[Federal Register Volume 69, Number 239 (Tuesday, December 14, 2004)]
[Proposed Rules]
[Pages 74898-74904]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27216]



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Part V





Department of Transportation





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Federal Aviation Administration



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14 CFR Parts 61, 63, et al.



Disqualification for Airman and Medical Certificate Holders Based on 
Alcohol Violations and Refusals to Submit to Drug or Alcohol Testing; 
Proposed Rule

  Federal Register / Vol. 69, No. 239 / Tuesday, December 14, 2004 / 
Proposed Rules  

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 61, 63, 65, 67, 91, 121, and 135

[Docket No. FAA-2004-19835]
RIN 2120-AH82


Disqualification for Airman and Medical Certificate Holders Based 
on Alcohol Violations and Refusals to Submit to Drug or Alcohol Testing

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The FAA proposes to amend the airman medical certification 
standards to disqualify an airman based on an alcohol test result of 
0.04 or greater breath alcohol concentration (BAC) or a refusal to take 
a drug or alcohol test required by the Department of Transportation 
(DOT) or a DOT agency. Further, the FAA proposes to standardize the 
time period for reporting refusals and certain test results to the FAA, 
and to require employers to report pre-employment and return-to-duty 
test refusals. We also propose to amend the airman certification 
requirements to allow suspension or revocation of airman certificates 
for pre-employment and return-to-duty test refusals. Finally, we 
propose to amend the regulations to recognize current breath alcohol 
testing technology. These amendments are necessary to ensure that 
persons who engage in substance abuse do not operate aircraft or 
perform contract air traffic control tower operations until it is 
determined that these individuals can operate safely.

DATES: Send your comments to reach us by March 14, 2005.

ADDRESSES: You may send comments [identified by Docket Number 2004-
19835] using any of the following methods:
     DOT Docket Web site: Go to http://dms.dot.gov and follow 
the instructions for sending your comments electronically.
     Government-wide rulemaking Web site: Go to http://www.regulations.gov and follow the instructions for sending your 
comments electronically.
     Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-001.
     Fax: 1-202-493-2251.
     Hand Delivery: Room PL-401 on the plaza level of the 
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
    For more information on the rulemaking process, see the 
SUPPLEMENTARY INFORMATION section of this document.
    Privacy: We will post all comments we receive, without change, to 
http://dms.dot.gov, including any personal information you provide. For 
more information, see the Privacy Act discussion in the SUPPLEMENTARY 
INFORMATION section of this document.
    Docket: To read background documents or comments received, go to 
http://dms.dot.gov or to Room PL-401 on the plaza level of the Nassif 
Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Sherry M. de Vries, Aeromedical 
Standards and Substance Abuse Branch, Medical Specialties Division, 
AAM-210, Office of Aerospace Medicine, Federal Aviation Administration, 
800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-
8693.

SUPPLEMENTARY INFORMATION:

Comments Invited

    The FAA invites interested persons to take part in this rulemaking 
by sending written comments, data, or views. We also invite comments 
about 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 
about 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 by 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 because of the comments we receive.
    If you want the FAA to acknowledge receipt of your comments on this 
proposal, include with your comments a preaddressed, stamped postcard 
on which the docket number appears. We will stamp the date on the 
postcard and mail it to you.
    Privacy Act: Using the search function of our docket web site, 
anyone can find and read the comments received into any of our dockets, 
including the name of the individual sending the comment (or signing 
the comment on behalf of an association, business, labor union, etc.). 
You may review DOT's complete Privacy Act Statement in the Federal 
Register published on April 11, 2000 (65 FR 19477-78) or you may visit 
http://dms.dot.gov.

Availability of Rulemaking Documents

    You can get an electronic copy using the Internet by:
    (1) Searching the Department of Transportation's electronic Docket 
Management System (DMS) web page (http://dms.dot.gov/search);
    (2) Visiting the Office of Rulemaking's web page at http://www.faa.gov/avr/arm/index.cfm; or
    (3) Accessing the Government Printing Office'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.

Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is 
found in Title 49 of the United States Code. Subtitle I, Section 106 
describes the authority of the FAA Administrator. Subtitle VII, 
Aviation Programs, describes in more detail the scope of the agency's 
authority.
    This rulemaking is promulgated under the authority described in 
Subtitle VII, Part A, Chapter 447, Section 44703, Airman Certificates, 
and Chapter 451, Section 45102, Alcohol and Controlled Substances 
Testing Programs. Under Section 44703, the FAA is authorized to issue 
an airman certificate to an individual who ``is qualified for, and 
physically able to perform the duties related to, the position to be 
authorized by the certificate.'' Under Section 45102, the FAA is 
charged with prescribing regulations to establish programs for drug and 
alcohol testing employees

[[Page 74899]]

performing safety-sensitive functions for air carriers and to take 
certificate or other action when an employee violates the testing 
regulations. This regulation is within the scope of the FAA's authority 
because it updates the existing regulations regarding airman 
certification of individuals who have violated the drug and alcohol 
testing regulations or who have otherwise demonstrated a substance 
abuse history through violation of State or local driving while 
intoxicated/driving under the influence laws. This rulemaking is a 
current example of FAA's continuing efforts to ensure that only drug- 
and alcohol-free individuals perform pilot duties.

