[Federal Register Volume 71, Number 65 (Wednesday, April 5, 2006)]
[Rules and Regulations]
[Pages 17000-17003]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3277]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 121

[Docket No. FAA-2002-11301; Amendment No. 121-324]
RIN 2120-AH14


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

AGENCY: Federal Aviation Administration (FAA); DOT.

ACTION: Final rule; delay of compliance date.

-----------------------------------------------------------------------

SUMMARY: The FAA is delaying the compliance date for the final rule 
clarifying that contractors, including subcontractors at any tier, must 
be subject to drug and alcohol testing. This action is necessary 
because it has come to our attention that some original equipment 
manufacturers (OEMs) and other entities may be confused regarding 
whether they are performing maintenance or preventive maintenance 
duties subject to drug and alcohol testing, or manufacturing duties not 
subject to testing. The effective date of April 10, 2006, will remain 
the same, but this action extends the compliance date until October 10, 
2006, which gives OEMs and others sufficient time to determine what 
work is subject to drug and alcohol testing.

DATES: The effective date of the final rule published at 71 FR 1666 
(January 10, 2006) remains April 10, 2006, but the compliance date is 
delayed until October 10, 2006.

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

SUPPLEMENTARY INFORMATION:

Availability of Final Rule

    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 FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies/; or
    (3) Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html.
    You can also get a copy by sending 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.

Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires FAA to comply with small entity requests for information 
or advice about compliance with statutes and regulations within its 
jurisdiction. Therefore, any small entity that has a question regarding 
this document may contact their local FAA official, or the

[[Page 17001]]

person listed under FOR FURTHER INFORMATION CONTACT. You can find out 
more about SBRFA on the Internet at our site, http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

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 451, section 45102, Alcohol and 
Controlled Substances Testing Programs. Under section 45102, the FAA is 
charged with prescribing regulations to establish programs for drug and 
alcohol testing of employees 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 will provide more time for entities 
opting to conduct drug and alcohol testing and to identify which 
employees are performing a safety-sensitive function for a regulated 
employer by contract. This rulemaking is a current example of FAA's 
continuing effort to ensure that only drug- and alcohol-free 
individuals perform safety-sensitive functions for regulated employers.

The Final Rule

    The FAA issued a final rule to clarify that each person who 
performs a safety-sensitive function for a regulated employer by 
contract, including by subcontract at any tier, is subject to testing 
(71 FR 1666, January 10, 2006). The rulemaking clarified that there is 
no differentiation between levels of contractors when safety-sensitive 
work is being performed.
    Since the inception of the drug and alcohol testing regulations in 
1988 and 1994, respectively, (53 FR 47024, November 11, 1988; 59 FR 
42922, August 19, 1994), individuals performing maintenance and 
preventive maintenance for air carriers operating under part 121, 135, 
or section 135.1(c) operators have been required to be subject to drug 
and alcohol testing. Contractors, including subcontractors, have been 
filing their drug and alcohol testing programs with the FAA since the 
inception of the regulations. It has long been recognized by the 
regulated air carrier employers and their contractors/subcontractors 
that drug and alcohol testing has been required for maintenance and 
preventive maintenance duties. Approximately 4,300 contractors, 
including certificated repair stations and companies without 
certificates, have filed their drug and alcohol testing programs and 
more than 3,000 of these contractors have been inspected by the Drug 
Abatement Division inspectors during the last 15 years.
    Although it has been clear that outsourcing the maintenance 
services does not relieve the air carriers of their obligations to 
require testing of the individuals performing safety-sensitive work, 
some individuals performing safety-sensitive functions by contract may 
not have been subject to testing. It has come to our attention that 
some original equipment manufacturers (OEMs) and other entities may be 
confused as to whether they are performing manufacturing or maintenance 
and preventive maintenance duties. This distinction is important 
because employees engaged solely in manufacturing are not subject to 
drug and alcohol testing, but those performing maintenance or 
preventive maintenance are subject to drug and alcohol testing. As we 
had done in 1988, when entities began testing for the first time, we 
have decided to provide the contractors, including subcontractors at 
any tier, extra time for complying with the drug and alcohol testing 
regulations for the first time.
    Also, on March 8, 2006, the FAA received a request to extend the 
compliance date for the January 10, 2006, final rule. The petition was 
submitted jointly by nine associations, including the Regional Airline 
Association, and the Air Transport Association of America. This 
petition requested the FAA to extend the effective date ``until 6 
months after the issuance of the appropriate guidance by the FAA.'' 
Specifically, the petition requested guidance on ``what constitutes 
maintenance'' and how higher tier contractors and employers can ensure 
compliance by lower tier entities.
    In response to the petition and in consideration of other industry 
communications, we have decided to delay the compliance date for the 
clarification regarding subcontractors for 6 months, until October 10, 
2006. We believe that the extension of the compliance date provided in 
this final rule will give OEMs and other entities that are not already 
conducting testing additional time to determine if their work is 
subject to drug and alcohol testing. The extra time will also give 
these entities an opportunity to decide whether to conduct their own 
testing programs or to make arrangements to have their employees 
covered under the testing programs of the employers with whom they 
contract. In response to the request for guidance, we will soon provide 
more substantive guidance on a range of subjects such as cleaning of 
aircraft, entertainment system components, deicing, and decorative 
plating. In addition, we will provide a contact person to whom industry 
can direct questions concerning maintenance and preventative 
maintenance.

