testing individuals who are doing hands-on 
maintenance merely because these individuals are not signing off on the 
airworthiness responsibility for the work they perform.
    We received one comment from a non-certificated maintenance 
subcontractor that performs electro-plating for certificated repair 
stations. This commenter explained that only about 20% of its business 
is related to aviation, but ``because we cross-utilize our employees, 
all would have to be covered under Part 121, Appendix I and J because 
they could be called upon to work on equipment operated by a U. S. air 
carrier.'' This commenter stated, ``It seems incongruous to us that the 
FAA would allow us to perform a subcontracted maintenance function 
without a repair station certificate while at the same time requiring 
us to subject our employees to a drug and alcohol testing program.''
    The commenter is correct in understanding that, under the facts it 
presented, drug and alcohol testing is necessary for all safety-
sensitive employees who are cross-utilized to perform maintenance and 
preventive maintenance duties for an air carrier subject to the drug 
and alcohol testing regulations. This is because the regulations have 
always required that employees performing any safety-sensitive duties 
be tested. It is not incongruous for the scope of the FAA's drug and 
alcohol testing regulations to be different from the scope of the FAA's 
repair station certification regulations. The question of keeping 
illegal drug users and alcohol misusers out of the performance of 
safety-sensitive work is very different from the issue of technical 
qualifications. The drug and alcohol testing regulations are focused on 
who actually does the work, and not on the person's technical 
qualifications to do the work or airworthiness responsibility under the 
regulations. The testing regulations and the certification regulations 
are different because they focus on different safety concerns.
    In addition, although the commenter was concerned that all of its 
employees would need to be tested because all of them were cross-
utilized, that is not necessarily the case. For business reasons, an 
employer may decide not to designate all employees as eligible to be 
cross-utilized to perform safety-sensitive functions. Only the 
employees who are designated as eligible to be cross-utilized would 
need to be tested.
    Several commenters, including ATA, RAA, ARSA, and the Aircraft 
Owners and Pilots Association (AOPA), stated that the FAA did not 
provide a safety justification for the proposed rule change. Because 
the FAA viewed the proposal in Notice 02-04 as a clarifying amendment, 
we did not discuss the history of the safety justification for testing 
employees who perform safety-sensitive functions.
    The safety considerations that support this proposal are clearly 
implied from the history of the drug and alcohol testing regulations. 
Since the inception of the drug and alcohol testing regulations, the 
annual statistical data indicate that a significant number of the 
positive test results for both drug and alcohol occur in the 
maintenance field. Between 1990 and 2001, aviation employers reported 
30,192 positive drug test results for all occupations, with 15,340 of 
those positive drug test results attributable to maintenance workers. 
Between 1995 and 2001, aviation employers reported 876 alcohol 
violations for all occupations, with 423 of those violations 
attributable to maintenance workers.
    If we do not require the testing of all employees who perform 
safety-sensitive functions directly or by contract (including by 
subcontract at any tier) for an employer, we would omit from testing 
employees in the aviation industry who have demonstrated a significant 
history of illegal drug use and alcohol misuse. Therefore, we believe 
this proposal is in the interest of aviation safety.

Paperwork Reduction Act

    This rule contains information collections that are subject to 
review by OMB under the Paperwork Reduction Act of 1995 (Pub. L. 104-
13). The title, description, and respondent description of the annual 
burden are shown below.
    Estimated Burden: The FAA expects that this proposed rule would 
impose additional reporting and recordkeeping requirements on non-
certificated maintenance contractor companies that would need to put 
together antidrug and alcohol misuse prevention programs and then 
implement them; it would have the following impacts:
     Additional training and education program, including 
education programs for anti-drug and alcohol misuse prevention 
programs, training all employees to the requirements of these programs, 
and training supervisors to make reasonable cause/reasonable suspicion 
determinations, which, on an annual basis, sums to $44,951, taking 
1,330.11 hours;
     Program development and maintenance, including developing 
each program and producing the registration information and submitting 
it to the FAA, which, on an annual basis, averages $1,670, taking 79.50 
hours; and
     Annual documentation, including the documentation for the 
aforementioned training, reasonable suspicion cases, post-accident 
alcohol tests, refusal to take tests, and positive tests, which, on an 
annual basis, averages $2,216, taking 105.53 hours.
    The total impact on these companies and on their maintenance and 
preventive maintenance employees averages $48,837, taking 1,515.14 
hours annually.
    The regulation will increase paperwork for the Federal government, 
as the FAA would need to process the registration information for these 
non-certificated maintenance contractor companies, averaging $1,897 
annually, taking an average of 8.25 hours.
    Persons are not required to respond to a collection of information 
unless it displays a currently valid OMB control number. The burden 
associated with this rule has been submitted to OMB for review. The FAA 
will publish a notice in the Federal Register notifying the public of 
the OMB approval number.