Background

    The FAA is proposing to revise its regulations that apply to airmen 
who fail or refuse a drug or alcohol test. We proposed these changes to 
conform the FAA's regulations to changes in DOT's drug and alcohol 
testing regulations.
    In a final rule published on March 19, 1996 (61 FR 11256), the FAA 
comprehensively revised our medical standards in 14 CFR part 67. The 
revisions recognized that a verified positive drug test result on a 
test required under the DOT internal program or under the industry 
regulations of a DOT agency is a disqualifying medical condition known 
as ``substance abuse''. When the 1996 revisions were adopted, 
``substance abuse'' did not specifically include breath alcohol test 
results and refusals to submit to a test required by the DOT or a DOT 
agency.
    In 2000, DOT changed its regulations to address many issues 
including refusals to submit to testing. In its final rule, DOT 
substantially revised its ``Procedures for Transportation Workplace 
Drug and Alcohol Testing Programs'' (65 FR 79462, December 19, 2000), 
which are the procedural provisions underlying the drug and alcohol 
testing regulations of the DOT agencies. In the NPRM, DOT explained 
``adulteration and substitution are real and possibly increasing 
threats to the integrity of the Department's drug testing program, with 
the potential for increased safety risks if drug users succeed in 
frustrating the testing process'' (64 FR 69075, 69081, December 9, 
1999). In making its changes to the refusal provisions, DOT examined 
the FAA's experience with airman refusal cases and decided that 
regulatory changes were needed to address the increasing number of 
refusals and the inherent threat those refusals posed to transportation 
safety.
    On August 9, 2001, DOT further revised its refusal provisions (66 
FR 41944). In these final rules, DOT broadened the scope of what 
constitutes a refusal to test under the DOT agency regulations. We are 
proposing to revise several sections in our regulations that have been 
affected by the DOT revisions.

Section-by-Section Discussion of the Proposal

14 CFR 61.14, 63.12b, and 65.23

    The FAA proposes to revise the airman certification requirements in 
14 CFR 61.14, 63.12b, and 65.23 to include refusals to take a pre-
employment or return to duty test. Currently these sections only 
address refusals committed by an individual actually performing a 
safety-sensitive function for an employer regulated under 14 CFR part 
121, appendices I and J. An individual who takes a pre-employment or 
return to duty test is not actually performing a safety-sensitive 
function. The scope of refusals in 49 CFR part 40 clearly includes FAA-
required return to duty and some pre-employment tests. The FAA airman 
certificate regulations should similarly be clarified to include pre-
employment and return to duty tests that involve situations in which an 
airman intends to enter into a position to perform a safety-sensitive 
function.

14 CFR 67.107(b)(2), 67.207(b)(2), and 67.307(b)(2)

    The FAA is proposing to add medically disqualifying factors to the 
substance abuse provisions for the three classes of airman medical 
certificates. Currently, to obtain a medical certificate, a person must 
not have engaged in any substance abuse during the preceding 2 years. 
Under 14 CFR 67.107(b), 67.207(b), and 67.307(b), the term ``substance 
abuse'' is defined as any of the following three criteria:
    (1) Use of a substance, for the second time, in a situation in 
which that use was physically hazardous;
    (2) A verified positive drug test result on a test required by an 
internal program of DOT or a test required by any DOT agency; or
    (3) Misuse of a substance that in the Federal Air Surgeon's 
judgment makes or may make a person unable to safely exercise the 
privileges of the airmen certificate held.
    In the interest of aviation safety, we propose to add the following 
disqualifying factors to the definition of substance abuse in the 
regulation:
    (1) An alcohol test result of 0.04 or greater breath alcohol 
concentration (BAC) on an alcohol test required by DOT or a DOT agency; 
and
    (2) A refusal to submit to an alcohol or drug test required by DOT 
or a DOT agency.
    A discussion of these proposals follows.

