Monday November 21, 1988 Part III Department of Transportation Federal Aviation Administration 14 CFR Part 61 et al. Anti-Drug Program for Personnel Engaged In Specified Aviation Activities; Final Rule 47023 47024 Federal Register / Vol. 53, No. 224 /, Monday, November 21, 1988 / Rules and Regulations DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Parts 61, 63, 65, 121, and 135 [Docket No. 25148; Amdt. Nos. 61-81,6325, 65-32, 121-201 and 135-28] RN 2120-AC33 Anti-Drug Program for Personnel Engaged In Specified Aviation Activities AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. SUMMARY: This final rule sets forth regulations to require domestic and supplemental air carriers, commercial operators of large aircraft, air taxi and commuter operators, certain commercial operators, certain contractors to these operators, and air traffic control facilities not operated by the FAA or the U.S. military to have an anti-drug program for employees who perform sensitive safety- or security-related functions. A special provision has been added to the rule that provides that the final rule does not apply to any person where compliance with the final rule would violate the domestic law or policy of another country. Testing under the rule will be conducted by an employer prior to employment, periodically, randomly, after an accident, based on reasonable cause, and after an employee returns to duty to perform a sensitive safety- or security-related function for an employer. The final rule also will require that an employer provide EAP education and training services to employees and supervisors. The rule is necessary to prohibit an employee from performing a sensitive safety- or security-related function for an employer while that employee has a prohibited drug in his or her system or if that employee has used drugs as evidenced by a drug test showing the presence of drugs or drug metabolites. The rule is intended to ensure a drugfree aviation workforce and to eliminate drug use and abuse in commercial aviation. EFFECTIVE DATE: This final rule is effective on December 21, 1988. FOR FURTHER INFORMATION CONTACT: Dr. Robert S. Bartanowicz, Acting Deputy Director, Office of Rulemaking (ARM-i), Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-9679. For example, pilots, flight attendants, flight engineers, and flight navigators may not act as a crewmember of a civil aircraft within eight hours after drinking an alcoholic beverage; while under the influence of alcohol; with 0.04 percent, or more, alcohol in their blood; or while using any drug that affects their faculties in any way contrary to safety. Also, crewmembers may be tested in the context of receiving medical care immediately after an accident. When there is a reasonable basis to suspect that one of these individuals has violated any of the above restrictions, these crewmembers must furnish, to the FAA, the results of any test taken within four hours of acting, or attempting to act, as a crewmember that indicates the Background presence of alcohol or any such drug in On December 4, 1986, the Federal the person's system. Moreover, pilots, Aviation Administration (FAA) issued flight attendants, flight engineers, and an advance notice of proposed flight navigators are required to submit rulemaking (ANPRM) (51 FR 44432; to a test to indicate the percentage of December 9, 1986) entitled "Control of alcohol in the blood when requested by Drug and Alcohol Use for Personnel a law enforcement officer who suspects Engaged in Commercial and General that a crewmember may have violated a Aviation Activities." The ANPRM State or local law governing the invited comment from the public on drug operation of an aircraft while under the and alcohol abuse by personnel in the influence, or impaired by, drugs or aviation industry and the options alcohol. available to the FAA for regulatory or The FAA may deny an application for other action in the interest of aviation a certificate or rating for up to one year, safety. The FAA received over 650 or may suspend or revoke an existing written comments in response to the certificate or rating, in the case of any issues raised in the ANPRM. pilot, flight engineer, or flight navigator On March 3, 1988, the FAA issued a who has been convicted of violating a notice of proposed rulemaking (NPRM) Federal or State law relating to drug (53 FR 8368; March 14, 1988) entitled trafficking or possession; who has "Anti-Drug Program for Personnel violated the proscriptions described Engaged in Specified Aviation above; who has refused to furnish the Activities." The NPRM set forth an results of any test that would indicate analysis of the comments received on the presence of alcohol or drugs taken the ANPRM and proposed regulations within four hours of acting, or for public comment. The FAA received attempting to act, as a crewmember; or over 260 written comments on the who has refused to submit to an alcohol proposals contained in the NPRM. test requested by a law enforcement officer investigating violations of State The FAA also held a series of public or local laws. The FAA also may deny hearings on the regulations proposed in the NPRM. These hearings were held on an application for a certificate or rating for up to one year, or may suspend or June 2, 1988, in Washington, DC; June 7, revoke an existing certificate or rating, 1988, in Denver, Colorado; and June 9, in the case of any air traffic control 1988, in San Francisco, California. Each of the hearings was recorded by a court tower operator, aircraft dispatcher, mechanic, repairman, or parachute reporter. The transcript of each hearing rigger who has been convicted of a and any statements or other material, violation of a Federal or State law submitted to the hearing panel during the.hearings, have been placed in the relating to drug trafficking or possession. •public docket. This material also has been reviewed in the development of the The Aviation Drug-Trafficking Control final rule. Act of 1984, which added language to sections 602 and 609 of the Federal CurrentRules. The FAA's Aviation Act of 1958, mandates that the comprehensive anti-drug program is one FAA take certain actions regarding action in a long history of actions to airmen involved in drug trafficking combat the use of drugs and alcohol in activities. The Administrator is required the aviation industry. The focus of the to revoke the airman certificate of any majority of these actions has been on airman who has been convicted of commercial aviation personnel, violating any Federal or State law particularly the cockpit and cabin crew. SUPPLEMENTARY INFORMATION: Availability of Final Rule Any person may obtain a copy of this final rule by submitting a request to the Federal Aviation Administration, Office of Public Affairs, Attn: Public Inquiry Center (APA-230), 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-3484. Requests must include the amendment number identified in this final rule. Persons interested in being placed on a mailing list for future rulemaking actions should request a copy of Advisory Circular 112A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure. Federal Register / Vol. 53, No. 224 / Monday, NoVember 21, -1988 / Rules and Regulations I Vol. 53, No. 224 I Monday, November 21, 1988 / Rules and Regulations Federal Resister relating to a controlled substance, other than simple possession, if an aircraft was used in, or was used to facilitate, the commission of the offense and the person served as an airman, or was onboard the aircraft, in connection with the commission of the offense. The Administrator has no discretion to review the conviction for the substantive offense. Under the 1984 legislation, the Administrator was prohibited from reissuing a certificate to that airman for up to five years but could reissue a certificate after an absolute minimum of one year, in certain extremely limited circumstances, if revocation was excessive and contrary to the public interest. As part of the Federal Aviation Administration Drug Enforcement Assistance Act of 1988, Congress amended sections 002 and 609 of the FAA Act, among other amendments to the Act, in October 1988. The statutory language now provides that the Administrator shall not issue an airman certificate to any person whose certificate has been revoked for aviation drug trafficking activities unless the airman is acquitted of the offense, a conviction upon which revocation is based is reversed on appeal, or the Administrator determines that issuance of an airman certificate will facilitate law enforcement efforts after a request from a Federal or State law enforcement official. The final rule requiring a comprehensive anti-drug program for employees in commercial aviation is consistent with these previous actions taken by the FAA. The FAA's commitment to a drug-free workforce also applies to its own employees. The Department of Transportation began random drug testing of DOT employees in safety- and security-sensitive functions in September 1987. The Secretary's goal is to establish and maintain a drug-free workplace as intended by Executive Order 12564 and as directed by Presidential memorandum dated October 4, 1986. It is the opinion of the Department of Transportation that random drug testing is the most effective means of determining the presence of drugs or drug metabolites that may adversely affect an employee's performance of safety- or securitysensitive job functions. Pursuant to the Department's program, an employee of the Department will be removed from Federal service under several circumstances: refusal to enter or to successfully complete a drug rehabilitation or abatement program; repeat usage of drugs; refusal to provide a urine specimen for drug testing; adulteration or substitution of a urine specimen; on-duty use of illegal drugs; or a determination that a DOT employee has engaged in illegal drug trafficking. In order to ensure that aviation safety is not compromised by a failure to detect drug users in the aviation industry, the FAA believes that it is appropriate and necessary to establish a comprehensive anti-drug program at this time. Existing IndustryPrograms.As part of their comments to the ANPRM and the NPRM, many employers note that they have implemented drug testing programs or employee rehabilitation programs. For example, although their drug testing programs were not specifically described, Martin Aviation implemented a drug testing program in February 1987 and Suburban Airlines has required preemployment drug testing of flight crew applicants for over a year. Federal Express Corporation currently conducts preemployment testing of all applicants and "reasonable suspicion testing" of all employees. Tramco, Inc. is a certificated repair station employing over 600 individuals and repairing over 100 aircraft per year. Tramco instituted a drug testing and counseling program "several years ago" and believes that the program yields substantial benefits to both employees and employers. Tramco tests all applicants for jobs and conducts tests based on probable cause. Tramco's tests based on probable cause are triggered by reports of employee drug use, employee attendance patterns that may suggest a drug problem, accidents, and observation by supervisors. A Tramco employee who tests positive for drugs is suspended for a minimum of one week and may not return to work until a drug test shows no evidence of drug use. Tramco estimates that, consistent with general statistics, 20 percent of its workforce has had some involvement with controlled substances. As of the time of its comment to the NPRM, Tramco identified 10 percent of its employees as individuals who had used drugs. Rocky Mountain Helicopters, Inc. implemented a drug testing program for its employees in July 1986. Rocky Mountain Helicopters tests all pilots, mechanics managers, and others who can affect aviation safety using preemployment, random, probable cause, and postaccident testing. Rocky Mountain Helicopters does not pay an employee's rehabilitation costs but will consider rehiring any employee who completes an approved rehabilitation program. Petroleum Helicopters, Inc. began a preemployment and periodic testing program in 1982 and supports 47025 47025 mandatory drug testing. Petroleum Helicopters denies employment to any applicant, and discharges any employee, who tests positive in a drug test. Petroleum Helicopters does not concur with the proposal to provide a rehabilitation opportunity to employees on the basis that an employer should not accept the risk of repeated illegal drug use among maintenance or flight personnel. The FAA believes that the comprehensive anti-drug program, promulgated by this final rule, is not a novel concept. In light of the FAA's long history of regulatory action in the area of drug use in aviation and the significant number of industry drug testing programs currently implemented by aviation employers, the FAA believes that the agency is justified in requiring the commercial aviation industry to implement similar comprehensive antidrug programs. Discussion of Comments General Overview of the MajorIssues The FAA received 261 comments in response to the NPRM. The FAA considered all timely-filed comments submitted in response to the NPRM and the testimony of 20 individuals who presented statements at the three public hearings held by the FAA. During the public hearings, the Secretary of Transportation, James H. Burnley, requested information from several individuals who presented statements at the hearings. The comment period for the NPRM closed on June 13, 1988. In order to accommodate the individuals who submitted supplemental information pursuant to the Secretary's request, the FAA also considered comments that were submitted as late as July 1, 1988. There were several major themes presented by the commenters. Many commenters focus on the lack of evidence of significant drug use or drug abuse in the aviation industry. The commenters particularly stress this point with respect to the cockpit crew based on age, income, managerial supervision, close working relationships with peers, periodic medical exams to determine fitness for duty, and professionalism of the crew. Based on the lack of evidence, these commenters conclude that establishment of a drug testing program is unwarranted and unconstitutional. Regardless of the amount of evidence, the majority of commenters agree with the FAA's assessment that drug use and substance abuse have no place in the aviation environment. Some commenters note 47026 Federal Register / Vol. 53, No. 224 / Monday, November 21, 1988 / Rules and Regulations that the FAA's anti-drug stance is commendable, but the true issue is the type of program that evolves from that stance. Many commenters support the FAA's efforts to develop a comprehensive anti-drug program that would achieve a drug-free commercial aviation workforce and agree that a program to achieve a drug-free aviation environment is beneficial. There is substantial, although not universal, support for a drug testing program using state-of-the-art urine testing. The gas chromotography/mass spectrometry (GC/MS) method, approved by the Department of Health and Human Services (DHHS), is recognized by the commenters as the most accurate-method of analysis for the presence of drugs or drug metabolites in urine if rigorous collection and analysis procedures, such as those contained in the DHHA mandatory guidelines, are followed. (As discussed in detail elsewhere in this preamble, the Department of Transportation is publishing "Procedures for Transportation Workplace Drug Testing Programs" which are adopted in this final rule in lieu of the DHHS guidelines. These DOT-wide procedures closely resemble the DHHS guidelines and are used because the DHHS guidelines are not drafted for application by entities other than Federal agencies.) While some concerns were raised about the testing procedures, these concerns generally involve drug testing programs and procedures in the early 1980s that did not embody the critical safeguards of a properly-administered testing program. Certain types of testing proposed in the NPRM receive significant support by the commenters. These types of testing include preemployment testing and postaccident testing. Periodic testing and testing based on reasonable cause received substantial support from the commenters. Some support for testing based on reasonable cause is predicated on traditional constitutional standards that apply to a search of the person. There is significant and strongly-held opposition to random testing. However, the FAA's drug testing program, including random testing as a critical element, is supported by some commenters. The objections to random testing are based on legal or constitutional issues, privacy issues, and the invasive nature of random testing based on personal grounds, cost issues, and the absence of a demonstrated need for a comprehensive testing program assuming a low level of drug use in the industry. Of those commenters who address the issue, there is agreement that the complexity, cost, and operational impact burdens of the rule would be significantly greater on small entities in the aviation industry. Finally, the commenters express significantly different opinions in the area of employee assistance programs (EAP). The primary differences surround the issues of the circumstances under which an employee is offered an opportunity for rehabilitation and the entity or individual who is responsible for payment of rehabilitation costs. Several major air carriers have already addressed this issue through insurance coverage or by labor-management agreement. However, even some of these