International Compatibility

    In keeping with U.S. obligations under the Convention on 
International Civil Aviation, it is FAA policy to comply with 
International Civil Aviation Organization (ICAO) Standards and 
Recommended Practices to the maximum extent practicable. The FAA has 
reviewed the corresponding ICAO Standards and Recommended Practices and 
has identified no differences with these regulations.

Regulatory Evaluation Summary

Total Costs and Benefits of This Rulemaking

    The estimated cost of this proposed rule is $3.57 million ($2.67 
million, discounted). The estimated potential benefits are $7.53 
million ($5.29 million, discounted).

[[Page 27985]]

Who Is Potentially Affected by This Rulemaking

Private Sector
    Approximately 300 non-certificated maintenance contractors that 
would have to develop antidrug and alcohol misuse prevention programs, 
affecting about 5,500 employees in 2004, rising to approximately 6,250 
employees by 2013.
Government
    The FAA will need to process the submitted registration information 
from each of the subcontractors.

Our Cost Assumptions and Sources of Information

    The FAA disagrees with the commenters' assertion that we are 
changing the current regulations. Instead we continue to believe that 
we are simply clarifying the regulations. However, if the commenters 
are correct, then we believe that the proposed rule language would 
increase the number of personnel tested by no more than 2.5%.
    Although we believe that we are merely clarifying the regulations, 
we recognize that, due to the previous conflicting guidance, some 
companies with existing programs and some non-certificated contractors 
may have to modify their current alcohol misuse prevention and antidrug 
programs. In addition, some non-certificated contractors may have to 
join another company's program or implement their own program. The FAA 
does not know how many additional employees or contractor companies 
would be subject to alcohol misuse prevention and antidrug testing, but 
will base costs on the following assumptions:
     There are currently 1,188 non-certificated maintenance 
contractors with antidrug program plans and alcohol misuse prevention 
programs.
     The FAA is basing costs on an increase of 25%, for an 
additional 297 contractors; this is expected to rise to 315 in 2013.
     The FAA will base costs on subcontractors initiating and 
implementing their own programs as opposed to their being covered under 
another company's program.
     The FAA will base costs, in this analysis, on an 
additional 2.5% maintenance workers being subject to the antidrug and 
alcohol misuse prevention programs. Accordingly, the FAA expects an 
additional 5,466 employees to be subject to these proposed rules in 
2004; thus each of these companies would have to test 18 employees in 
2004.
     The FAA estimates that the number of employees in the 
maintenance sector grows at 1.5% per year. Thus, the number of 
additional employees to be tested is expected to rise to 6,250 in 2013.
     The FAA assumes that there would be two supervisors per 
contractor and the attrition rate for mechanics is approximately 10% 
per year.
    The FAA believes that the actual number of employees, additional 
companies, and employees per company would be less than what is being 
assumed for this analysis, but the FAA is using this number so as to be 
conservative and not underestimate costs.

Additional Assumptions

     Discount rate--7%.
     Period of analysis--2004 through 2013.
     All monetary values are expressed in 2002 dollars.
     Price of a drug test--$45.
     Price of an alcohol test--$34.
     Time for a drug or alcohol test (hours)--0.75.
     One instructor for every 20 supervisors and/or employees 
to be trained.
     Value of fatality avoided--$3.0 million.
     Value of avoiding a destroyed aircraft--$241,000.
     Value of avoiding a substantially damaged aircraft--
$32,535.

Alternatives We Considered

    As this proposal would simply emphasize sections of existing 
regulations, no alternatives were considered.