Alcohol Test Results of 0.04 or Greater BAC

    The FAA has reviewed its medical qualification regulations because 
we continue to be concerned about the number of commercial pilots 
misusing alcohol, resulting in their potential impairment during the 
performance of commercial flight duties. Between 1998 through 2003, 
seventy-one commercial airline pilots were identified by DOT alcohol 
testing programs as having a BAC of 0.04 or greater. The misuse of 
alcohol affects the performance of a commercial pilot's duties, 
reflects an inability to control his or her use of alcohol, and is a 
direct threat to aviation safety. Consequently, the FAA proposes to 
revise 14 CFR part 67 to more comprehensively define substance abuse to 
medically disqualify any pilot who has received a confirmed alcohol 
test result of 0.04 or greater BAC on a test required by DOT or a DOT 
agency.
    The only individuals required to submit to an alcohol test are 
those who perform safety-related duties for the DOT or for an industry 
regulated by the DOT. In the aviation context, individuals subject to 
testing who hold an airman medical certificate typically include pilots 
and flight crewmembers of commercial air carriers and operations 
conducted under 14 CFR 135.1(c), and contract air traffic controllers. 
These individuals know they are subject to testing because of their 
work in a DOT-regulated industry and have a duty to operate safely. 
When these individuals misuse alcohol, resulting in a BAC of 0.04 or 
greater on a DOT test, they have shown a disregard for safety by their 
inability to control their use of alcohol. This behavior, in the 
opinion of the Federal Air Surgeon, constitutes substance abuse.
    This proposed revision is consistent with decisions issued by the 
National Transportation Safety Board (NTSB) holding that single events 
of alcohol misuse formed a legitimate basis for the Federal Air 
Surgeon's finding of substance abuse. In these cases, the Federal Air 
Surgeon made a finding that each airman was ``unable to safely perform 
the duties or exercise the privileges of the airman certificate'' 
because of substance abuse under 14 CFR 67.107(b)(3)(i), 
67.207(b)(3)(i), and 67.307(b)(3)(i). There have been at least two 
challenges to such findings. In both cases, the NTSB upheld the Federal 
Air Surgeon's finding of substance abuse in

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instances of only one alcohol event. In Administrator v. Taylor, NTSB 
Order No. EA-5003 (2002), the NTSB upheld ``the Federal Air Surgeon's 
interpretation that a single occurrence of substance abuse is 
sufficient under the regulation [to warrant revocation of his medical 
certificate].'' In Administrator v. Polinchock, NTSB Order No. EA-5023 
(2003), the NTSB upheld the revocation of an airman's medical 
certificate on the basis of ``the Federal Air Surgeon's determination 
that respondent's misuse of alcohol while on duty in a safety-sensitive 
position renders him unqualified.''
    Because a single event of alcohol misuse resulting in a BAC of 0.04 
or greater on a DOT test would affect medical qualifications, any 
person who holds or applies for an airman medical certificate would be 
affected by the proposed rule change. Thus, persons subject to testing 
who hold an airman medical certificate for reasons unrelated to their 
safety-related job would also be affected by the proposed revisions. 
For example, a mechanic who also holds a pilot certificate would be 
affected by the proposed revisions.

Refusals to Take DOT Tests

    In addition to pilots misusing alcohol, we have continued to see 
numbers of pilots who refuse to take FAA-required drug and alcohol 
tests. From 1997 through 2003, the FAA received reports that 89 
commercial airline pilots refused to take required FAA drug and alcohol 
tests. These refusals can include: walk-aways from the testing site; 
refusals to report for testing; committing violence against the testing 
personnel; substituting other liquids for the testing specimens; and 
adding adulterating substances to hide or destroy the presence of 
illegal drugs in the person's urine specimen. Whenever a person is 
required to submit to a DOT or a DOT agency drug or alcohol test and 
refuses to do so, that person willfully decides not to comply with a 
fundamental component of transportation safety.
    The FAA is proposing to further amend 14 CFR 67.107(b)(2), 
67.207(b)(2), and 67.307(b)(2) by adding to the description of 
``substance abuse'' any refusal to submit to a drug or alcohol test 
required by DOT or a DOT agency. If adopted, this change would result 
in the revocation or denial of the airman medical certificate of any 
person who refused to submit to the required testing.
    Adding refusals to 14 CFR part 67 is consistent with the language 
and intent of 49 CFR part 40, the DOT's drug and alcohol testing 
procedural regulations prescribed for use by all DOT-regulated 
industries required to conduct Federal testing. In 49 CFR part 40, the 
DOT and its agencies treat positive test results, alcohol violations, 
and refusals substantially the same. In the preamble to its final rule, 
DOT explained ``the consequences of a refusal are the same or more 
severe as for any other violation of DOT agency drug and alcohol 
regulations.'' (65 FR 79462, 79501, December 19, 2000). The FAA 
believes that it is appropriate to respond to a refusal to take a test 
required by DOT or a DOT agency as firmly and directly as a positive 
drug test result or an alcohol test result of 0.04 or greater BAC on a 
required test.
    The drug and alcohol testing regulations prescribed by DOT and 
incorporated into the regulations of the DOT agencies directly affect 
transportation safety because they prohibit the use of illegal drugs 
and misuse of alcohol by people who perform safety critical 
transportation functions. When regulated individuals refuse to take a 
test required by DOT or a DOT agency, they violate their duty to uphold 
transportation safety. Furthermore, their refusals are overt attempts 
to subvert the testing program.
    In applying the principles of 49 CFR part 40 to the 14 CFR part 67 
airman medical qualification standards, the FAA is proposing that a 
refusal to take a drug or alcohol test should be an immediately 
disqualifying factor, resulting in the denial or revocation of the 
airman medical certificate. An airman who refuses to submit to testing 
interferes with the ability of the testing process to detect the 
presence of an illegal drug or alcohol misuse. Such interference with 
the testing process may be intended to conceal prohibited drug or 
alcohol use. This conduct typifies a substance abuse problem and 
justifies the removal of an airman medical certificate until the airman 
can prove that he or she is rehabilitated and medically qualified to 
hold an airman medical certificate.
    The FAA acknowledges the proposed changes may result in the 
revocation of the airman medical certificate of an individual who is 
performing duties unrelated to his or her pilot certificate at the time 
of the refusal to test. For example, a mechanic who is required to be 
tested under FAA regulations and also who holds a private pilot 
certificate would be affected by this rule change. We are proposing 
that the airman medical certificate be revoked because this individual 
poses an unacceptable risk to transportation safety through his or her 
refusal to submit to testing required by his or her safety-related 
work.