organizations, although supportive of EAPs, oppose a broad, Federallymandated EAP requirement. Labor organizations clearly support expansive EAP opportunities and services. Small entities oppose EAP requirements on many grounds, including cost and possible negative coworker attitudes exhibited toward rehabilitated employees. The commenters differ regarding the method of achieving a drug-free aviation workforce and the manner in which the FAA would be involved in any program. The primary differences arise regarding the type and scope of testing used to identify sensitive safety- or securityrelated personnel who use drugs and the choices offered to those individuals who are identified as drug users. Labor Unions and Organizations RepresentingEmployees. In general, unions or organizations representing employees in aviation oppose the comprehensive mandatory drug testing proposed in the NPRM. Labor unions and employee organizations favor EAP and broad rehabilitation rights for all employees. These organizations oppose random drug testing but, with some qualifications, these organizations see a role for preemployment testing, postaccident testing, testing based on reasonable cause, and testing during and after rehabilitation to monitor an individual's progress. The International Association of Machinists and Aerospace Workers (IAM) opposes any industry-wide drug and alcohol testing until hard evidence of an industry drug problem that jeopardizes aviation safety is substantiated and documented. The Independent Union of Flight Attendants (IUFA) opposes all forms of mandatory drug testing of employees. The Independent Federation of Flight Attendants (IFFA) objects generally to drug testing as unwarranted governmental intervention into labormanagement relations but would support preemployment screening and postaccident testing if reasonable cause for such testing can be objectively illustrated. IFFA objects specifically to random testing in any form as unconstitutional and contrary to labor law. IFFA believes that the focus of any drug testing program should be limited to impairment on the job and states that no currently available testing procedure can determine drug impairment on the job. The Association of Flight Attendants (AFA) believes that drug testing of flight attendants is not warranted. However, AFA and the Association of Professional Flight Attendants (APFA) support preemployment testing of applicants seeking jobs in the industry if that testing is not used to discriminate against applicants on the basis of disabilities unrelated to drug use. AFA also would not oppose postaccident testing of pilots or probable cause drug testing of employees who are under the influence of drugs if these samples were collected by an FAA inspector. APFA opposes random testing, postaccident testing absent individualized suspicion, and testing based on reasonable cause as proposed. The Flight Engineers' International Association (FEIA) opposes all testing except in the case where probable cause exists to believe that an employee is impaired by drugs; in order to protect employees from harassment, FEIA states that any determination to test an employee based on probable cause for impairment should be reviewed by a neutral party. The Teamsters Union could support preemployment screening; testing based on reasonable suspicion to believe that an employee's actual or current impairment has, or is, affecting job performance or workplace safety; periodic testing to maintain medical certification; and testing after an accident or a "near miss" if there is a reasonable basis to suspect that human error may have been a casual factor. The Air Line Pilots Association [ALPA), representing 41,000 pilots employed by 44 large and small airlines, is firmly opposed to all forms of drug and alcohol abuse by airline personnel. ALPA primarily is opposed to random and periodic testing based on their belief that these tests are offensive, ineffectual, unjustified, and unconstitutional. ALPA believes that if there is drug use among commercial pilots, the incidence of drug use would be less than 0.5 percent. On this basis, ALPA asserts that widescale random testing of the relatively small aviation population will result in a significant number of false-positive test results. ALPA does not oppose testing prior to 47027 Federal Re ister / Vol. 53, No. 224 / Monday, November 21, 1988 / Rules and Regulations Federal Re2ister I Vol. 53, No. 224 I Monday, November 21, 1988 / Rules and Regulations 47027 commenters oppose the drug testing supports the FAA's comprehensive drug employment, testing after an accident, requirements of the proposed rule based testing program and favors an testing in circumstances where there are on constitutional objections, failure of reasonable grounds to suspect drug use, opportunity for rehabilitation only for the FAA to demonstrate a drug problem those employees who volunteer for and testing to monitor rehabilitation. in the aviation community, and rehabilitation. In the area of EAP ALPA believes that the approach to perceived inaccuracies of drug testing services, Part 121 certificate holders the drug abuse problem articulated in collection and analysis. A minority of generally favor flexibility and latitude the NPRM is inappropriate. ALPA individual commenters generally for an employer to design a company instead urges the FAA to consider an support the FAA's anti-drug proposals EAP. American Airlines, however, approach similar to the Human and primarily support the testing favors industry-wide standard EAP Intervention Motivation Study (HIMS) requirements. These individuals are requirements. program developed to identify and treat private citizens or consumers who base Most Part 135 certificate holders and alcoholism among pilots. The key their support on the need to ensure that small aviation businesses object to the elements of the HIMS program are aviation personnel are drug free, drug testing requirements proposed in education, peer involvement, particularly on the job. The strongest the NPRM. The Regional Airline intervention, confrontation, and individual support is expressed by Association (RAA), which represents rahabilitation. Although the HIMS letters from the family and friends of a many Part 135 certificate holders, program has focused on treatment of passenger who was killed in the crash of opposes random testing; RAA also pilots who demonstrate a problem with Continental Air Express Flight 2286 near suggests that the random selection rate alcohol, ALPA sponsored a HIMS drug Durango, Colorado. The comments from be set at a rate less than the maximum abuse training program in November the family and friends of the deceased 125 percent rate proposed in the NPRM 1987 which the FAA attended. passenger urge the FAA to do if the FAA mandates a random testing Labor and employee organizations everything within its statutory authority requirement. The Primary objection of also strongly support limitations on an to prevent a similar tragedy in the Part 135 certificate holders and small employer's ability to exclude any future. businesses is to the proposed employee from an opportunity for requirement to offer an opportunity for rehabilitation and limitations on an Specific Issues rehabilitation to an employee. These employer's ability to discharge an Discussion of the constitutionalissues organizations oppose mandated employee. Most organizations, including regardingrandom andperiodicdrug rehabiliation because of the economic IUFA, IFFA, AFA, and APFA, strongly testing. A number of commenters have burden that would be imposed on a support regulations that would require questioned the constitutionality of drug small operator. The National Air an employer to establish and participate testing programs for aviation personnel. (NATA) suggests, Transport Association EAP in comprehensive, nonpunitive Although the state of the case law is still in its June 2, 1988 testimony, that Part services established by collective evolving in rapid fashion and no 135 certificate holders employing 100 or bargaining or negotiation and available definitive Supreme Court resolution of be should covered employees fewer to all employees. ALPA agrees that any many relevant and complex issues has exempted from all requirements of the regulations should clearly recognize that been achieved, the FAA feels confident program. anti-drug proposed unions have collective bargaining rights that testing required under this rule will Grace Flying Service, Inc., a Part 135 under Federal labor laws; ALPA pass constitutional scrutiny. The FAA certificate holder conducting singlesuggests that any anti-drug regulations recognizes that there are legitimate and engine air taxi services, flight promulgated by the FAA should ensure significant constitutional concerns instruction, and aerial application that the regulatory requirements do not surrounding drug testing in general and of opposes'drug testing services, interfere or override the union's random drug testing as a specific employees. Grace Flying Service collective bargaining rights. FEIA component of drug testing. The FAA strenuously objects to any drug tests, supports EAP services, mandatory for acknowledges the current widescale whether scheduled or random, and each carrier and paid for by the carrier, litigation and apparent disparate would be reluctant to test its employees for rehabilitation of all employees judicial opinions on drug testing even if testing is mandated by the FAA. regardless of the circumstances that programs. The National Business Aircraft precipitated a drug test. LAM suggests FAA Response. The principles of the the Association (NBAA) concurs with that FAA regulations should be Fourth Amendment to the U.S. FAA's anti-drug program with certain guidelines, applicable only to carriers Constitution are paramount in reservations. NBAA primarily is who have a documented substance scrutinizing the fundamental legality of concerned about the constitutionality of abuse problem affecting aviation safety, many drug testing programs. As a random drug testing and the FAA's that stress education, prevention, threshold legal matter, the Fourth reliance on laboratory testing results rehabilitation, and protection of an Amendment applies to "searches" that may be unreliable in detecting employee's privacy. conducted or mandated by the drugs or drug metabolites proposed to Employers and Organizations government and protects individuals be analyzed in the NPRM. RepresentingEmployers. Most against "unreasonable searches and Individual Commenters. The FAA employers support mandatory drug received 170 comments from individuals. seizures." Action of a private party does testing of employees and limitations on not constitute State (or Federal) action The majority of these individuals are an employee's opportunity for unless there exists a close nexus pilots employed by major airlines and rehabilitation. Part 121 and Part 135 between the state and the action in self-employed pilots who would be certificate holders do not express the question. Jackson v. Metropolitan subject to the requirements of the same opinions regarding the proposals in the NPRM. The general views held by Part 121 certificate holders are characterized by the comments submitted by the Air Transport Association of America (ATA). ATA proposed rule. The FAA also received comments from general aviation pilots and individuals who are not employed in the commercial aviation industry. The vast majority of the individual Edison, 419 U.S. 345 (1974); Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972). Assuming that the drug testing programs called for under the final rule do implicate the government, a second Federal Register ] Vol. 53, No. 224 / Monday, November 21, 1988 / Rules and Regulations Federal Register / Vol.' 53,No22 ModyNoebr1,98IRusan Rgltis * * *."NewJersey v. T.L.O., 469 U.S. at the requirement for random drug testing issue then arises concerning whether calls for selection of an employee to be 340. In determining the reasonableness urine tests under these programs are "searches" within the meaning of the tested in a scientifically-acceptable of a search, the Supreme Court has manner, such as use of a computerrepeatedly stressed the importance of Fourth Amendment. Although most based random number generator. the facts particular to the search while courts to address the issue to date have Requirements for testing based on acknowledging that the test of ruled that toxicological testing of reasonable cause or postaccident testing reasonableness " * * is not capable of employees for the purpose of also are severely circumscribed in order precise definition or mechanical determining fitness for duty is a search to limit an employer's discretion in application." Bell v. Wolfish, 441 U.S. within the meaning of the Fourth administering such tests to employees. 520, 559 (1979). In analyzing a drug Amendment, the issue is not entirely Also, the FAA will review the actual testing program, " * * what is settled. See Wyman v. James, 400 U.S. employer anti-drug programs, required reasonable depends on the context 309, 317-338 (1971) (government welfare to be submitted to the agency in within which a search takes place." caseworker's "home visit" as a accordance with provisions of the final NewJersey v. T.L.O., 469 U.S. at 337. precondition for assistance payments is rule, to ensure that discretion is in fact In scrutinizing whether particular not a Fourth Amendment search). See limited in the administration of drug searches comport with the Fourth also, Lovvorn v. City of Chattanooga, tests under these programs. Cf. National Amendment, courts have adopted a 846 F.2d 1539, 1553-1554 (6th Cir. 1988) Treasury Employees Union v. Reagan, balancing test. In general, to support a (Guy, J., dissenting), panel decision No. 86-4058, slip op. at 14 (E.D.La. April vacatedand rehearingen banc ordered, claim that a search of an individual or 29, 1988) (holding that the the individual's property is reasonable, (August 3, 1988); National Treasury constitutionality of Executive Order the government must demonstrate that, Employees Union v. von Raab, 808 F.2d requiring Federal agencies to establish on balance, the public's legitimate 1057, 1060, 1062 (5th Cir. 1987] drug testing programs for Federal (Higginbotham, J., concurring). Cf. Mack interest in conducting the search employees was not ripe for review since outweighs the individual's legitimate v. UnitedStates, F.B.L, 814 F.2d 120, 125 each agency had not implemented a expectation of privacy. See e.g., United n.2 (2nd Cir. 1987). finalized, particular plan). 473 Hernandez, de States v. Montoya Also assuming, arguendo, that urine The actual testing procedures that U.S. 531, 537 (1985); United States v. tests of aviation personnel for illegal each employer is required to implement 588 U.S. 579, 462 Villamonte-Marquez, the meaning drugs are "searches" within under this final rule also are tailored of the Fourth Amendment, it is clear that (1983); Delaware v. Prouse,440 U.S. 648, narrowly to respect an employee's 654 (1979). Thus, the courts must .... while searches ordinarily must be reasonable expectation of privacy. The consider the scope of the particular conducted pursuant to a warrant issued DOT procedures governing collection of intrusion, the manner in which it is on probable cause grounds, such a conducted, the justification for initiating urine samples, which are based on the requirement is not always necessary. DHHS guidelines, are carefully designed it, and the place in which it is Almeida-Sanchez v. United States, 413 to preserve privacy while protecting the conducted." Bell v. Wolfish, 441 U.S. at U.S. 268, 277 (1973] (Powell, J., integrity of the sample. The final rule 559. concurring). Where, for example, ' ... contains a number of important Viewed in this light, it is beyond the burden of obtaining a warrant is dispute that the public has an overriding employee safeguards, including privacy likely to frustrate the governmental interest in assuring that sensitive safety- during collection under the majority of purpose behind the search * * *," circumstances, stringent laboratory and security-related aviation personnel [Camera v. Municipal Court, 387 U.S. safeguards, and provisions for perform their duties free of illegal drugs. 