Benefits of This Rulemaking

    The major benefit from this rulemaking would be the prevention of 
potential injuries and fatalities and property losses resulting from 
accidents attributed to neglect or error on the part of individuals 
whose judgment or motor skills may be impaired by the presence of drugs 
and/or alcohol.
    There was an average of about one part 135 accident every 2 years 
that resulted in at least two fatalities over the last 10 years; the 
historical data showed an average of five fatalities for each of these 
accidents. Avoiding these accidents yields benefits of $15 million in 
fatalities avoided; avoiding the average of one accident every 2 years 
halves these benefits to $7.5 million in fatalities avoided per year.
    This analysis contains benefits resulting from not having to repair 
or replace damaged or destroyed aircraft. The most common aircraft 
involved was the Piper PA-31-350. There were about five times as many 
substantially damaged aircraft as destroyed aircraft, so the FAA will 
base the benefits of avoiding one such accident over the next 20 years, 
thus avoiding, in the next 10 years half a destroyed aircraft, valued 
at $33,600.
    Over the last 10 years, there were 63 part 135 accidents 
attributable to maintenance as either a cause or a factor in the NTSB 
accident report, or an average of six a year. Of these 63, six of them 
had at least two fatalities per accident, with the average such 
accident averaging five fatalities per accident. While there have been 
no documented aviation accidents directly attributed to the misuse or 
abuse of drugs or alcohol, the FAA believes it is possible that such 
misuse or abuse may have contributed to aviation-related accidents. 
Accordingly, the FAA believes it is prudent to base benefits on 
avoiding one such part 135 accident over the next 20 years, thus 
avoiding in the next 10 years, an estimated total of 2\1/2\ fatalities 
and half a destroyed airplane. These number of accidents, fatalities, 
and destroyed airplanes are less than or equal to 1% of all 
maintenance-related accidents that had occurred over the last 10 years; 
the FAA considers these benefits to be both conservative and 
reasonable.
    The total benefits of this rulemaking were calculated by assuming 
an equally likely chance of avoiding these accidents in each of the 
next 10 years. Total benefits sum to $7.53 million ($5.29 million, 
discounted).

Costs of This Rulemaking

    Assuming, under this proposal, an additional 2.5% maintenance 
workers would be subject to the antidrug and alcohol misuse prevention 
programs, from 2004 to 2013, the total cost of the rule is estimated to 
be approximately $3.57 million ($2.67 million, discounted); almost all 
of these costs are private sector costs. The costs are in four areas:
    (1) Testing costs--All the new employees would be subject to all 
the normal tests--pre-employment, random, post-accident, reasonable 
cause, return to duty, and follow-up. The cost of testing includes both 
the actual cost of the test as well as the cost of the employee's time. 
Over 10 years, additional testing costs sum to $2.76 million ($1.99 
million, discounted).
    (2) Training and Education Costs--For both the alcohol misuse 
prevention and the antidrug programs, the employer must train each 
supervisor who would make reasonable cause determinations. Supervisors 
must also receive training

[[Page 27986]]

on the effects and consequences of drug use. In addition, all employees 
need to be trained as to the requirements of the alcohol misuse 
prevention program and the antidrug program. All companies would be 
required to establish education programs for both the antidrug program 
and the alcohol misuse prevention program. Over 10 years, total 
training and education costs sum to $682,700 ($560,000, discounted).
    (3) Program Development & Maintenance Costs--Each subcontractor 
would have to devote resources to developing an antidrug and alcohol 
misuse prevention testing program. In addition, each of these 
subcontractors would have to spend time to produce information required 
for their registration and submit it to the FAA. At the FAA, the 
submitted information would have to be processed, and also entered into 
the appropriate database. Over 10 years, total program development and 
maintenance costs sum to $111,200 ($101,800, discounted).
    (4) Annual Documentation Costs--Each subcontractor needs to 
document certain events; over 10 years, annual documentation costs for 
these events sum to $21,200 ($16,600, discounted). They include:
--A company's supervisory personnel who make reasonable cause and 
reasonable suspicion testing determinations must receive specific 
training on specific indicators of probable drug and alcohol use and 
misuse. The regulations require each company to document the training;
--Employees also need to be trained as to the requirements of the 
antidrug program. The regulations require each company to document this 
training;
--Companies would have to document all reasonable suspicion cases;
--If a post-accident alcohol test is not administered within 2 and 8 
hours following the accident, the employer has to document each, 
stating the reasons the test was not promptly administered;
--Each company must notify the FAA within 5 working days of any 
employee holding a 14 CFR part 61, 63, or 65 certificate who refused to 
submit to a required drug or alcohol test; and
--The Medical Review Officer (MRO) needs to send a positive drug test 
report to the FAA within 12 working days after verifying a positive 
drug or alcohol test result for any individual who holds a part 67 
medical certificate.