14 CFR 91.17(a) and (c)

    The FAA proposes to amend 14 CFR 91.17 to recognize current breath 
alcohol testing technology. Currently, 14 CFR 91.17 only refers to 
blood alcohol testing. However, breath alcohol testing has become the 
more commonly administered method for determining alcohol 
concentration.
    When 14 CFR 91.17 was originally written, the prevalent technology 
for testing alcohol concentration was blood alcohol testing. In 1994, 
the DOT agencies issued regulations that required alcohol testing by 
breath for the transportation industries, including aviation. As 
breath-testing technology has improved and become more cost-efficient, 
law enforcement personnel have used this less invasive form of testing 
with increasing frequency. Breath alcohol tests and blood alcohol tests 
are two separate measures and are not exact equivalents. Therefore, 
each is reported separately as either breath alcohol concentration or 
blood alcohol concentration.
    We are proposing to amend section 91.17 to include breath alcohol 
concentration testing results of 0.04 or greater because of the greater 
use of breath testing technology by local law enforcement and because, 
since 1994, the DOT has set the violation level for breath alcohol 
concentrations at 0.04 or greater.
    Therefore, the FAA proposes to amend 14 CFR 91.17 to include both 
blood alcohol testing and breath alcohol testing to determine the 
concentration of alcohol in an individual's blood or breath, 
respectively.

14 CFR Part 121, Appendix I, Section II and Appendix J, Section I.D

    The FAA proposes to amend ``refusal to submit'' to a drug test to 
include engaging in conduct provided in 49 CFR 40.191. Similarly, we 
propose to amend ``refusal to submit'' to an alcohol test to include 
engaging in conduct provided in 49 CFR 40.261. We propose to change the 
specific wording in the FAA drug and alcohol testing definitions of 
``refusal to submit'' from ``conduct specified'' to ``conduct 
provided.''
    The FAA's drug and alcohol regulations cross-reference 49 CFR 
40.191 and 40.261 because these sections provide descriptions of kinds 
of conduct that constitute a ``refusal.'' However, there is no one 
definition of what commission or omission constitutes a refusal. A 
refusal involves conduct by the employee that interferes with testing. 
For example, a refusal includes failure to appear at the testing site 
for a test other than pre-

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employment, failure to remain at the testing site, adulterating one's 
urine sample, substituting a specimen, behaving violently or 
uncooperatively during the collection process, not remaining available 
for a post-accident test, or failing to comply with steps required 
during the administration of the test. This is not an all-inclusive 
list of conduct that would constitute a finding of refusal. We invite 
public comment as to whether ``conduct provided'' more effectively 
addresses the expansiveness of conduct that would constitute a refusal 
under 49 CFR part 40.
    We propose to clarify the refusal definition to include post-
accident alcohol testing because the employee has a duty under 14 CFR 
part 121, appendix J, Section III.B.3 ``to remain readily available for 
such testing.'' Failure to remain readily available for post-accident 
testing, even in the absence of individualized notice, constitutes a 
refusal. We also propose to drop the word ``covered'' from the 
definition of ``Refusal to submit'' in 14 CFR part 121, appendix J, 
section I.D., as a non-substantive editorial change.

14 CFR Part 121, Appendix I, VI.D.2 and Appendix J, Section V.D.2

    In 49 CFR 40.191 and 40.261, DOT clarified the scope of what 
constitutes a ``refusal'' to include return to duty testing and 
specific situations in pre-employment testing. In response, we propose 
to require employers to notify the FAA of refusals to take a return to 
duty or pre-employment drug or alcohol test. Specifically, we propose 
to remove 14 CFR part 121, appendix I, section VI.D.2 and appendix J, 
section V.D.2 because both sections tell employers not to inform the 
FAA when return to duty or pre-employment refusals occurred.