523, 533 (1967]], the Supreme Court has challenging results. Other employee The drug problem in society in general routinely held that a warrant is not drug testing programs incorporating the required by the Fourth Amendment. See and evidence of drug use in the aviation collection and testing procedures of the industry in particular are documented e.g., Griffin v. Wisconsin, 107 S.Ct. 3164, DHHS guidelines have been upheld 3167 (1987); New Jersey v. TL.O., 469 elsewhere in the preamble of this final against constitutional attack. The DOT rule. The impairing effects of illegal U.S. 325, 340 (1985). The Supreme Court procedures so closely resemble the drugs and the substantial risks to public has likewise found that the probable cause standard is inappropriate where it safety posed by aviation employees who DHHS guidelines in all pertinent respects that the Department of use illegal drugs underlies the would defeat the purpose that the Transportation is confident that these compelling governmental interests in search is designed to achieve. See e.g., procedures also will be upheld. See promulgating this final rule. NewJersey v. T.L.O., 469 U.S. at 340American Federationof Government 342; O'Connorv. Ortega, 107 S.Ct. 1492, In contrast, the drug testing Employees v. Dole, 670 F.Supp. 45 1501-1502 (1987) (plurality opinion) requirements of the final rule involve a (D.D.C. 1987), appeal docketed,No. 87(upholding the search of a public minimal invasion of privacy. As the 5417 (D.C.Cir. Dec. 11, 1987) (upholding employee's office for work-related Supreme Court has indicated, where the constitutionality of the Department searches are undertaken in situations noninvestigatory reasons on less than of Transportation program for random where individualized suspicion is probable cause grounds); United States drug testing of safety- and securityv. Martinez-Fuerte,428 U.S. 543, 560-561 lacking, other safeguards must be relied sensitive agency employees); National (1976) (footnotes omitted) (while ... upon to ensure that the discretion of the Association of Air Traffic Specialists v. some quantum of individualized party conducting the search is properly Dole, 2 Ind.Emp.Rts. Cases (BNA) 68 defined and the scope of the search is suspicion is usually a prerequisite to (D.Alaska 1987) (denying a motion for a limited. See Delaware v. Prouse,440 constitutional search or seizure,] * * * preliminary injunction against the FAA's the Fourth Amendment imposes no U.S. at 654-655 (footnote omitted); New use of urinalysis drug testing as part of irreducible requirement of such York v. Burger, 107 S.Ct. 2636, 2648 an annual physical examination of the of suspicion"). (1987). The drug testing requirements agency's air traffic specialists). the final rule place significant Rather, "[tihe fundamental command Equally significant is the fact that discretion employer's on an constraints of the Fourth Amendment is that urine drug testing of sensitive safetyin conducting drug testing. For example, searches and seizures be reasonable 47028 47028 Federal Register / Vol. 53, No. 224 / Monday, November 21, 1988 / Rules and Regulations and security-related employees is to be conducted in the "context" of the employment relationship. As the Supreme Court has pointed out, "[tihe operational realities of the workplace *** may make some employees' expectation of privacy unreasonable." O'Connorv. Ortega,107 S.Ct. at 1498. This is particularly important in circumstances where the employee works in an industry in which his or her activities are subject to extensive regulation. Thus, persons who work in such "closely regulated" industries have a "reduced expectation of privacy" [New York v. Burger, 107 S.Ct. at 26461 and, "in effect consentU to the restrictions placed upon them" [Almeida-Sanchez v. United States, 413 U.S. at 2711. For these very reasons, two Federal courts of appeals have upheld urinalysis testing, in the absence of particularized suspicion, in industries where pervasive regulation has reduced an employee's expectation of privacy. See Rushton v. Nebraska Public Power Dist., 844 F.2d 562, 566 (8th Cir. 1988) (nuclear plant operators); Shoemaker v. Handel,795 F.2d 1136, 1142 (3rd Cir.), cert. denied, 479 U.S. 986 (1986) (jockeys); Policemen's Benevolent Ass'n., Local 318 v. Township of Washington, 850 F.2d 133 (3rd Cir. 1988) (police officers). It is beyond dispute that aviation has always been subject to pervasive regulation by the government and by employers themselves. As one Federal district court has noted: [tihe rationale of the Third Circuit upholding drug urinalysis for jockeys in order to protect the integrity of horse racing is even more compelling when the public need for air safety is considered. If horse racing is recognized as a closely or pervasively regulated activity, then aviation activities and the aviation industry are as much or possibly more closely regulated. Indeed, the creation of a federal agency charged with the responsibility for ensuring safe air travel reflects the public interest in air safety. * * [The public perception of air safety not only is critical to the airline industry but to all who fly. * * * [Chlose and pervasive regulation of aviation related activities is well established and * air safety relates to serious risk or hazards which require close and constant attention. NationalAssociation of Air Traffic Control Specialists v. Dole, 2 Ind. Emp. Rts. Cases (BNA) at 78. The FAA recognizes that a numberof Federal and State courts have rejected government-mandated drug testing program of Fourth Amendment grounds. However, even courts striking drug testing programs have recognized that drug testing is appropriate in other contexts. See e.g., Lovvorn v. City of Chattanooga,846 F.2d at 1553-1554 (Martin, J.) ("When determining, then, whether a mandatory drug search is 'reasonable,' we believe that, as the costs to society of an inpaired employee increase, the requisite level of suspicion that a drug problem exists decreases."); Policemen'sBenevolent Ass'n, Local 318 v. Township of Washington, 672 F.Supp. 779, 792 (D.N.J. 1987), rev'd,850 F.2d 133 (3rd Cir. 1988) ("[Tjhe need to prevent a major airline disaster presents a far more compelling rationale than those presented by the municipality in support of testing its police officers."); American Federationof Government Employees v. Meese, No. C-88-1419-SAW (N.D.Cal. June 16, 1988) (issuing a preliminary injunction against a Bureau of Prison plan to test randomly all agency employees but nonetheless noting that "[t]here are cases in which compulsory drug testing may be justified in the interest of public safety or security." Memorandum opinion at 2). The FAA also is aware of the recent Ninth Circuit decision holding unconstitutional regulations promulgated by the Federal Railroad Administration-mandating blood and urine tests of railroad employees who are involved in certain train accidents and fatal incidents and authorizing breath and urine tests after certain accidents, incidents, and rule violations-because the rules do not require a showing of "particularized suspicion" drug or alcohol impairment prior to testing. Railway Labor Executive'Associationv. Burnley, 839F.2d 575 (9th Cir.), cert.granted,108 S.Ct. 2033 (1988). The Ninth Circuit based its views, in part, on the proposition that "* * * the vast bulk of [railroad] safety regulation is directed at owners and managers of railroads, not employees." Id. at 585. The U.S. government disagrees with the Ninth Circuit panel's decision, which Is contrary to rulings in other Federal appellate courts. Moreover, contrary to the Ninth Circuit's views of the Federal *Railroad Administration's jurisdiction over railroad employees, FAA's jurisdiction over employees in the aviation industry is clear and should not be subject to challenge on this basis. The Supreme Court has granted the' government's petition for a writ of certiorariin Railway Labor Executives' Association v. Burnley and has ordered that this case be argued this term "in tandem" with National Treasury Employees Union v. von Raab, 816 F.2d 170 (5th Cir. 1987), cert.granted,108S.Ct. 1072 (1988) (upholding drug testing of applicants for critical safety or security sensitive positions in the U.S. Customs Service). Decisions in these cases may not be forthcoming until the 47029 spring of 1989. However, in the absense of Supreme Court guidance, the FAA remains convinced that the need for drug testing by urinalysis in the aviation industry to determine fitness for duty of sensitive safety-or security-related employees and, thereby, to ensure public safety clearly outweighs the privacy interest of individuals in this class. While not *totallyfree from doubt, it is the opinion of the Department of Transportation that the FAA's anti-drug program, and similar regimens proposed by other administrations within the Department, will be determined to be constitutional. The critical need for properly-administered drug testing to ensure that employees in the transportation industry do not have drugs or drug metabolites in their system while performing sensitive safety- and security-related functions .outweighs the reduced privacy interest of these employees. Lack of Evidence of a DrugProblem in the Aviation Industry.Nearly every commenter who opposes drug testing in general, and random testing in particular, and even commenters who support the comprehensive drug testing proposals, raise the issue of lack of evidence of a drug problem in commercial aviation. On this basis, the commenters assert that the FAA can not justify the comprehensive proposals contained in the NPRM. ALPA, the Aircraft Owners and Pilots Association, (AOPA), and the organizations representing flight attendants maintain that the industry should police itself in the area of drug use and abuse. FAA Response. The FAA made no attempt to obscure the lack of widespread evidence of drug use or abuse among commercial aviation personnel. However, after publication of the NPRM in the Federal Register on March 14, 1988, federal investigators released preliminary data showing that the captain of Continental Air Express Flight 2286, which crashed in Durango,. Colorado on January 19, 1988, may have been impaired by drugs while operating the aircraft. A preliminary report of the National Transportation Safety Board (NTSB) indicates that toxicological test results show that the captain of Flight 2286 had cocaine and a cocaine metabolite in his system at the time of the crash. Seven passengers and the pilot and copilot died in the accident. In 1983, the NTSB issued an Aircraft Accident Report (NTSB/AAR-84/11) on the crash of Central Airlines Flight 27 in Newark, New Jersey, on March 30, 1983. The NTSB determined that the probable cause of the crash of the Gates Learjet Federa Re ister / Vol. 53, No. 224 / Monday, November 21, 1988 / Rules and Regulations Federal Register / Vol. 53,No22 ModyNoebr1,98/Rusan Rgltis a substantial enacted has Congress commercial aviation sector. The FAA nonscheduled, cargo-carrying aircraft amount of legislation to address the use, recognizes that commercial aviation included "impairment of the flight distribution, importation, and personnel operate in a professional and crew's judgment, decisionmaking, and interdiction of drugs in the United States highly-regulated environment. However, flying abilities by a combination of and is considering enactment of pursuant to the FAA's statutory physiological and psychological additional legislation. Moreover, a mandate to ensure aviation safety, the factors." The NTSB did not conclude significant number of public opinion FAA also must acknowledge that that drug-impaired performance was the polls indicate that the American public commercial aviation personnel are not sole cause of the crash. However, the is deeply concerned about the effect of use drug from, insulated to, nor immune results that test state does report drug use by individuals in critical safety or abuse that may affect safety-critical indicate that the captain had used occupations, including aviation. The fact job performance. The FAA believes that marijuana and the copilot had used, or that the Administration, Congress, and any drug use in commercial aviation been exposed to, marijuana within the the public are concerned about drug use warrants preventive and proactive 24 hours preceding the crash. Also, is noteworthy. However, the FAA is intervention by the FAA to ensure toxicological tests indicate that the issuing the comprehensive anti-drug aviation safety. The FAA believes that copilot's urine showed evidence of program in this final rule because it is this view is not inconsistent with the contra-indicated use of an antihistamine consistent with the FAA's statutory duty increasing awareness of several drug. to promulgate minimum standards to have, currently who employers aviation Additional evidence of illegal drug use ensure and promote aviation safety. as disclosed in their comments, basic by individuals employed in the airline rehabilitation and employee testing DHHS Guidelines.The FAA received drug industry appeared in the fall of 1986, programs for their employees. numerous comments, including when a series of articles in the comments from drug testing laboratories Although not a universally-expressed Pittsburgh Press, based on interviews and companies supplying drug testing opinion among the commenters, ATA with emergency room staffs at area equipment, on the guidelines for drug "fully embrace[s] the philosophy, hospitals, highlighted 23 cases of airline testing promulgated by the Department expressed in the NPRM, that individuals flight crew drug abuse. Twenty of those of Health and Human Services (DHHS). who wish to work in aviation activities cases involved cocaine overdoses, two that involve the safety of passengers, co- Many of the commenters state that the were heroin reactions, and one dealt certification requirements for drug with valium and alcohol. Twelve cockpit workers, and others must not use illicit testing laboratories are too rigid drugs, even while off-duty." Several crewmembers and eleven cabin commenters, including RAA, note that to because the DHHS guidelines require crewmembers were among those treated laboratories to have the capability to do the extent any drug use is occurring in by Pittsburg area hospitals for drug use. both initial and confirmation testing at the aviation industry, it is a "safety Personnel at those hospitals also issue and it is well within the purview of the same laboratory site. The Director of indicated that they had treated the Santa Maria Public Airport District the FAA to develop a comprehensive, numerous cases of drug abuse among and Psychemedics Corporation, a nationally applicable set of regulations." non-flight employees, such as commenter at the San Francisco public The Equal Employment Advisory mechanics. The Pittsburgh Press also hearing, suggest that the FAA use Council (EEAC) believes that the surveyed 17 drug treatment clinics analysis of hair, in lieu of urinalysis workplace is an appropriate across the country and found that more testing, to test for drugs on the basis that environment to intervene in the process than 69 pilots had been treated for hair analysis may be more accurate and of individual substance abuse. EEAC cocaine addiction. A subsequent FBI more reliable. Psychemedics also believes that the FAA has correctly investigation of drug use in the Corporation proposes that analysis of concluded that the purpose of drug Pittsburgh area produced evidence that hair samples would produce more a number of airline employees, including testing is not to determine that an complete results because hair contains a employee is impaired by drugs at the cockpit, cabin, and ground time of testing. Instead, testing is used to "longitudinal" history of drug use that crewmembers, had used cocaine, could reveal drug use in excess of 90 enable an employer rationally to marijuana, and other illegal drugs, days before analysis. This commenter drugs has used if an employee determine sometimes on duty or shortly before also notes that the two-step process of and to conclude reasonably that there is reporting for duty. immunoassay and GC/MS analysis based impairment future of possibility a comments The NPRM also included would still be used; the only change on subsequent use. by a Part 121 and Part 135 certificate would be the material that was Comments that the ProposedRules holder that implemented an analyzed. Federal Express strongly are Politically-Motivated.The FAA unannounced drug testing program opposes implementation of the DHHS received many comments that state that applicable to its employees. This guidelines because they are overlythe comprehensive anti-drug program company reported that 2.5 percent of its burdensome on carriers with operations proposed by the FAA is based solely on 180 pilots and 4 percent of its 240 in multiple locations. political perceptions and goals. The mechanics tested positive for a trace, or Some commenters also state that a commenters stress that DOT and the more, of illegal drug in their system. split sample should be obtained from FAA have surrendered to the public Data from the airline industry regarding each individual in order to ensure the hysteria over drug use and unfavorable preemployment screening of applicants accuracy of the analysis. Several press reports of drug use in the aviation for various positions indicate that the commenters raise the issue that industry. number of positive drug tests ranges specimens may be used by an employer FAA Response. Because this issue is from 4.2 percent to 20 percent with to test for physiological states, including raised so frequently by the commenters, results as high as 25 percent to 30 epilepsy and pregnancy, to discriminate the FAA chooses to address these percent in some geographical locations. against applicants and employees. A the are beyond they although comments show an not does this data Although few commenters consider the scope of the rulemaking. The war overwhelming drug problem in requirement of "monitored" specimen against drugs is one of this commercial aviation, it does show collection, whether by listening to or Administration's top priorities. Also, concrete evidence of drug use in the 47030 47030 Federal Register / Vol. 53, No. 224 directly observing an individual, to be embarrassing and intrusive. The AMA opposes the proposal to require employers to comply with the DHHS guidelines. The AMA states that these requirements would result in an undue hardshipon aviation medical examiners who must comply with chainof-custody procedures designed to ensure the integrity of the specimen. The NTSB strongly concurs in the requirement that drug testing laboratories that analyze specimens pursuant to the drug testing program must meet the scientific and technical DHHS guidelines and must be certified by the Department of Health and Human Services. Insofar as the DHHS guidelines are inconsistent with other NTSB comments, the NTSB recommends that the FAA revise the guidelines for