Regulatory Flexibility Determination

    For this rule, the small entity group is considered to be part 145 
repair stations (SIC Code 4581, 7622, 7629, and 7699). The FAA has been 
unable to determine how many of the part 145 repair stations and their 
subcontractors are considered small entities. However, as noted in the 
Assumptions and Basic Data portion of the ``Cost of Compliance'' 
section, for the purposes of this analysis, the FAA assumed that the 
average non-certificated maintenance contractor company would have to 
test an average of 19 employees over the 10 years examined by this 
analysis. Most, if not all, of these companies would be considered 
small entities.
    This proposed rule would cost $3.57 million over 10 years ($2.67 
million, discounted). This proposed rule would affect, on average, 306 
companies; hence, the cost impact on the average company would be 
$11,700 ($8,700, discounted). Using the capital recovery rate of 
0.14238 yields an annualized cost of about $1,200. The FAA does not 
know the annual median revenue of these companies, but, given an 
average of 19 employees who would have to be tested, we believe it is 
well in excess of $120,000 annually. Since annualized costs would be 
less than 1% of annual median revenue, the FAA believes that this 
proposed action would not have a significant economic impact on a 
substantial number of small entities. The FAA solicits comments on this 
determination, on these assumptions, on the annualized cost per 
company, and on their annual revenue; the FAA requests that all 
comments be accompanied by full documentation.

International Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
establishing any standards or engaging in related activities that 
create unnecessary obstacles to the foreign commerce of the United 
States. Legitimate domestic objectives, such as safety, are not 
considered unnecessary obstacles. The statute also requires 
consideration of international standards and, where appropriate, that 
they be the basis for U.S. standards. The FAA has assessed the 
potential effect of this SNPRM and has determined that it would have 
only a domestic impact and therefore no affect on any trade-sensitive 
activity.

Unfunded Mandates Assessment

    The Unfunded Mandates Reform Act of 1995 (the Act) is intended, 
among other things, to curb the practice of imposing unfunded Federal 
mandates on State, local, and tribal governments. Title II of the Act 
requires each Federal agency to prepare a written statement assessing 
the effects of any Federal mandate in a proposed or final agency rule 
that may result in an expenditure of $100 million or more (adjusted 
annually for inflation) in any one year by State, local, and tribal 
governments, in the aggregate, or by the private sector; such a mandate 
is deemed to be a ``significant regulatory action.''
    This final rule does not contain such a mandate. The requirements 
of Title II do not apply.

Executive Order 13132, Federalism

    The FAA has analyzed this proposed rule under the principles and 
criteria of Executive Order 13132, Federalism. We determined that this 
action would not have a substantial direct effect 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, we determined that this proposed rule does not 
have federalism implications.

Environmental Analysis

    FAA Order 1050.1D defines FAA actions that may be categorically 
excluded from preparation of a National Environmental Policy Act (NEPA) 
environmental impact statement. In accordance with FAA Order 1050.1D, 
appendix 4, paragraph 4(j), this proposed rulemaking action qualifies 
for a categorical exclusion.

List of Subjects in 14 CFR Part 121

    Air carriers, Aircraft, Airmen, Alcohol abuse, Alcoholism, Aviation 
Safety, Charter flights, Drug abuse, Drug Testing, Safety, 
Transportation.

The Proposed Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration proposes to amend part 121 of Title 14, Code of Federal 
Regulations 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, 46301.

    2. Amend appendix I to part 121 by revising the introductory text 
of section III and by adding paragraph A.6. of section V.

Appendix I to Part 121--Drug Testing Program

* * * * *
    III. Employees Who Must be Tested. Each employee, including any 
assistant, helper, or

[[Page 27987]]

individual in a training status, who performs a safety-sensitive 
function listed in this section directly or by contract (including 
by subcontract at any tier) for an employer as defined in this 
appendix must be subject to drug testing under an antidrug program 
implemented in accordance with this appendix. This includes full-
time, part-time, temporary, and intermittent employees regardless of 
the degree of supervision. The safety-sensitive functions are:
* * * * *
    V. Types of Drug Testing Required. * * *
    A. Pre-employment Testing.
* * * * *
    6. If an individual has been performing safety-sensitive work 
under a subcontract prior to (effective date of this regulation), 
the employer must conduct a pre-employment test and receive a 
negative test result on that individual no later than (90 days after 
the effective date of this regulation.)
* * * * *
    3. Amend appendix J to part 121 by revising paragraph A. 
introductory text of section II.

Appendix J to Part 121--Alcohol Misuse Prevention Program

* * * * *

II. Covered Employees

    A. Each employee, including any assistant, helper, or individual 
in a training status, who performs a safety-sensitive function 
listed in this section directly or by contract (including by 
subcontract at any tier) for an employer as defined in this appendix 
must be subject to alcohol testing under an alcohol misuse 
prevention program implemented in accordance with this appendix. 
This includes full-time, part-time, temporary, and intermittent 
employees regardless of the degree of supervision. The safety-
sensitive functions are:
* * * * *

    Issued in Washington, DC, on May 5, 2004.
Charles J. Ruehle,
Acting Federal Air Surgeon.
[FR Doc. 04-10815 Filed 5-14-04; 8:45 am]
BILLING CODE 4910-13-P