Paperwork Reduction Act

    There are no new requirements for information collection associated 
with this amendment because this is only an extension of time for 
entities complying for the first time with the drug and alcohol testing 
regulations.

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 proposed regulations.

Good Cause for ``No Notice''

    Sections 553(b)(3)(B) and 553(d)(3) of the Administrative 
Procedures Act (APA) (5 U.S.C. Sections 553(b)(3)(B) and 553(d)(3)) 
authorize agencies to dispense with certain notice procedures for rules 
when they find ``good cause'' to do so. Under section 553(b)(3)(B), the 
requirements of notice and opportunity for comment do not apply when 
the agency for good cause finds that those procedures are 
``impracticable, unnecessary, or contrary to the public interest.'' The 
FAA finds that notice and public comment on this final rule are 
impracticable. For the APA, ``impracticable'' means that, if notice and 
comment procedures were followed, they would defeat the purpose of the 
rule. As explained previously, the purpose of this final rule is to 
extend the compliance date for subcontractors performing safety-
sensitive functions for a regulated employer to be covered under a drug 
and alcohol testing program. The effective date of this clarification 
remains April 10, 2006. This final rule extends the compliance date 
until October 10, 2006. Coordinating and issuing rulemaking documents 
will take time under current procedures. We cannot issue a notice,

[[Page 17002]]

receive comments, and issue a final rule before the current effective 
date. OEMs and other entities that had not previously chosen to 
implement drug and alcohol testing may need additional time before the 
compliance date to identify which employees are performing maintenance 
or preventive maintenance duties and to implement their drug and 
alcohol testing programs for these employees. Any delay in issuing this 
final rule could cause OEMs and other entities confusion if they try to 
establish drug and alcohol testing programs too quickly and for the 
wrong employees. Therefore, it is ``impracticable'' to provide notice 
and opportunity to comment.

Good Cause for Immediate Adoption

    In accordance with 5 U.S.C. 553(b)(3)(B), FAA finds good cause for 
issuing this rule without prior notice and comment. Seeking public 
comment is impracticable, unnecessary, and contrary to the public 
interest. This delay of compliance date will give OEMs and other 
entities sufficient time to implement their drug and alcohol testing 
programs for the first time or to become covered under an employer's 
drug and alcohol testing program, in accordance with 14 CFR part 121, 
appendices I and J. Given the imminence of the effective date, seeking 
prior public comments on this temporary delay would have been 
impracticable, as well as contrary to the public interest in the 
orderly promulgation and implementation of this rule.

Executive Order 12866 and DOT Regulatory Policies and Procedures

    Executive Order 12866, Regulatory Planning and Review, directs the 
FAA to assess both he costs and 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 its 
costs. Our assessment of this proposal indicates that its economic 
impact is minimal. Since its costs and benefits do not make it a 
``significant regulatory action'' as defined in the Order, we have not 
prepared a ``regulatory impact analysis.'' Similarly, we have not 
prepared a ``regulatory evaluation,'' which is the written cost/benefit 
analysis ordinarily required for all rulemaking proposals under the DOT 
Regulatory and Policies and Procedures. We do not need to do the latter 
analysis where the economic impact of a proposal is minimal.

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

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order 12866 directs each Federal agency to 
propose or adopt a regulation only if the agency makes a reasoned 
determination that the benefits of the intended regulation justify its 
costs. 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. section 2531-2533) bans 
agencies from setting standards that create unnecessary obstacles to 
the foreign commerce of the United States. In developing U.S. 
standards, the Trade Act requires agencies to consider international 
standards. Where suitable, the Trade Act directs agencies to use those 
international standards as the basis of U.S. standards. Fourth, the 
Unfunded Mandates Reform Act of 1995 requires agencies to prepare a 
written assessment of the costs, benefits, and other effects of 
proposed or final rules. This requirement applies only to rules that 
include a Federal mandate on State, local, or tribal governments, 
likely to result in a total expenditure of $100 million or more in any 
one year (adjusted for inflation). In conducting these analyses, the 
FAA determines that this rule:
    (1) Has benefits which justify its costs and is not a 
``'significant regulatory action''' as defined in the Executive Order 
and as defined in DOT's Regulatory Policies and Procedures;
    (2) Will not have a significant impact on a substantial number of 
small entities;
    (3) Has minimal effects on international trade; and
    (4) Does not impose an unfunded mandate on State, local, or tribal 
governments or on the private sector.