the industry drug testing program. ATA agrees that only DHHS-approved labs should be used for analyzing specimens but that the DHHS guidelines should be tailored to accommodate the particular needs of the aviation industry. The SYVA Company and Drug Screening Systems, Inc. submitted comments to the FAA on the DHHS guidelines. Both companies are involved in the manufacture and supply of drug screening systems and equipment. These companies urge caution in the FAA's proposal to adopt the DHHS guidelines based on the restrictive and possibly burdensome nature of the requirements on employers required to conduct drug tests pursuant to the rule. These companies address several issues, including batch requirements, on-site collection, threshold drug levels, and development of new testing procedures not permitted under the current DHHS guidelines. IFFA feels strongly that the Enzyme Multiplied Immunoassay Technique (EMIT) test should not be used as part of laboratory analysis of specimens because the test detects only the presence of a drug metabolite of the active drug and it often results in falsepositive results, false-negative results, or misidentified results. ALPA generally supports the proposal to make the DHHS guidelines applicable to collection and analysis of specimens. However, ALPA believes that the FAA's regulation should contain additional employee safeguards. First, the regulation should require split samples during collection. Second, the regulation should require that threshold drug levels determined by a confirmation test be consistent with the initial test to account for quantitative discrepancies in test results that are not attributable to deterioration of the sample. Third, ALPA suggests that an employee should be / Monday; 'Nove'mber 21, -1988 able to present the results of an independent test result to an MRO during review of test results to determine the validity of a positive test result. Fourth, the regulation should allow labor and management, through collective bargaining, to inspect laboratories and to perform quality control and administrative functions related to any anti-drug program. Labor unions, including TWU and the Teamsters Union, advocate development and implementation of separate or additional guidelines to safeguard the selection and performance of laboratories analyzing specimens for drugs or drug metabolites. EEAC believes that the DHHS guidelines are a valuable contribution to the goal of establishing procedural norms in collection and testing of specimens. However, EEAC believes that employers should establish individual procedures to ensure the integrity of a sample and its analysis. EEAC emphasizes that it is inappropriate for the FAA to impose such detailed requirements on private employers. FAA Response. In the NPRM, the FAA proposed that all collection of specimens and drug testing take place in accordance with the "Mandatory Guidelines for Federal Workplace Drug Testing Programs" published by the Department of Health and Human /.Rules and-R guldtions 47031 through the use of mobile units, rather than the more permanent collection sites contemplated by the DHHS guidelines. It may not be practicable for regulated employers to maintain on-site permanent logbooks. Consequently, the DOT procedures would permit alternative collection and recordkeeping procedures in these circumstances. The Office of the Secretary in the Department of Transportation will publish elsewhere in today's Federal Register an interim final rule with request for comments entitled, "Procedures for Transportation Workplace Drug Testing Programs," that will codify the Department of Health and Human Services guidelines for drug testing at 49 CFR Part 40. This new part will set forth requirements for such things as specimen collection procedures, laboratory procedures, and quality assurance and certification procedures. The rule will provide guidance on how this rule shall be implemented. During the comment period on the FAA's NPRM, and those rules proposed by other DOT operating administrations, comments were received concerning the DHHS guidelines. These comments are noted in this preamble and also will be transferred to the Department of Transportation to be incorporated in the docket for the Office of the Secretary (OST) interim final rule creating 49 CFR Services [53 FR 11970; April 11, 1988). Part 40. OST will respond to those The DHHS guidelines describe the comments, as well as comments and testing procedures collection the comment period for received during applicable to all drug testing in the Part 40, in its notice following the end of Federal government, and they include that comment period. safeguards for the accuracy and privacy The FAA proposed only urine testing of collection and testing. The Department of Transportation has in the proposals contained in the NPRM. determined that certain modifications of The suggestion of drug testing using analysis of hair specimens raises an the DHHS guidelines are appropriate in issue within the expertise of the the context of this and other DOTDepartment of Health and Human operating administration drug-free Services. Thus, at this time, DOT and workplace regulations. The result will the FAA do not intend to deviate from be the DOT "Procedures for Transportation Workplace Drug Testing urinalysis as the technique for determining the presence of drugs or Programs," which will be codified at 49 drug metabolities in an employee's CFR Part 40. These DOT procedures are system. intended to preserve, to the greatest The FAA acknowledges the AMA extent practicable, the important comments regarding the inability of all safeguards provided by the DHHS aviation medical examiners to comply guidelines. with the collection and chain-of-custody Some of the modifications to the procedures contained in the DHHS DHHS guidelines will be editorial in guidelines due to the lack of appropriate nature (e.g., references to facilities for collection. The FAA does responsibilities of "agencies" are not agree with the AMA that the changed to references to "employers"). Other modifications are intended to take requirements are overwhelming or into account differences in the situations overly-burdensome. Although the AMA was not specific regarding its objection of Federal agencies and DOT-regulated to the collection and chain-of-custody industries. For example, in testing at procedures, DOT has included remote sites, DOT-regulated industries provisions in the DOT procedures to may find it necessary to conduct some address some of the difficulties kinds of testing in medical facilities or 47032 Federal Register I Vol. 53, No. 224 / Mbnday, November 21, 1988 / Rules and Regulations associated with collection and chain-ofcustody procedures that may not have been appropriate for private entities. However, the FAA and DOT believe that strict collection and chain-ofcustody procedures are critical to ensure the integrity and identity of a specimen provided by an employee. Thus, DOT has retained these protections in its modification of the DHHS guidelines. Moreover, only those aviation medical examiners who choose to provide this service to commercial aviation personnel during a physical examination are required to conform to the minimum procedures contained in the DOT procedures. Consistent with the suggestion of the NTSB and other commenters, the Department of Transportation will modify the DHHS guidelines to tailor the provisions for application by private entities. The DOT procedures will not modify the basic, technological aspects of the rule (e.g., DHHS certification of laboratories, testing methodologies, collection procedures, and chain-ofcustody procedures). Any arguably substantive changes from the DHHS guidelines will be included only to reduce practical and administrative burdens on private entities. These changes will be discussed in an ancillary document published by the Department of Transportation in the Federal Register. DOT and the FAA believe that the DOT procedures will provide adequate and appropriate procedures for collection and testing of samples. Although the FAA anticipates that the DOT procedures will prove to be an effective and efficient method of collection and testing, experience under the testing program or a change in the circumstances or needs of the industry may warrant further regulatory revisions in the future. Accuracy of Drug Test Results. Many commenters base their opposition to drug testing on the perceived inaccuracy of analysis and test results. The commenters include the issues of falsepositive test results, passive inhalation of illicit drugs, misidentification of licit drugs, and ingestion of food substances, including poppy seeds, resulting in a positive drug test result. FAA Response. The FAA is aware of these expressed concerns because each of these issues surfaced in the early 1980s with the first series of drug testing programs introduced in the military and the private sector. In the early years of drug testing and analysis, laboratory security and analytical procedures had not reached today's level of sophistication. False-positive test results occur primarily in analysis of a specimen during an initial screening test, although contemporary screening tests, such as immunoassay tests, have become extremely accurate and approach 99 percent accuracy levels. Despite its increased accuracy, the initial screening test remains a less expensive test used only to yield a preliminary indication of the possible presence of drugs or drug metabolites. In order to ensure the integrity and accuracy of any test result, each positive initial screening test result must be confirmed using GC/MS analysis or another confirmatory procedure that may be subsequently approved by DHHS and incorporated into the DOT procedures. The GC/MS confirmation test is an extremely accurate and sophisticated test and is virtually errorfree when used in compliance with the DHHS guidelines. The DOT "Procedures for Transportation Workplace Drug Testing Programs" (49 CFR Part 40), will be essentially identical to the "Mandatory Guidelines for Federal Workplace Drug Testing Programs" published by the Department of Health and Human Services on April 11, 1988. Employers must comply with the DOT procedures when conducting a testing program pursuant to the final rule. Like the DHHS guidelines, the DOT procedures will provide a system of checks and balances during collection and analysis of specimens. This system ensures the integrity and accuracy of the tests using appropriate scientific methods and rigid chain-of-custody procedures. An employer may only use a laboratory that complies with the DOT procedures. Also, an employer may only use a laboratory that has been certified by DHHS to process and analyze specimens required by the FAA rule. The DOT procedures regarding testing methodologies and technical matters will be identical to the DHHS guidelines. Thus, employers will be able to use any DHHS-certified laboratory since the laboratories will not necessarily be required to use different analytical techniques and testing methodologies for different entities conducting testing. The Department of Transportation expects that sufficient laboratories will have been certified for drug analysis by the Department of Health and Human Services by early 1989. However, the FAA will extend the compliance dates contained in this final rule if DHHS has not certified a sufficient number of laboratories to efficiently and accurately process and analyze specimens pursuant to the requirements of this final rule. Since the mid-1980s, laboratories have become increasingly sophisticated in their analytical methods and chain-ofcustody procedures. Many laboratories have compiled extensive records demonstrating scientific accuracy and protection of individual specimens. For example, CompuChem Laboratories, a major drug testing laboratory, has analyzed over 500,000 urine samples, conducting discrete testing for nine different drugs which resulted in nearly five million distinct analyses of these specimens, since 1980. CompuChem also has analyzed approximately 750,000 urine samples for the presence of two different drugs, resulting in nearly 1.5 million analyses of these specimens, pursuant to its contract with the military. None of the over six million analyses performed for DOT, the military, and other private and public entities has resulted in a false-positive test result. In late 1987, a CompuChem clerical worker incorrectly labeled two samples that belonged to DOT employees. Within hours after the test results were questioned by the medical review officer, CompuChem and the medical review officer had identified and corrected the error. CompuChem was not satisfied with its prompt resolution of the error. As stated in its comment to the NPRM, CompuChem has instituted an additional system of review, by CompuChem personnel and computer checks, to ensure that ".** this one in a million error will not reoccur." Another drug testing firm, PharmChem Laboratories, has conducted over eight million nonmilitary drug tests nationwide. In its statement to the FAA during the public hearing held in San Francisco on June 9, 1988, PharmChem notes that several courts have determined that the GC/MS confirmation test is "virtually 100 percent accurate, assuming that proper chain-of-custody procedures are followed." The FAA does not believe that the issue of "passive inhalation" of marijuana smoke will prove to be a significant issue leading to false-positive test results. First, PharmChem's statement indicates that the DHHS threshold levels that would result in a positive drug test result for the presence of marijuana or marijuana metabolites (to be incorporated completely and without change in the DOT procedures) are set at a level sufficiently high to preclude the possibility of a positive test result based on passive inhalation of marijuana smoke. Second, studies conducted to simulate the conditions that result in passive inhalation have been conducted in artificially-devised and extremely confining areas that were Federal Register / Vol. 53, No. 22.4 / Monday, November 21, 1988 / Rules and Regulations poorly ventilated. Also, in order to obtain a positive test result, testing was conducted immediately after this prolonged and intensive exposure to the marijuana smoke. Based on the FAA's knowledge of these studies, the FAA has concluded that it is highly unlikely that the identical circumstances would be encountered or accurately reproduced outside a laboratory. Finally, the FAA believes that the safeguards that will be provided in the DOT procedures and by the medical review officer (MRO) review process, which are essentially identical to the DHHS guidelines, will preclude misidentification of food substances or licit drugs that might produce a falsepositive test result. The DOT procedures will provide an individual with an opportunity to report any legal or prescription drugs that he or she may be taking at the time of collection of the specimen. The MRO's broad authority to interpret each confirmed positive test result, to evaluate an employee based on the MRO's knowledge of drug abuse disorders, and to verify that a confirmed positive test result is accurate should preclude misidentification of food substances or licit drugs taken in accordance with a valid prescription. In summary, the FAA believes that the two-step testing process, coupled with the DOT procedures, provides a process by which an individual is protected from erroneous false-positive drug test results. Preemployment Testing. Most organizations and individuals do not object to the concept of preemployment testing. AOPA supports preemployment testing at the discretion of the employer. Operators who hire pilots or crewmembers pursuant to short-term contracts believe that a preemployment test is burdensome if required each time a pilot is rehired pursuant to a new contract. These entities suggest that preemployment tests be given only at the time of training or placement on a bid list for contracts. Suburban Airlines has required preemployment testing of all flight crew applicants for over a year. Suburban supports 100 percent preemployment testing of the aviation employees proposed in the NPRM. The Director of the Santa Maria Public Airport District also supports preemployment testing and suggests that preemployment testing be implemented immediately. The Soaring Society of America (SSA) believes that small business employers should have the option of requiring preemployment drug testing as a condition of employment. SSA feels that preemployment testing should be optional because applicants can circumvent detection in a preemployment drug test merely by abstaining from drug use for a short period of time before the preemployment test. FAA Response. The FAA believes that preemployment testing is a necessary component of an effective anti-drug program. Pursuant to the rule, a preemployment drug test is required only when an applicant has been selected for employment in a sensitive safety- or security-related position with the employer. The preemployment testing provision does not require an employer to test each applicant for a sensitive safety- or security-related position. The rule simply states that an employer may not hire an applicant to perform sensitive safety- or securityrelated functions unless the applicant has passed a drug test. Therefore, the employer need only test an applicant before actually hiring the applicant for a sensitive safety- or security-related position. The FAA has revised the proposed rules in ways which should ease the burden on operators who frequently rehire employees pursuant to short-term contracts. The FAA