14 CFR Part 121, Appendix I, Sections VII.C.1, 2, 3, 4, and 6

    The FAA proposes to amend 14 CFR part 121, appendix I, section 
VII.C.1. to change the time frame for the Medical Review Officer (MRO) 
to submit information to the Federal Air Surgeon regarding part 67 
certificate holders. Specifically, we would change the reporting 
requirement from 12 working days from the date the MRO verifies the 
positive drug test result to 2 working days to be consistent with the 
alcohol reporting requirement. We are also proposing some editorial 
changes for consistency and clarity.
    The FAA is proposing to amend 14 CFR part 121, appendix I, section 
VII.C.2 to clarify that a substance abuse professional (SAP) must not 
recommend that an employer return to duty an individual who has refused 
to take a drug test for a position that requires an airman medical 
certificate. Only after the Federal Air Surgeon has issued the 
individual a new airman medical certificate can the SAP recommend to 
the employer that the individual be returned to duty. This requirement 
already exists for the airman medical certificate holder who has a 
positive drug test result.
    In 14 CFR part 121, appendix I, section VII.C.3, for consistency 
with appendix J, we propose to change the time for the employer to 
forward SAP reports to the Federal Air Surgeon from 12 working days to 
2 working days of receipt of the SAP report.
    Section VII.C.4 of 14 CFR part 121, appendix I requires employers 
to ensure that an employee required to hold a part 67 certificate is 
not returned to the performance of a safety-sensitive duty until the 
employee has received an airman medical certificate. Because the airman 
may have retained a previously issued medical certificate, we propose 
to clarify that the operative medical certificate must be issued after 
the date of the verified positive drug test result or refusal to test 
before the employee can be returned to the performance of a safety 
sensitive duty.
    We propose to add 14 CFR part 121, appendix I section VII.C.6 to 
require MROs, SAPs, and employers to retain a copy of any report they 
forward to the Federal Air Surgeon under this section. This record 
retention requirement already exists in 14 CFR part 121, appendix J, 
section IV.A.2.(a)(2).

14 CFR Part 121, Appendix J, Section IV.A.2.(a)(2)

    We propose to add ``refusals to submit to testing'' to the existing 
record retention requirements.

4 CFR 65.46a(f), 121.458(f), and 135.253(f)

    In a final rule, issued on December 19, 2000, (65 FR 79462), DOT 
broadened the scope of what is considered to be a refusal to test. In 
49 CFR 40.191 and 40.261, the DOT included pre-employment tests and 
return-to-duty tests under the new refusal provisions. The DOT also 
clarified the description of refusal to test by explicitly including 
adulterations and substitutions of specimens within the refusal 
provisions. On August 9, 2001, (66 FR 41944), DOT further revised the 
refusal provisions of 49 CFR 40.191 and 40.261 to clarify the scope of 
pre-employment refusals.
    We propose to amend 14 CFR 65.46a(f), 121.458(f), and 135.253(f) 
because these provisions currently describe a ``refusal to submit to a 
required alcohol test'' as including post-accident, random, reasonable 
suspicion, and follow-up tests. Because 49 CFR part 40 includes all 
types of required tests, we propose a minor change to these sections to 
be consistent. Instead of listing the types of tests included as 
refusals, we propose substituting the word ``any'' in place of the list 
of required tests.

Paperwork Reduction Act

    The FAA described the information collection requirements 
associated with reporting the results of drug and alcohol testing in 
OMB control number 2120-0535 (current expiration date is December 31, 
2005). This NPRM would add the requirement to report refusals to take 
return-to-duty and pre-employment tests. This is an extremely small 
additional burden because these reports are already generated and sent 
to the employer under 49 CFR part 40 and 14 CFR part 121, appendices I 
and J, and are accounted for in OMB control number 2125-0529. Under the 
new requirement, employers would merely send these already existing 
reports on to the FAA, resulting in a total annual burden of fewer than 
2 hours across the industry. Specifically, we estimate the annual 
burden associated with this NPRM to be 1.75 hours to the private 
sector, costing $35.00. The annual burden to the Federal Government 
would be 7 hours, costing $138.95. Because this burden is extremely 
small, we will not change Paperwork Burden Submission OMB control 
number 2120-0535 at this time, but we will include the extra 1.75 hours 
in the next renewal in 2005.

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 (SARPs) to the maximum extent practicable. SARPs 
do not address disqualification of an airman based on a refusal to take 
a required drug or alcohol test.

Executive Order 12866 and DOT Regulatory Policies and Procedures

    Executive Order 12866, Regulatory Planning and Review, directs the 
FAA to assess both the costs and the benefits of a regulatory change. 
We are not allowed to propose or adopt a regulation unless we make a 
reasoned determination that the benefits of the intended regulation 
justify the costs. Our assessment of this rulemaking indicates that its 
economic impact is minimal. This action imposes minimal

[[Page 74902]]

copying, mailing, and faxing costs on small entities subject to this 
rule. Because the costs and benefits of this action do not make it a 
``significant regulatory action'' as defined in the Order, we have not 
prepared a ``regulatory evaluation,'' which is the written cost/benefit 
analysis ordinarily required for all rulemaking under the DOT 
Regulatory Policies and Procedures. We do not need to do a full 
evaluation where the economic impact of a rule is minimal.