Economic Summary

    This rule extends the compliance date for OEMs and other entities 
to establish their drug and alcohol testing programs or to join the 
testing programs of the employers for which they are performing safety-
sensitive work. This action is necessary because some OEMs and other 
entities who had not previously chosen to implement drug and alcohol 
testing may be confused about which employees are subject to drug and 
alcohol testing. Such contractors, including subcontractors at any 
tier, may not have separated their manufacturing from their repair 
duties. These contractors may need additional time before the 
compliance date to identify which employees are performing maintenance 
or preventive maintenance duties. These contractors will need to 
implement their drug and alcohol testing programs for these employees 
or to join the employees in the testing programs of the employers for 
which they are performing safety-sensitive work.
    Thus, delaying the compliance date for the rule by 6 months will 
give the regulated entities additional time to determine which 
employees need to be covered as well as the best options for testing. 
The FAA believes that this extension will benefit these entities by 
helping to eliminate any confusion and allowing them to make more 
informed choices, potentially leading to lower implementation costs.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act (RFA) of 1980, 5 U.S.C. 601-612, 
establishes ``as a principle of regulatory issuance that agencies shall 
endeavor, consistent with the objective of the rule and of applicable 
statutes, to fit regulatory and informational requirements to the scale 
of the business, organizations, and governmental jurisdictions subject 
to the regulation.'' To achieve that principle, the RFA requires 
agencies to solicit and consider flexible regulatory proposals to 
explain the rationale for their actions. The RFA covers a wide-range of 
small entities, including small businesses, not-for-profit 
organizations, and small governmental jurisdictions.
    Agencies must perform a review to determine whether a proposed or 
final rule will have a significant economic impact on a substantial 
number of small entities. If the agency determines that it will, the 
agency must prepare a regulatory flexibility analysis as described in 
the RFA.
    However, if an agency determines that a proposed or final rule is 
not expected to have a significant economic impact on a substantial 
number of small entities, section 605(b) of the RFA provides that the 
head of the agency may so certify and a regulatory flexibility analysis 
is not required. The certification must include a statement providing 
the factual basis for this determination, and the reasoning should be 
clear.
    This final rule merely extends the compliance date for the 
subcontractor clarification final rule. Its economic impact is minimal. 
Therefore, as the Administrator of the FAA, I certify that this action 
will not have a significant economic impact on a substantial number of 
small entities.

[[Page 17003]]

Trade Impact Assessment

    The Trade Agreements 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 final rule and determined that it has only a 
domestic impact.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 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 a $100 million or more expenditure (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 final rule does not contain such a mandate. Therefore, the 
requirements of Title II of the Unfunded Mandates Reform Act of 1995 do 
not apply.

Executive Order 13132, Federalism

    The FAA has analyzed this final rule under the principles and 
criteria of Executive Order 13132, Federalism. We determined that this 
action will not have a substantial direct effect on the States, or the 
relationship between the national Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. Therefore, we have determined that this final rule does not 
have federalism implications.

Environmental Analysis

    FAA Order 1050.1E identifies FAA actions that are categorically 
excluded from preparation of an environmental assessment or 
environmental impact statement under the National Environmental Policy 
Act in the absence of extraordinary circumstances. The FAA has 
determined this proposed rulemaking action qualifies for the 
categorical exclusion identified in paragraph 312(d) and involves no 
extraordinary circumstances.

Regulations That Significantly Affect Energy Supply, Distribution, or 
Use

    The FAA has analyzed this final rule under Executive Order 13211, 
Actions Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use (66 FR 28355, May 18, 2001). We have determined 
that it is not a ``significant energy action'' under the executive 
order because it is not a ``significant regulatory action'' under 
Executive Order 12866, and it is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy.

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 Amendment

    For the reasons set forth above, the Federal Aviation 
Administration is delaying the compliance date for the final rule 
published January 10, 2006 (71 FR 1666) from April 10, 2006 until 
October 10, 2006. The effective date of the January 10, 2006, final 
rule remains April 10, 2006.

    Issued in Washington, DC, on March 31, 2006.
Marion C. Blakey,
Administrator.
[FR Doc. 06-3277 Filed 3-31-06; 3:16 pm]
BILLING CODE 4910-13-P