believes that the central issue regarding the frequency of preemployment testing is the continuity of an employee's involvement in an employer's drug testing program. An employer is required to conduct a preemployment test only the first time that an employee is hired pursuant to a contract with that employer so long as the individual remains in the employer's program, even during periods between contracts. The individual, thus, would be subject continuously to drug testing. In addition, so long as an employee is subject to an FAA-approved anti-drug program, another employer may use that employee to perform sensitive safety- or security-related functions. Thus, an individual who participates through a consortium would be able to provide services on a contract basis to multiple employers without having to submit to subsequent preemployment tests or to participate in another employer's drug testing program. If an employee has not been continuously subject to an FAAapproved anti-drug program,.an _ employer would be required to conduct a preemployment drug test. - In the FAA's opinion, it would be permissible for an employer to allow a contract employee to continue in the employer's anti-drug program after termination of a contract. Particularly in the case of an employer who hires employees pursuant to a series of shortterm contracts, both the employer and the employee benefit if the employee is continuously subject to a drug testing 47033 program. The employer could "rehire" the employee at any time but would not be required to give the employee another preemployment drug test. In addition, the employee could perform sensitive safety- or security-related functions for another employer on a temporary basis but would not be required to participate in another employer's anti-drug program or to submit to another preemployment drug test. To the extent that the employee is not covered by an FAA-approved antidrug program, an employer would be required to conduct a preemployment drug test before the employee could be hired by a subsequent employer or rehired by a previous employer. Periodic Testing. AOPA believes that periodic drug testing should not be part of an employer's drug testing program but should-only be conducted based on the reasoned judgment of an aviation medical examiner. RAA supports .periodic testing during medical certification at least once each calendar year. RAA believes that the employee should bear the cost of the periodic test. Federal Express does not oppose periodic testing but believes that it should be unrelated to the FAA medical examination. The AMA opposes periodic drug tests as part of a routine medical examination because compliance with collection and chain-of-custody procedures, such as those contained in the DOT procedures and the DHHS guidelines, would be an undue burden on aviation medical examiners. ATA stated that its association is not convinced that periodic testing effectively deters illicit drug use because of the relative ease with which this test can be circumvented by abstinence. SSA generally does not endorse periodic testing because an employee can avoid detection by relatively short-lived abstinence before any announced periodic test. FAA Response. The FAA agrees with the commenters that announced periodic testing can be circumvented by an employee's abstinence from drug use. However, periodic testing does enable an employer to identify those employees who are so heavily-dependent on drugs that they are unable to abstain from drug use for even a short period of time prior to a periodic test. The FAA has modified the periodic testing requirement of the regulation. Under the proposed regulation, an employee who holds a medical certificate would have been required to submit a specimen for drug testing as part of each medical examination required pursuant to Part 67. The revised 47034 Federal Register / Vol. 53, No..,224/. Monday, November 21, 1988 / Rules and Regulations section makes it clear that an individual is required to submit a specimen for drug testing during the first medical examination of the employee during the calendar year after implementation of the anti-drug program. Therefore, pilots who hold Class I medical certificates, who are required to have periodic medical examinations at 6-month intervals, must be tested only once during one of the medical examinations of the year pursuant to the anti-drug program. The revised section also states that an employer may discontinue periodic testing after the first year of program implementation when the employer has implemented its random testing program according to the implementation schedule and, therefore, is conducting a significant number of random tests. The periodic testing requirement will ensure that all current employees who hold medical certificates will be tested once during the first year of implementation of an employer's anti-drug program; most of the employees who hold medical certificates also will be subject to random selection for testing during part of the first year of implementation. The majority of random testing programs will be operational after the first year of implementation and periodic testing, which is less effective than random testing, will no longer be a necessary component of an employer's anti-drug program. The FAA anticipates that these revisions will provide maximum drug detection capability and ease the transition to a full random testing program. The FAA considers the revision to be appropriate to relieve some of the significant economic and administrative burdens noted by the commenters who believe that periodic testing is an ineffective and ineffective drug deterrent. Random Testing. Most individual commenters oppose random testing for a variety of reasons. Among these reasons is the lack of evidence of drug use or abuse in aviation to warrant random testing, invasion of individual privacy, and violation of constitutionallyprotected rights. AOPA opposes random testing primarily on the basis of the unsettled constitutional issues surrounding random testing and the burden imposed by this testing method on law abiding citizens. AOPA suggests that the FAA delay promulgation of a final rule until the issues raised by random testing are substantially resolved by the Supreme Court in Railway Labor Executives' Association v. Burnley and National Treasury Employees Union v. von Raab (cited previously). AOPA states that, by awaiting any Supreme Court decision, the FAA could ensure that the final rule is in conformity with guidance enunciated in the Supreme Court's opinion in Burnley and von Raab. One commenter submitted comments individually, as national litigation counsel for AOPA, and on behalf of the California Aviation Council and the Orange County Aviation Association. This commenter states that the NPRM is an unconstitutional invasion of privacy and a violation of an individual's procedural due process rights. The commenter believes that the NPRM should be withdrawn to await the Supreme Court's impending decisions. The AMA supported random testing only as part of a comprehensive rehabilitation program. The AMA believes that random testing is not cost effective, is unnecessarily intrusive, and, without confirmation testing, random screening tests are inaccurate. In addition to soliciting comments on the general concept of random testing, the FAA solicited comments on an appropriate random testing rate of up to 125 percent. Several small business entities, including TEMSCO Helicopters, Inc., Henson Airlines, and Tramco, Inc., oppose the random testing requirement based on the financial and administrative burdens associated with a 125 percent testing rate, transportation of employees to the collection site, and replacement of personnel during testing. TEMSCO Helicopters suggests that a random testing rate of 10 percent will enable the industry to determine if there is a drug problem in aviation without overburdening the industry. RAA also believes that a 125 percent random testing rate is overreaching and unwarranted; however, if the FAA proceeds with a random testing provision, RAA suggests that a 50 percent random testing rate is appropriate. Although Suburban Airlines strongly supports random testing, Suburban believes that a 50 percent random testing rate of the employees proposed in the NPRM would relieve the unjustifiable economic burden on a cost-benefit basis. ERA Aviation, Inc., a Part 121 and Part 135 certificate holder operating more than 12 helicopters and 12 airplanes, believes that unannounced random testing is the most effective deterrent to drug abuse. However, ERA questions a requirement to randomly test 125 percent of the employees on an annual basis. ERA believes that random testing of 25 percent to 50 percent of the affected employee groups, coupled with periodic testing, would provide a sufficient deterrent to drug use if the penalties for positive test results were severe. NTSB opposes the random testing requirement of the proposed rules. However, if random testing were included in the final rule, the NTSB believes that a relatively high random testing rate would be a more effective deterrent to drug use. The acting Chairman of the NTSB did not concur with the NTSB's position regarding random testing; the acting Chairman supports random testing provided that the random testing rate is sufficiently high to serve as a deterrent to drug use. ATA, American Airlines, and Delta Airlines support the FAA's mandatory random testing provision because it would provide the maximum deterrent effect to illicit drug use. ATA supports a random testing rate of 50 percent based on a review of Department of Defense and private industry drug testing programs. American Airlines also supports the mandatory random testing provision and a 125 percent random testing rate. A consultant to American Airlines on the issue of drug abuse prevention in the workplace, who submitted an affidavit attached to comments by American Airlines, is convinced that random drug testing is "the only powerful and proven means of detecting drug use and drastically reducing drug use and thereafter preventing further drug problems from occurring." On the other hand, Federal Express states that random testing should be permitted, but not mandated, by regulation. Federal Express states that if the FAA ultimately mandates random testing, carriers should be allowed to choose a random testing rate between 15 percent to 50 percent. Federal Express also believes that carriers should be free to set different random testing rates for different groups of employees. There was almost universal opposition to random testing by unions and organizations representing employees. ALPA, the Transport Workers Union of American (TWU), and the International Brotherhood of Teamsters (Teamsters Union) are adamantly opposed to random testing. ALPA (Council #12) concurs in ALPA's general opposition to random drug testing of professionals in the aviation industry. The Teamsters Union states that a drug testing program is a change in working conditions which, in accordance with Federal labor law, is a mandatory subject of collective bargaining. SSA does not oppose random testing of employees. However, in order to provide a workable and effective anti- Federal Register / Vol. 53, No. 224 / Monday, November 21, 1988 / Rules and Regulations drug program for small business, SSA suggests that entities employing 12 or fewer full-time employees be exempted from the random testing requirement. SSA defines "full-time employees" as those individuals who work for an employer at least 30 hours per week or 5 days per week and have maintained that schedule for at least 90 days. One commenter, who spoke at the San Francisco public hearing on June 9,1988, has been a practicing physician for 24 years and has devoted the past seven years to the exclusive practice of aviation medicine. This commenter has worked regularly with EAP representatives and has been involved with " * * hundreds of airline employees before, during and after treatment for drug and alcohol dependencies." Based on the commenter's extensive experience in drug and alcohol use by aviation employees, he observes that the present system of relying on " * * peer and supervisory identification, and a highly visible employee assistance program," and on a scheme of "preemployment, for-cause and fitness-for-duty drug testing, enables significantly impaired employees to remain in the workforce." Therefore, this commenter concludes that in order to eliminate those remaining risks, "* * * there is nothing more we can do short of random testing." FAA Response. While noting the constitutional issues surrounding the issue of random testing discussed previously, the FAA continues to believe that unannounced testing based on random selection is a fundamental component of an effective drug testing program. Unannounced, random testing has proven to be an effective deterrent to drug use and will provide safety benefits to the aviation community by reducing or eliminating drug use by sensitive safety- or security-related aviation personnel. Unannounced, random testing programs initiated by the military, including the Coast Guard, and private industry show declining drug use, evidenced by a decrease in the number of individuals who test positive for drugs, over the course of the drug testing program. The FAA received many comments regarding the proposed random testing rates. Several commenters suggest a random testing rate of 125 percent because that rate would result in the most significant deterrent to drug use in the aviation industry. However, other commenters who address this issue believe that a 125 percent random testing rate would be excessive and wo-ild impose a significant economic burden, particularly on small aviation businesses. The commenters propose a range of random testing rates starting at 10 percent annually. The majority of the commenters suggest that an annual 50 percent random testing rate for the aviation industry is appropriate. These commenters believe that the 50 percent testing rate accomplishes several goals consistent with the intent of the proposal. In response to the commenters, the FAA has substantially revised the random testing proposal in the NPRM in order to reduce the practical and administrative burdens associated with initiating an unannounced testing program based on random selection of employees. The FAA's approach also is designed to provide a random testing rate that balances cost effectiveness and burdens on employees and employers but still results in an effective and credible deterrent to drug use. For some employers, particularly those with a large number of employees subject to drug testing, it may be a substantial burden to move from no random drug testing of employees directly to random testing of 50 percent of the covered employees. For example, if required to have tested 50 percent of all covered employees by the end of the first year, employers might have to test at rates far above a 50 percent rate toward the end of the year, to make up for lower rates at the beginning of the year. Employers should be permitted to start the program at a lower testing rate and work up to a 50 percent rate as experience is gained and the testing procedure. becomes administratively routine. The FAA does not want to create a situation which might lead to inadvertent mistakes by requiring initial. unannounced testing based on random selection at too high a rate. The final rule, therefore, provides an implementation procedure that would allow employers to phase in unannounced drug testing based on random selection of employees during the first 12 months in which tests are required to be conducted. Employers would not be required to reach an annualized rate of 50 percent until the last test collection of the first year of the program. The total number of unannounced tests based on random selection of employees during the first 12 months of the employer's testing program would have to equal at least 25 percent of the covered employee population. Also, the employer is required to space the tests reasonably throughout the year. This approach will provide a sufficient level of deterrence 47035 to drug use and will permit the employer to phase in the 50 percent rate. Suppose, for example, that an employer has 1000 sensitive safety- or security-related employees. At a 50 percent annual rate, the employer would be required to conduct 500 unannounced tests based on random selection during a year. Under the phased approach, however, the employer could conduct only a few drug tests at the beginning of the program and then gradually increase the number of tests until, by the end of the first year, the annualized rate of 50 percent was achieved. Thus, if the employer's drug testing plan contemplated administration of unannounced tests based on random selection on 12 occasions during the year, the employer would need to collect 42 urine specimens for analysis (500 divided by .12) on the last occasion, but could collect fewer specimens until then. Overall, the employer would have to collect at least 250 specimens for analysis during the first year. In subsequent years, the employer is required to maintain the 50 percent annualized rate for unannounced testing based on random selection of employees. The FAA believes that the final rule provides a moderate, but substantial, level of testing based on random selection that enables an employer to increase random testing gradually during the first year of program implementation. During subsequent years of the program, the employer must maintain an annualized rate of 50 percent of the covered employees. In order to determine the appropriate