Economic Assessment, Regulatory Flexibility Determination, 
International Trade Impact Assessment, and Unfunded Mandates Assessment

    Proposed changes to Federal regulations must undergo several 
economic analyses. First, Executive Order 12866 directs each Federal 
agency proposing or adopting a regulation do so only upon a reasoned 
determination that the benefits of the intended regulation justify its 
cost. Second, the Regulatory Flexibility Act of 1980 requires agencies 
to analyze the economic impact of regulatory changes on small entities. 
Third, the Trade Agreements Act (19 U.S.C. 2531-2533) prohibits 
agencies from setting standards that create unnecessary obstacles to 
the foreign commerce of the United States. In developing U.S. 
standards, this Trade Act requires agencies to consider international 
standards and, where appropriate, that they be the basis for U.S. 
standards. Fourth, 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 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 a ``significant regulatory action.'' The FAA currently uses 
an inflation-adjusted value of $120.7 million in lieu of $100 million.
    In conducting these analyses, FAA has determined this rule: (1) Has 
benefits that justify its costs, is not a ``significant regulatory 
action'' as defined in section 3(f) of Executive Order 12866 and is not 
``significant'' as defined in DOT's Regulatory Policies and Procedures; 
(2) will not have a significant economic impact on a substantial number 
of small entities; (3) will not reduce barriers to international trade; 
and does not impose an unfunded mandate on state, local, or tribal 
governments, or on the private sector.
    However, for regulations with an expected minimal impact the above-
specified analyses are not required. The Department of Transportation 
Order DOT 2100.5 prescribes policies and procedures for simplification, 
analysis, and review of regulations. If it is determined that the 
expected impact is so minimal that the proposal does not warrant a full 
evaluation, a statement to that effect and the basis for it is included 
in proposed regulation.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (RFA) directs the FAA to fit 
regulatory requirements to the scale of the business, organizations, 
and governmental jurisdictions subject to the regulation. We are 
required to determine whether a proposed or final action will have a 
``significant economic impact on a substantial number of small 
entities'' as they are defined in the Act. If we find that the action 
will have a significant impact, we must do a ``regulatory flexibility 
analysis.''
    We certify that this action will not have a significant economic 
impact on a substantial number of small entities.

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 considered 
unnecessary obstacles. The statute also requires consideration of 
international standards and, where appropriate, that they be the basis 
for U.S. standards. In accordance with the above statute and policy, 
the FAA has assessed the potential effect of this NPRM rule to be 
minimal and therefore has determined that this proposed rule would not 
result in an impact on international trade by companies doing business 
in or with the United States.

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.'' The FAA currently 
uses an inflation-adjusted value of $120.7 million in lieu of $100 
million.
    This NPRM does not contain such a mandate. The requirements of 
Title II of the Act 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, and therefore would not have federalism implications.

Plain English

    Executive Order 12866 (58 FR 51735, Oct. 4, 1993) requires each 
agency to write regulations that are simple and easy to understand. We 
invite your comments on how to make these proposed regulations easier 
to understand, including answers to questions such as the following:
     Are the requirements in the proposed regulations clearly 
stated?
     Do the proposed regulations contain unnecessary technical 
language or jargon that interferes with their clarity?
     Would the regulations be easier to understand if they were 
divided into more (but shorter) sections?
     Is the description in the preamble helpful in 
understanding the proposed regulations?
    Please send your comments to the address specified in the ADDRESSES 
section.

Environmental Analysis

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

List of Subjects

14 CFR Part 61

    Aircraft, Airmen, Alcohol abuse, Aviation safety, Drug abuse, 
Recreation and recreation areas, Reporting and recordkeeping 
requirements, Security measures, Teachers.

14 CFR Part 63

    Aircraft, Airmen, Alcohol abuse, Aviation safety, Drug abuse, 
Navigation (air), Reporting and recordkeeping requirements, Security 
Measures.

[[Page 74903]]

14 CFR Part 65

    Air traffic controllers, Aircraft, Airmen, Airports, Alcohol abuse, 
Aviation safety, Drug abuse, Reporting and recordkeeping requirements, 
Security measures.

14 CFR Part 67

    Airmen, Authority delegation (Government agencies), Health, 
Reporting and record keeping requirements.

14 CFR Part 91

    Afghanistan, Agriculture, Air traffic control, Aircraft, Airmen, 
Airports, Aviation safety, Canada, Cuba, Ethiopia, Freight, Mexico, 
Noise control, Political candidates, Reporting and recordkeeping 
requirements, Yugoslavia.

14 CFR Part 121

    Air carriers, Aircraft, Airmen, Alcohol abuse, Aviation safety, 
Charter flights, Drug abuse, Drug testing, Reporting and recordkeeping 
requirements, Safety, Transportation.

14 CFR Part 135

    Air taxis, Aircraft, Airmen, Alcohol abuse, Aviation safety, Drug 
abuse, Drug testing, Reporting and recordkeeping requirements.

The Proposed Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration proposes to amend parts 61, 63, 65, 67, 91, 121, and 135 
of Title 14, Code of Federal Regulations, as follows:

PART 61--GENERAL

    1. The authority citation for part 61 continues to read as follows:


    Authority: 49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709-
44711, 45102-45103, 45301-45302.
    2. Revise Sec.  61.14(a) to read as follows:


Sec.  61.14  Refusal to submit to a drug or alcohol test.