number of employees that must be tested to reach the appropriate "annualized rate" for the random testing program, the employer shall refer to the number of employees subject to the rule at the beginning of a calendar year. At this time, the FAA believes that this phased program, ultimately reaching a testing level equivalent to 50 percent of the covered employees, will provide a sufficient deterrent to drug use without imposing an undue economic or administrative burden on employers and employees subject to the requirements of the regulation. In addition, the program will produce a sufficient data base at different annualized rates and testing levels for the FAA to analyze the scope of any drug problem in the commercial aviation industry generally or within any particular sector of the commercial aviation community. Analysis of the random drug testing data submitted by an employer will allow the FAA to determine if the 47036 Federal Register / Vol. 53, No. 224 / Monday, November 21, 1988 / Rules and Regulations random testing program should be revised in any manner. The phased program and the final 50 percent random testing rate is consistent with the random testing program currently applicable to safety- and security-sensitive employees of the Department of Transportation. DOT's random testing program began in September 1987; the random testing rate has gradually increased and will reach an annualized rate of 50 percent by October of this year. Data from September 1987 to the present show that the current detection rate found as a result of DOT's random drug testing program is 0.83 percent; data from February 1987 to the present show that the current detection rate for FAA and DOT's periodic (e.g., scheduled) testing program is 0.012 percent. According to the provisions of the final rule, all employers are required to randomly select a sufficient number of employees to enable the employer to conduct unannounced testing of employees who perform sensitive safety- or security-related duties for the employer at the appropriate rate during the calendar year. In order to conduct enough tests to reach the required percentage, an employer may be required to select a number of employees who perform a sensitive safety- or security-related functions for unannounced testing that is in excess of the actual number to meet the required percentage. Selection of a greater number of employees enables the employer to reach the appropriate annualized rate despite absences due to vacations and medical leave or absences due to an inability to reach a collection site resulting from travel or duty requirements. If a consortium has been established among employers or operators, the consortium would be required to select and to test the appropriate rate of the aggregate total of employees subject to the final rule who are covered by the consortium. The testing rate of the consortium will be attributed to each employer participating in the consortium. In the FAA's opinion, the consortium's testing rate can be attributed to each participating employer, although less than the appropriate percentage of the employees of a particular employer has been tested during a calendar year, without significantly decreasing the deterrent effect of a random testing program. An employer or consortium that develops a random selection scheme involving preliminary selection criteria, such as geographical zones, must specify these schemes or variations in the employer's anti-drug plan. The FAA realizes that these variations may provide administrative ease for an employer. However, the FAA must review these variations to ensure that the scheme does not dilute the required annualized rate required by the final rule. The FAA received comments from small aviation businesses regarding the difficulty of testing a large number of employees on a random basis during the first year of implementation of the rule. In response to these comments, the FAA substantially revised the provisions of the proposed rule. Certain Part 135 certificate holders whose total workforce includes 11 to 50 sensitive safety- or security-related employees are given additional time to submit a random testing plan and to ensure that the appropriate percentage of the sensitive safety- and security-related employees are subject to unannounced drug testing on a random selection basis during a calendar year. The FAA encourages these employers to develop a comprehensive random testing plan as soon as possible. As discussed later, Part 135 certificate holders that employ 10 or fewer covered employees and those individuals or entities listed in § 135.1(b), who are otherwise exempt from the requirements of Part 135 but are included in the final rule because they are engaged in operations for compensation or hire, are given additional time to develop and implement an anti-drug program that includes random testing. The FAA notes that the final rule does not restrict the ability of these employers to submit a random testing program, and to implement that program, earlier than the timeframes contained in the final rule. Some commenters address the issue of the difficulty in developing an efficient and successful random testing program. The FAA notes that the rule provides flexibility to an employer to begin the random testing program at a lower random testing rate so long as the required percentage of covered employees have been selected on a random basis and have been tested by the end of the first year after approval of the employer's anti-drug program or random testing plan. For example, an employer may test small increments of employees at the beginning of a period and may test a large percentage of employees at the end of the same period to achieve the annualized rate that is required by the final rule. PostaccidentTesting. AOPA supports postaccident testing if it is conducted by the NTSB. AOPA believes that postaccident testing should not be a part of an employer's drug testing program and should not be conducted by the FAA. The NTSB comments that the 24-hour period provided for postaccident testing is excessive. The NTSB recommends that the FAA specify a maximum period of four hours for collection of a postaccident drug test and provide an appropriate penalty for failure to collect the specimen within the 4-hour period. The NTSB believes that delays of more than four hours in sample collection impair detection of a drug and its "psychoactive component(s)" in blood samples, particularly substances such as cocaine, marijuana metabolites, some amphetamines, and phencyclidine (PCP). The NTSB also suggests that blood testing is the preferable method for postaccident testing and suggests that the FAA permit this method of testing for the presence of drugs after an accident. ATA also suggests that postaccident testing should be conducted within 4 hours after an accident and, in no case, later than 12 hours after an accident. ATA recommended that the NTSB's definition of "incident" should be added to the postaccident testing provision to cover situations when an aircraft is empty or when personal injury or physical damage is less severe than specified in the postaccident testing provision. ATA also believes that postaccident testing should be conducted unless a supervisor determines that an employee's drug use was not a contributing factor in the accident. FEIA believes that postaccident testing is "wasteful and intrusive" unless the accident clearly is caused by the person to be tested and there is individualized probable cause to believe that the employee was impaired at the time of the accident. SSA does not completely endorse postaccident testing based on a variety of practical considerations that SSA believes are unresolved In the regulation as proposed. However, SSA states that postaccident testing, after an NSTBdefined accident, of any employee working for a small business should be conducted as deemed feasible by the employer. SSA believes that postaccident testing should be conducted within 24 hours if the employer determines that testing is feasible and appropriate. Also, if the employer determines that testing is not feasible, the FAA may request an explanation from the employer during the routine investigation of the accident. FAA Response. In the NPRM, the FAA proposed that postaccident tests be conducted within 24 hours after an accident based on the possibility that Federal Register / Vol. 53, No. 224 / Monday, November 21, 1988 / Rules and Regulations difficulties may arise after an accident in transporting an individual to a collection site or bringing a drug testing kit to the scene of the accident. The FAA is aware that extended delays in sample collection and testing after an accident may result in deterioration or elimination of a drug or a drug metabolite from a person's system. Recognizing these difficulties and concerns, the FAA has modified the postaccident testing provision. Under the final rule, an employer must conduct postaccident testing of an employee as soon as possible after the accident but in no case later than 32 hours after the accident. Selection of this ,time period comports with the DOT's postaccident drug testing program for DOT employees, which provides a maximum of 8 hours to determine if an employee is required to be tested and an additional 24 hours to actually obtain a sample for testing. The FAA strongly encourages employers to promptly determine if an employee is subject to postaccident testing, particularly in cases where there is little or no uncertainty that an employee's performance was a contributing factor in the accident. The FAA intends to vigorously enforce the regulation where there is unreasonable delay in determining whether an employee should be tested under this provision or where there is unreasonable delay in testing after the determination to test is made. Although several commenters who address the. issue suggest time periods of less than 24 hours, it is the FAA's opinion that a maximum period of 32 hours is a workable and reasonable accommodation that is appropriate for the aviation industry. The NTSB's suggestion that the FAA require an employer to conduct postaccident testing within four hours after an accident is based on the timesensitive nature of toxicological testing of blood samples. On the other hand, urinalysis testing does not involve the extreme time-critical considerations associated with collection and testing of blood samples. In the FAA's opinion, postaccident urinalysis testing is sufficient at this time to provide an indication of an individual's drug use that may have been a causal factor in an aviation accident. Also, the FAA proposed only urine testing in the NPRM, specifically excluding blood testing as an option, for all drug tests that would be conducted under the anti-drug program. Therefore, the FAA considers the NTSB's suggestion to be beyond the scope of the notice and the FAA has not adopted NTSB's suggestion to permit postaccident testing by collecting a blood sample. In the aviation context, the significant proportion of serious accidents involving fatalities to crewmembers provides data with respect to drug involvement in those accidents. In the FAA's judgment, extending full toxicological testing to surviving crewmembers is not warranted at this time. Presently, the FAA is not convinced that including the NTSB's definition of "incident" as a trigger for drug testing is warranted. As discussed below, the FAA believes that the revisions to the section providing for testing based on reasonable cause will adequately address circumstances that might qualify as "incidents." The current provisions allow sufficient, but limited, latitude to an employer to determine whether an employee should be tested following an incident or an accident not covered by the NTSB's definition of accident. Although several commenters suggest that the FAA expand the scope of the postaccident testing provision, the FAA believes that the postaccident testing provision, limiting testing to only those employees whose performance may have been a cause of the accident, is appropriate. The FAA believes that it is inappropriate to require postaccident testing of an employee whose performance could not have been a cause of the accidentmerely because that employee happens to have been onboard or involved with an aircraft involved in an accident. Testing Based on Reasonable Cause. The NTSB suggested that the FAA include "incidents," as defined by the NTSB's rules, as events that would trigger reasonable cause testing. RAA agrees with the requirement that two supervisors, one with training in the symptoms of drug abuse, must concur in the decision to test an employee based on reasonable suspicion of drug use. RAA believes that each carrier should determine the conditions which constitute reasonable suspicion. FEIA also believes that two supervisors, trained to detect symptoms of drug abuse, must concur in all decisions to test based on probable cause. ATA suggests that only one supervisor be required to trigger testing of an employee based on reasonable cause. In addition, ATA states that supervisors should not be required to have specialized training for the purpose of determining when reasonable cause exists to test an employee. Tramco, Inc. believes that the proposed circumstances that would 47037 support a decision to test based on reasonable cause are too restrictive. Tramco believes that an employee's attendance patterns, tips from coworkers, "error rates," and other indirectly observable indications should also trigger testing based on reasonable cause. Tramco currently uses these triggers in its drug testing program; Tramco believes that the FAA's criteria will not result in detection of possible drug users because it is limited to physical and observable indices of gross impairment. SSA supports "for-cause" testing, as the employer deems necessary and feasible, if testing is conducted pursuant to the DHHS guidelines. IAM and TWU believe that the criteria that would trigger testing based on reasonable cause are ill-defined. These organizations believe that testing based on reasonable cause will be a tool for employee harassment; these organizations suggest that supervisory personnel should be trained to recognize the gymnptoms of drug impairment or that at least one of the supervisors making the determination to test should be someone other than the employee's immediate supervisor. The Teamsters Uniofi and LAM believe that decisions and determinations related to testing based on reasonable cause should be documented and supported in a written report. The Newton Psychological Centre submitted a "basic identification profile," developed to aid supervisors of the Philadelphia Electric Company in identification of employees who may not be fit for duty. The profile is used to detect early warning signs of problems based on medical or psychological problems. The profile sets forth behavioral, emotional, physical, biological, and cognitive cues related to the use of marijuana, cocaine, alcohol, barbiturates, amphetamines, and heroin, or cues related to anxiety or depression. The company's'policies regarding alcohol and substance abuse, job performance warning signs, and counseling and confrontation guidelines are printed on the profile. FAA Response. As stated in the FAA's response to comments submitted on the postaccident testing provision, the FAA is not including a "postincident" testing provision at this time. However, the circumstances under which a supervisor could-require an employee to submit to a test based on reasonable cause have been modified in the final rule. Based on the comments submitted, particularly by employers who have existing "reasonable cause" testing programs, the FAA has expanded 47038 Federal Register-/ Vol. 53, No. 224 / Monday, November 21, 1988 / Rules and Regulations the list of circumstances that might trigger testing under this provision. Evidence of repeated errors on the job, regulatory or company rule violations, or unsatisfactory time and attendance patterns, if coupled with a specific, contemporaneous event that indicates probable drug use, could provide additional, cumulative evidence to support a decision to test an employee based on reasonable cause. As proposed in the NPRM, an employer is permitted to test a specimen provided by an employee, collected pursuant to a reasonable cause determination, for the presence of any drug or drug metabolite listed in Schedule I or Schedule II of the Controlled Substances Act. The employer may test for these drugs, as part of the employer's approved antidrug program, if the employer has specific approval from the FAA to include these controlled substances in the employer's anti-drug program. In addition, the testing for these additional drugs must be conducted in accordance with the DOT procedures to be codified in 49 CFR Part 40. The FAA believes that the provision requiring two supervisors, one of whom has specialized training in detecting the symptoms of drug use, to concur in the decision to test an employee based on reasonable cause is appropriate for large companies. However, the FAA has revised this section of the rule in order to address the legitimate concerns of small employers, many of whom do not have more than one supervisor employed at the company. For companies that employ 50 or fewer employees who perform a sensitive safety- or security-related function, the rule specifies that only one supervisor is required to make the determination that would trigger testing of an employee based on reasonable cause. The FAA also has clarified the annual EAP training requirements for supervisors to make it clear that supervisors who make reasonable cause determinations must have specific training that will enable them to assess and demonstrate the basis for testing based on reasonable cause. Testing after Return to Duty. ATA believes that the FAA should not set regulatory standards governing postrehabilitation testing. ATA, other employer and employee organizations, and many individual commenters believe that a schedule for postrehabilitation testing should be made by management in consultation with persons involved in an employee's rehabilitation program. In order to ensure continued disassociation from drugs, RAA supports a requirement for monthly screening, for 12 months, after an employee has completed rehabilitation. APFA believes that a schedule for postrehabilitation testing should be determined by an employee's EAP counselor and should be limited to a reasonable period of no more than one year. AFA states that decisions regarding testing after rehabilitation should be the responsibility of the individual treatment facility used by the employee. FAA Response. The FAA agrees with the commenters that suggest that unannounced testing during any rehabilitation and before an employee returns to duty should be determined by the persons involved in the employee's rehabilitation program. Decisions regarding the frequency of testing during any rehabilitation program appropriately lie with those individuals who are familiar with and involved in any employee rehabilitation program. However, unannounced testing after an employee returns to duty is critical to ensure an employee's continued disassociation from drugs. The FAA believes that it is essential to require unannounced.testing of employees who have returned to duty in a sensitive safety- or security-related position for an employer after failing a drug test given by an employer or after refusing to submit to a drug test required by the final rule. This type of testing is the most effective means of ensuring that an employee remains drug free while performing commercial aviation duties. Moreover, once an employee has returned to duty, the FAA and the employer have a substantial interest in requiring that employee to be drug free while performing sensitive safety- or security-related duties in commercial aviation. Therefore, the FAA has included a provision in the rule requiring an employer to monitor an employee" who has returned to duty by providing unannounced drug testing, pursuant to a schedule determined by the MRO, for not more than 60 months after the employee has returned to duty. The rule also provides that an employer must conduct unannounced testing of an individual who is hired to perform a sensitive safety- or securityrelated function after failing a drug test or after refusing to submit to a drug test for another employer and who has not previously been subject to return-to-duty testing. This section of the final rule addresses situations where an individual fails a drug test or refuses to submit to a drug test but does not return to duty for an employer. In this case, any subsequent employer would be required to test an individual for not more than 60 months after the individual is hired to ensure that the individual is drug free. In the FAA's opinion, if an employee failed a drug test given by a previous employer but returned to duty with that employer in accordance with the requirements of this final rule, a subsequent employer would not be required to reevaluate a prior employer's return-to-duty decision. An employer would be required to test this individual prior to employment but would not be required to monitor the employee after the employee was hired. Pursuant to the final rule, the medical review officer (MRO) has the discretion to determine the appropriate level of unannounced testing for an individual or an employee. The FAA believes that it is appropriate to allow the MRO to tailor the frequency of this type of testing to adequately address differences between individuals, the level and type of drug use, and any treatment or counseling program. The FAA notes that the MRO also is require to ensure that an employee has been tested for drugs, in accordance with the procedures in the final rule and the DOT procedures, before being hired or returning to duty. In most cases, the MRO will not be required to arrange testing for an employee because the employee will have taken a drug test as part of any employee rehabilitation program. However, the MRO must ensure that an individual or employee has been tested, in accordance with the procedures of Appendix I to Part 121 and the DOT procedures before the MRO can make a recommendation that an individual be hired or than an employee be returned to duty after failing a drug test or after refusing to submit to a drug test. In the FAA's opinion, a preemployment drug test would suffice to satisfy this requirement of the final rule. Employee Assistance Programsand Rehabilitation.The FAA sought comment in the NPRM regarding three different EAP options. These options specified the circumstances under which an employee would be given the opportunity to seek rehabilitation. Option 1 would allow all employees to seek an opportunity for rehabilitation regardless of how the employee's drug use was detected. Option 2 would allow most employees, except those employees whose drug use was detected as a result of postaccident testing or testing based on reasonable cause, to seek an opportunity for rehabilitation. Option 3 would only allow employees who volunteer to seek rehabilitation and Federal Register / Vol. 53, No. 224 /.Monday, November 21, 1988 J Rules and. Regulations would exclude all employees whose drug use was detected by any other means. Under all three options, an employer would not be required to offer an opportunity for rehabilitation or to provide job security to any employee who was identified as a drug user on the job. Employer organizations tend to support the third option proposed in the NPRM regarding rehabilitation and reemployment or job security opportunities that should be offered to employees. Part 121 certificate holders, as generally noted by ATA, support the third option. For example, Delta Airlines believes that the most effective deterrent to drug use is the threat of losing a job. On that basis, Delta states that mandatory rehabilitation and an opportunity for continued employment would diminish the effectiveness of the rule. American Airlines disagrees with ATA's Ii6sition and supports the first option. Federal Express supports the third option if the FAA mandates rehabilitation. The Helicopter Association International (HAI) states that requiring an employer-sponsored rehabilitation program whenever required testing of an employee produces a positive drug test result places an unwarranted burden on the employer. HAl believes that an employer should have the right to dismiss an employee if any drug test conducted during employment produces a positive test result. HAI states that the employer should have the ability to decide which employees, based on the "value" of the employee to the organization, would be offered an opportunity for rehabilitation. Small Part 135 certificate holders generally state that an employer should have the right to fire any employee who uses drugs and feel that an opportunity for rehabilitation should not be offered to any employee who uses drugs. These small employers base their position on the potential liability to the company of rehiring a known drug user, the expense to the company of holding the employee's job open, or replacing an employee on a temporary basis, during rehabilitation. The AMA reaffirmed its long-standing support of employment-based treatment and assistance programs for employees with alcohol or drug problems. The AMA believes that the FAA should require an employer to provide one opportunity for rehabilitation to any employee who voluntarily enrolls in an EAP and to any employee who is identified as a drug user through testing. NTSB generally concurred in the concept of requiring an employer to provide EAP services to employees. The NTSB recommended that employers be required to offer one opportunity for rehabilitation to employees who volunteer for an EAP and for employees who are identified as drug users through any type of drug testing. Most small business entities, TEMSCO Helicopters, Inc. and Overseas Air Transport Corporation for example, object to a regulatory provision that would require an employer to provide job security to an individual enrolled in rehabilitation. This objection is based on the financial burden of keeping a job open for an employee who is unable to perform his or her duties and the elimination of an employer's discretion to fire an employee who uses drugs. RAA believes that an employee who has successfully completed rehabilitation, as determined by the head of the rehabilitation program and airline management, should be offered an opportunity to return to duty. Executive Air Fleet (EAF), a Part 135 certificate holder with 200 employees subject to testing, would support job security for an employee who voluntarily sought rehabilitation and who had three to five years of service with the company. SSA also believes that an employee's length of employment may be a reasonable factor to consider when specifying an employer's obligation to retain or rehire an employee participating in rehabilitation. SSA also states that holding an employee's job open during inpatient rehabilitation will greatly complicate small business operations for an unknown time period. Henson Airlines states that, under its existing program, employees will be fired as a result of a positive alcohol or drug test. ERA Aviation, Inc. strongly objects to any Federally-mandated rehabilitation and rehire requirement. ERA Aviation objects to the cost of providing EAP services, but more important, objects to assuming the potential liability problems that could result from rehiring a known user of illegal substances even if that employee has successfully completed a rehabilitation program. Several small operators, including TEMSCO Helicopters, Inc., object to the requirement to provide an opportunity for rehabilitation to employees identified as drug users. Henson Airlines provides an opportunity for rehabilitation only to employees who voluntarily enroll in rehabilitation. RAA supports these views. Organizations such as the American Association of Airport Executives (AAAE) and ATA believe that an opportunity should be offered only to employees who volunteer for rehabilitation. SSA states that there should be no requirement that a small business retain or rehire any 47039 employee who tests positive for drugs as a result of any unplanned drug test, including postaccident or for-cause testing. ATA believes that limiting rehabilitation and reemployment to volunteers has the dual effect of making safety the industry's highest priority and containing the costs associated with rehabilitation. AAAE believes that any employee who tests positive for drugs should be dismissed immediately. AAAE comments that employers and employees should be free to negotiate broader rehabilitation and reemployment rights as part of a collective bargaining agreement. Labor organizations are strong supporters of broad EAP opportunities and services. TWU and FEIA believe that all employees who test positive, regardless of the reason for testing, should be given at least one opportunity for rehabilitation. FEIA supports the requirement for at least one rehabilitation opportunity because a positive drug test is not proof of impairment on the job. The Teamsters Union believes that negotiated, clientspecific rehabilitation programs should be available to employees who volunteer and for employees who test positive on one occasion. Labor organizations comment that all rehabilitation costs should be paid by the employer either directly or as part of an employee benefit or insurance package. TWU concurs with this position, insofar as it relates to the first positive test result, unless the employee has engaged in conduct that would otherwise justify suspension or discharge under an applicable collective bargaining agreement. ALPA states that there is no valid reason to limit access to an EAP only to employees who volunteer for rehabilitation. Based on experience in the HIMS program, only 15 percent of the pilots treated for alcoholism were self-referred; 85 percent of the pilots were discovered by the union or management, or both. ALPA believes that rehabilitation should be made broadly available to any employee who could benefit from an EAP and that, in some cases, a second opportunity for rehabilitation may be appropriate. ALPA urges the FAA to revise the proposed regulation to require employers to pay the cost of rehabilitation programs that are mandated by the regulation. ALPA believes that traditional EAP techniques that are tailored to a specific population, such as the HIMS program, will be more effective in deterring drug use than the anti-drug program proposed in the NPRM. During the 15-year period 47040 Federal Register / Vol. 53, No. 224 / Monday, November 21, 1988 / Rules and Regulations that the HIMS program has been in effect, 800 pilots have participated in rehabilitation for alcoholism yielding a long-term success rate of 93 percent. ALPA states that the average "off line time" for pilots involved in the HIMS program is approximately 120 days: 30 days for treatment; 30 days for aftercare treatment, observation, and processing; and 45 to 60 days for processing of an FAA application. The recovery rate for pilots who participate in one rehabilitation opportunity is 85 percent. Of the 15 percent of the pilots who suffer a relapse after the first treatment, approximately 50 percent are successfully treated in their second rehabilitation opportunity. FAA Response. Most comments regarding rehabilitation deal with the issue of whether, and under what circumstances, to offer rehabilitation and to provide job security to an employee and the length of any employee rehabilitation period. The FAA carefully considered the various arguments submitted by the commenters on the issue of EAP services and rehabilitation opportunities for employees. The FAA understands, and considered, the arguments raised in defense of broad rehabilitation opportunities and job security for aviation personnel who use drugs. However, the FAA reviewed the two options that included provisions providing broad rehabilitation opportunities and job security to employees whose drug use was detected through testing under the final rule. Many of the commenters oppose rehabilitation opportunities and job security for employees who fail to discontinue drug use and wait to be detected by testing. The FAA agrees with these commenters and believes that a strong message must be conveyed to drug users that the use of drugs is unacceptable in the aviation industry. The FAA's primary duty, pursuant to statutory mandate, is to consider the adverse safety consequences surrounding the issue of drug use by senstivie safety- and security-related aviation personnel. On this basis, the FAA has determined that employers should not be obligated to offer an opportunity for rehabilitation or to provide job security to employees who fail a drug test or who use drugs on the job. The FAA understands that broad rehabilitation opportunities and job security for employees, without regard to the manner of detection of drug use, may help those employees who are unable to help themselves. But, the FAA believes that it is inconsistent with the agency's safety responsibilities to promote the message that drug use in the aviation industry will be tolerated until an individual's drug use is detected through testing. The FAA believes that it is inappropriate to place the agency and an employer in the anomalous position of allowing any employee who uses illegal drugs to work in a sensitive safety- or security-related position and whose drug use may adversely affect aviation safety. Rather, the FAA believes that it is appropriate and consistent with its statutory safety mandate to prohibit an employee who fails a drug test, who refuses to submit to a drug test, or who uses drugs on the job from acting in a sensitive safety- or security-related position. The FAA is convinced that the comprehensive testing program of sensitive safety- and security-related employees, combined with an employee assistance program to educate and train all personnel, is consistent with the statutory duty to promote aviation safety and will reduce any drug use in the aviation community. The FAA also carefully reviewed the third option presented in the NPRM that would provide an opportunity for rehabilitation and job security to an employee who admitted his or her drug use and who volunteered for rehabilitation before being detected through drug testing. However, in the FAA's opinion and as noted by the commenters, there are several issues related to employee rehabilitation and retention or reemployment benefits that must be considered in development of. the final rule. For example, the term "rehabilitation" generally means the period of time during which an employee is receiving treatment or counseling for a drug problem. The length of any rehabilitation period is dependent on several factors such as the availability and enrollment period of rehabilitation services, the length and extent of treatment for the level of use and the type of drug used, collection and analysis of tests given during rehabilitation, and the review process that may lead to a recommendation to return to duty in a sensitive safety- or security-related position. The term "rehabilitated" generally means that an employee is determined to