    (a) This section applies to an individual who holds a certificate 
under this part and is subject to the types of testing required under 
appendix I to part 121 or appendix J to part 121 of this chapter.
* * * * *

PART 63--CERTIFICATION: FLIGHT CREWMEMBERS OTHER THAN PILOTS

    3. The authority citation for part 63 continues to read as follows:

    Authority:  49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709-
44711, 45102-45103, 45301-45302.

    4. Revise Sec.  63.12b(a) to read as follows:


Sec.  63.12b  Refusal to submit to a drug or alcohol test.

    (a) This section applies to an individual who holds a certificate 
under this part and is subject to the types of testing required under 
appendix I to part 121 or appendix J to part 121 of this chapter.
* * * * *

PART 65--CERTIFICATION: AIRMEN OTHER THAN FLIGHT CREWMEMBERS

    5. The authority citation for part 65 continues to read as follows:

    Authority:  49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709-
44711, 45102-45103, 45301-45302.

    6. Revise Sec.  65.23(a) to read as follows:


Sec.  65.23  Refusal to submit to a drug or alcohol test.

    (a) General. This section applies to an individual who holds a 
certificate under this part and is subject to the types of testing 
required under appendix I to part 121 or appendix J to part 121 of this 
chapter.
* * * * *
    7. Revise Sec.  65.46a(f) to read as follows:


Sec.  65.46a  Misuse of alcohol.

* * * * *
    (f) Refusal to submit to a required alcohol test. A covered 
employee must not refuse to submit to any alcohol test required under 
appendix J to part 121 of this chapter. An employer must not permit an 
employee who refuses to submit to such a test to perform or continue to 
perform safety-sensitive functions.

PART 67--MEDICAL STANDARDS AND CERTIFICATION

    8. The authority citation for part 67 continues to read as follows:

    Authority:  49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709-
44711, 45102-45103, 45301-45303.

    9. Revise Sec.  67.107(b)(2) to read as follows:


Sec.  67.107  Mental.

* * * * *
    (b) * * *
    (2) A verified positive drug test result, an alcohol test result of 
0.04 or greater alcohol concentration, or a refusal to submit to a drug 
or alcohol test required by the U.S. Department of Transportation or an 
agency of the U.S. Department of Transportation; or
* * * * *
    10. Revise Sec.  67.207(b)(2) to read as follows:


Sec.  67.207  Mental.

* * * * *
    (b) * * *
    (2) A verified positive drug test result, an alcohol test result of 
0.04 or greater alcohol concentration, or a refusal to submit to a drug 
or alcohol test required by the U.S. Department of Transportation or an 
agency of the U.S. Department of Transportation; or
* * * * *
    11. Revise Sec.  67.307(b)(2) to read as follows:


Sec.  67.307  Mental.

* * * * *
    (b) * * *
    (2) A verified positive drug test result, an alcohol test result of 
0.04 or greater alcohol concentration, or a refusal to submit to a drug 
or alcohol test required by the U.S. Department of Transportation or an 
agency of the U.S. Department of Transportation; or
* * * * *

PART 91--GENERAL OPERATING AND FLIGHT RULES

    12. The authority citation for part 91 continues to read as 
follows:

    Authority:  49 U.S.C. 106(g), 1155, 40103, 40113, 40120, 44101, 
44111, 44701, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 
46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-47531, 
articles 12 and 29 of the Convention on International Civil Aviation 
(61 stat. 1180).

    13. Revise Sec.  91.17 paragraphs (a)(4), (c)(1) introductory text 
and (c)(2) to read as follows:


Sec.  91.17  Alcohol or drugs.

    (a) * * *
* * * * *
    (4) While having an alcohol concentration of 0.04 or greater in a 
blood or breath specimen. Alcohol concentration means grams of alcohol 
per deciliter of blood or grams of alcohol per 210 liters of breath.
* * * * *
    (c) * * *
    (1) On request of a law enforcement officer, submit to a test to 
indicate the alcohol concentration in the blood or breath, when--
* * * * *
    (2) Whenever the Administrator has a reasonable basis to believe 
that a person may have violated paragraph (a)(1), (a)(2), or (a)(4) of 
this section, on request of the Administrator, that person must furnish 
to the Administrator the results, or authorize any clinic, hospital, or 
doctor, or other person to release to the

[[Page 74904]]

Administrator, the results of each test taken within 4 hours after 
acting or attempting to act as a crewmember that indicates an alcohol 
concentration in the blood or breath specimen.
* * * * *

PART 121--OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL 
OPERATIONS

    14. The authority citation for part 121 continues to read as 
follows:

    Authority: 49 U.S.C. 106(g), 40113, 40119, 41706, 44101, 44701-
44703, 44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-
44904, 44912, 45101-45105, 46105.

    15. Revise Sec.  121.458(f) to read as follows:


Sec.  121.458  Misuse of alcohol.

* * * * *
    (f) Refusal to submit to a required alcohol test. A covered 
employee must not refuse to submit to any alcohol test required under 
appendix J to this part. A certificate holder must not permit an 
employee who refuses to submit to such a test to perform or continue to 
perform safety-sensitive functions.
    16. Amend section II of Appendix I to part 121 by revising the 
definition of ``refusal to submit'' as follows:

Appendix I to Part 121--Drug Testing Program

* * * * *

II. Definitions.

* * * * *
    Refusal to submit means that an employee engages in conduct 
provided in 49 CFR 40.191.
* * * * *
    17. Amend section VI of Appendix I to part 121 by revising 
paragraph D.1 as follows and removing and reserving paragraph D.2.

VI. Administrative and Other Matters

* * * * *
    D. Refusal to Submit to Testing. 1. Each employer must notify 
the FAA within 2 working days of any employee who holds a 
certificate issued under part 61, part 63, or part 65 of this 
chapter who has refused to submit to a drug test required under this 
appendix. Notification must be sent to: Federal Aviation 
Administration, Office of Aerospace Medicine, Drug Abatement 
Division (AAM-800), 800 Independence Avenue, SW., Washington, DC 
20591.
* * * * *
    18. Amend section VII of Appendix I by revising paragraphs C.1, 
C.2, C.3, C.4 and adding paragraph C.6 to read as follows:

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 or 
refusal to submit to a test, the MRO must ask and the individual 
must answer whether he or she holds or would be required to hold an 
airman medical certificate issued under 14 CFR part 67 to perform a 
safety-sensitive function for the employer. 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 2 working days 
after verifying a positive drug test result.
    2. During the SAP interview required for a positive test result 
or a refusal to submit to a test, the SAP must ask and the 
individual must answer whether he or she holds or would be required 
to hold an airman medical certificate issued under 14 CFR part 67 to 
perform a safety-sensitive function for the employer. If the 
individual answers in the affirmative, before the SAP can recommend 
to the employer that the individual be returned to a safety-
sensitive position, the individual must be issued an airman medical 
certificate from the Federal Air Surgeon dated after the verified 
positive drug test result date or refusal to test date. The receipt 
of an airman medical certificate does not alter any obligations 
otherwise required by 49 CFR part 40 or this appendix.
    3. An employer must forward to the Federal Air Surgeon within 2 
working days of receipt, copies of all reports provided to the 
employer by a SAP regarding the following:
    (a) An individual who the MRO has reported to the Federal Air 
Surgeon under section VII.C.1 of this appendix; or
    (b) An individual who the employer has reported to the Federal 
Air Surgeon under section VI.D of this appendix.
    4. The employer must not permit an employee who is required to 
hold an airman medical certificate under 14 CFR part 67 to perform a 
safety-sensitive duty to resume that duty until the employee has:
    (a) Been issued an airman medical certificate from the Federal 
Air Surgeon after the date of the verified positive drug test result 
or refusal to test; and
    (b) Met the return to duty requirements in accordance with 49 
CFR part 40.
* * * * *
    6. MROs, SAPs, and employers who send reports to the Federal Air 
Surgeon must keep a copy of each report for 5 years.

* * * * *
    19. Amend section I.D. of Appendix J to part 121 by revising the 
definition of ``refusal to submit'' as follows:

Appendix J to Part 121--Alcohol Misuse Prevention Program

I. General

* * * * *
    D. Definitions. * * *
* * * * *
    Refusal to submit means that an employee has engaged in conduct 
provided in 49 CFR 40.261, or has failed to remain readily available 
for post-accident testing as required by this appendix.
* * * * *
    20. Amend section IV of Appendix J to part 121 by revising 
paragraph A.2(a)(2) to read as follows:

IV. Handling of Test Results, Record Retention, and Confidentiality

* * * * *
    2. Period of Retention.
    (a) * * *
* * * * *
    (2) Records of notifications to the Federal Air Surgeon of 
refusals to submit to testing and violations of the alcohol misuse 
prohibitions in this chapter by covered employees who hold medical 
certificates issued under part 67 of this chapter.
* * * * *

PART 135--OPERATING REQUIREMENTS: COMMUTER AND ON-DEMAND OPERATIONS 
AND RULES GOVERNING PERSONS ON BOARD SUCH AIRCRAFT

    21. The authority citation for part 135 is amended to read as 
follows:

    Authority: 49 U.S.C. 106(g), 41706, 40113, 44701-44702, 44705, 
44709, 44711-44713, 44715-44717, 44722, 45101-45105.

    22. Revise Sec.  135.253(f) to read as follows:


Sec.  135.253  Misuse of alcohol.

* * * * *
    (f) Refusal to submit to a required alcohol test. A covered 
employee must not refuse to submit to any alcohol test required under 
appendix J to part 121 of this chapter. An operator or certificate 
holder must not permit an employee who refuses to submit to such a test 
to perform or continue to perform safety-sensitive functions.

    Issued in Washington, DC, on December 2, 2004.
Jon L. Jordan,
Federal Air Surgeon.
[FR Doc. 04-27216 Filed 12-13-04; 8:45 am]
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