be drug free and, based on the employee's progress and prognosis during rehabilitation, the employee may return to work. The fact that an employee has returned to work does not mean that the employee is exempt from follow-up or aftercare treatment and counseling. The FAA is aware of the wide variety of rehabilitation programs that vary both in the length of treatment and type of treatment depending on the substance used and the availability of rehabilitation and treatment services. One standard rehabilitation and treatment program, generally necessary for those individuals who require intensive inpatient care followed by outpatient care and counseling sessions, specifies 28 days of inpatient care. Other programs may involve shorter periods of time for inpatient care, may involve outpatient treatment only, or may involve a combination of inpatient and outpatient care of varied duration. For example, some treatment programs may require three to four sessions, given on two or three nights a week, over a six to eight week period and followed by less frequent meetings or counseling sessions. Other treatment programs might involve individual or group counseling sessions on a weekly basis, over a period of one year or more. An additional factor that affects the length or treatment or rehabilitation is the availability of private or community services in a particular area. The FAA reviewed these variables to determine if a timeframe for voluntary rehabilitation and job security could be developed and included in the final rule. The FAA carefully considered the comments from many aviation businesses that oppose any regulatory requirement to offer rehabilitation and to retain or rehire any employee who admits to illegal drug use. The commenters base their objections on several factors including elimination of an employer's discretion to terminate an employee; undue complication of operations due to potential extended absences of employees enrolled in rehabilitation; and negation of an employer's ability to tailor rehabilitation opportunities and job security to a particular employee population. The most strenuous objections are based onthe substantial and unwarranted burdens, both administrative and financial, associated with rehabilitation and job security for employees. Based on financial information submitted by the commenters, it appears that expenses of rehabilitation and job security opportunities as proposed would seriously affect large aviation entities and would probably overwhelm small companies. After review of the considerable variables in treatment and the extensive arguments presented by the commenters, the FAA concluded that a reasonable accommodation of burdens on employers who may not be able to absorb employee absences and realistic opportunities for employee rehabilitation can not be imposed in the Federal Register / Vol. 53, No. 224 / Monday, November 21, 1988 / Rules and Regulations abstract. Thus, the FAA does not agree with the commenters who state that the FAA should specify an opportunity for rehabilitation and the amount of time during which an employer is required to provide job security for an employee enrolled in rehabilitation. Many employers in the aviation industry currently offer rehabilitation opportunities and job security benefits to employees. The FAA anticipates that those employers will continue to offer these opportunities and benefits to employees and that other employers may elect to include these components in any negotiated employee benefit package. Because many aviation entities have resolved the relative administrative, personnel, operational, and financial issues that surround employee rehabilitation and job security requirements, the FAA believes that the aviation industry is able to design appropriate programs and services for its employees. The FAA believes that, in light of the variables and burdens addressed above, issues regarding an adequate amount of time for rehabilitation, an appropriate amount of time to receive a recommendation to return to duty in a sensitive safety- or security-related position, and job security matters, are best addressed in the specific employment context. Thus, an employer is not required to offer an opportunity for rehabilitation, to provide job security, or to provide the resources for rehabilitation to any employee. At the same time, employers may offer these opportunities and benefits to employees; the FAA urges employers to consider the experience of employers who have developed rehabilitation programs. The final rule does not prohibit an employer from reassigning an employee to a position that does not involve the performance of sensitive safety- or security-related duties. The final rule also does not dictate whether an employee is required or permitted to use vacation time, sick leave, or leave without pay in order to accommodate the employee's time away from his or her sensitive safety- or security-related position. The FAA believes that issues such as termination, reassignment, hiring of temporary employees to fill a position, or policies regarding an employee's absence from a position, are issues that are appropriately the subject of employer and employee negotiation or collective bargaining. The NPRM did not propose to require an employer to pay for an employee's rehabilitation and final rule also does not address this issue. Indeed, since an employer is permitted to terminate an employee who fails a drug test or who refuses to submit to a drug test, and such employee does not have a right to return to duty for that employer, this issue is not relevant to the final rule. However, the employer may cover an employee's rehabilitation expenses through an employee benefit package, insurance coverage, or as a matter of collective bargaining negotiated between the employer and the employee. The FAA considers these areas to be a matter between employers and employees and, as such, are left to the discretion of the employer or to be negotiated during collective bargaining. EAP Education and Training Programs.ATA states that the FAA should not specify the details and contents of an employer's EAP. The Teamsters Union believes EAP services should be negotiated between labor and management and that rehabilitation programs should be client-specific. ALPA believes that EAP services should be tailored to be specific employee population as the HIMS program is tailored to pilots in commercial aviation. Various labor organizations conclude that EAPs, instead of mandatory testing, are the preferable method to conduct an anti-drug program. AFA also urges the FAA to separate the administration of any drug testing programs, if mandated at all, from administration of an EAP. The FAA received considerable data in response to the ANPRM and the NPRM regarding the availability of EAP services. Some of these commenters included specific, existing EAPs that are recommended by the industry. The Association of Labor-Management Administrators and Consultants on Alcoholism, Inc., (ALMACA) submitted an extensive, recommended industry EAP in response to the ANPRM. Although most commenters think that EAPs are valuable, employer and employee organizations differ on the mechanics and content of an EAP education and training component. Labor unions generally favor broad EAP services. The majority of employer organizations favor EAPs that are designed to meet the specific needs of the company and oppdse regulatory action by the FAA in this area. FAA Response. The FAA believes that an employer should have the ability to design an EAP that would best serve its employees. The ability to tailor an EAP is particularly important for small aviation employers who may not have the financial and administrative resources to support a companysponsored EAP. Therefore, the FAA has made no changes to the proposed minimal EAP education requirements. However, the FAA has revised the EAP 47041 training requirements. The FAA deleted the minimum requirement of 60 minutes of annual training for all employees. The FAA retained the 60-minute training requirement for supervisors who will make determinations to test an employee based on reasonable cause. The FAA believes that it is appropriate to require a full 60 minutes of initial training for presently-employed and newly-hired supervisors making reasonable cause determinations because of the need for increased awarness and recognition of signs that may indicate drug use. The employer has the discretion to determine the reasonable recurrent training for supervisory personnel who have the authority to make reasonable cause determinations. The FAA believes that this flexibility will enable employers to address specific issues or needs that may arise as a result of the employer's anti-drug program. The rule permits an employer to develop and provide these minimum services as part of an internal program or the employer may contract with community agencies or other aviation companies to provide these services to employees. The employer is permitted to provide additional education and training, beyond the minimum requirements of the rule, to its employees. The FAA believes that employers will not have substantial difficulty developing education and training programs for employees because of the significant number of model EAPs submitted to the FAA in response to the ANPRM. Small Aviation Entities and Businesses. The National Air Transport Association (NATA) represents numerous Part 135 certificate holders in the aviation industry. NATA states that the anti-drug program would have significant cost impact on Part 135 certificate holders and, particularly, small aviation operators. NATA recommends that Part 135 certificate holders, with 100 or fewer covered employees should be excluded from the requirement to submit and implement an anti-drug program. A number of other small Part 135 certificate holders responding to the NPRM also argue for exclusion from the anti-drug program. AOPA urges the FAA to exempt from the rule operators and their employees who currently are exempt from the requirements of Part 135. AOPA contends that these operators are invariably small businesses who would be unable to withstand the financial and administrative burdens of the proposed regulations. Several commenters involved in single pilot-single aircraft Fdeivil'Reg1ster / Vol. 59, No. 224 / Monday, November 21, 1988 / Rules and Regulations ,470)42 4 42 F iam~ReII e / o operations noted the difficulty of complying with most of the provisions of the proposed rules. Atlantic Aero, Inc., a fixed based operation employing more than 100 people, and Sunwest Aviation support efforts to address the drug problem but state that modifications to the proposal are necessary to avoid an unjustified administrative and financial burden on small operators. SSA feels that the proposed anti-drug program is inappropriate for small businesses that rely on student instruction as the economic base of activities or for certified flight instructors acting as independent contractors. SSA believes that the FAA has failed to account for the practical differences between large corporate entities and small businesses. SSA suggests that the FAA develop four separate anti-drug programs that would address the particular needs and concerns of Part 121 certificate holders, Part 135 certificate holders, flight schools, and small businesses or independent contractors. A commenter speaking as national litigation counsel for AOPA and on behalf of the California Aviation Council and the Orange County Aviation Association, conveys the concerns of flight instructors, small fixed base operators, banner towers, crop dusters, and other small aviation entities that do not provide scheduled air carrier service who are affected by the proposal. This commenter notes that the NPRM is an unwarranted, overreaching invasion of the domestic aviation community's right to be free from governmental intrustion because of the lack of evidence of any drug problem among commercial aviation professionals. The commenter states that this lack of evidence supports the history or responsible self-regulation by the commercial aviation community. The National Association of Flight Instructors (NAFI) states that the antidrug program proposed in the NPRM is tailored for a large aviation organization and, therefore, is not appropriate for a small organization or a freelane flight instructor that is not employed by any company. NAFI believes that testing of a flight instructor each time that instructor performs flight instruction duties will be impossible. In addition, NAFI is concerned about the quality and reliability of laboratory analysis; the constitutionality of drug testing; and the administrative and economic burden on small entities related to EAP services, MRO requirements, and job security for employees enrolled in rehabilitation. Two individual commenters believe that sole-proprietorships and businesses that I53INII 2 /Ionay Noeme 21 employ 10 or fewer employees should be excluded from any requirement to implement an anti-drug program. FAA Response, The FAA understands the economic and practical concerns expressed by Part 135 certificate holders as well as those entities or individuals, listed in § 135.1(b), who are otherwise exempt from the requirements of Part 135 but are affected by the regulation because they are engaged in operations for compensation or hire. For the purposes of the requirements of the antidrug program, the FAA has tailored the final rule in an attempt to accommodate small aviation entities, particularly those Part 135 certificate holders who employ 50 or fewer employees who are covered by this final rule and those entities or individuals, listed by this final rule and those entities or individuals, listed in § 135.1(b), who are otherwise exempt from the requirements of Part 135 but are included in the comprehensive anti-drug program because they conduct operations for compensation or hire. The FAA believes that it would be counterproductive to the goals of the anti-drug program to impose requirements on small aviation entities who would be unable to comply with them because of substantial financial, administrative, and logistical difficulties. The vast majority of the difficulties are associated with the requirements of implementing a random testing program and providing rehabilitation programs and services to employees. Therefore, the FAA has revised the proposed rule to provide a tiered implementation plan that would allow small aviation entities to develop and implement a comprehensive antidrug program, over specific time periods, in accordance with a schedule determined by the FAA. The language of the rule does not prohibit an employer from implementing its anti-drug program sooner than required by the FAA's schedule if the employer is able to comply with the rule requirements and the provisions of its anti-drug program at an earlier date. Part 121 certificate holders and Part 135 certificate holders that have more than 50 covered employees, and contractors to these certificate holders, will be required to follow the schedule that was proposed in the NPRM with one exception. As proposed, these employers must submit an anti-drug plan to the FAA not later than 120 days after the effective date of the rule and must implement the anti-drug program not later than 180 days after approval of the anti-drug program by the FAA. However, these employers are required to implement preemployment testing of I188I Rue n euion applicants for sensitive safety- or security-related positions not later than 10 days after approval of the employer's anti-drug plan by the FAA.,The FAA believes that it is appropriate to require accelerated implementation of preemployment testing for these employers because many of these employers have existing preemployment testing programs and, generally, these employers have the available financial and administrative resources that enable them to begin testing. Part 135 certificate holders that have 11 to 50 covered employees, and contractors to those certificate holders, will be required to submit an interim anti-drug program, that sets forth all required drug testing except mandatory random drug testing, not later than 180 days after the effective date of the final rule. The employer must implement preeployment testing,' periodic testing, postaccident testing, testing based on reasonable cause, and testing after an employee's return to duty not later than 180 days after approval of the anti-drug program by the FAA. These employers must submit an amendment of their interim anti-drug program to the FAA, that contains the procedures for implementing an unannounced testing program of employees who are randomly selected at the applicable annualized testing rate, not later than 120 days after approval of the interim anti-drug program by the FAA. The employer must continue implementation of the remainder of the program and must implement the random testing provision not later than 180 days after approval of the amended anti-drug program by the FAA. Part 135 certificate holders with 10 or fewer covered employees and those entities or individuals, listed in § 135.1(b), who are otherwise exempt from the requirements of Part 135 but are included in the comprehensive antidrug program because they conduct operations for compensation or hire, and any contractors to these employers, must submit an anti-drug plan to the FAA for approval, that includes procedures for all types of testing mandated by the rule, not later than 360 days after the effective date of the final rule. These employers must implement the approved anti-drug program not later than 180 days after approval of the plan by the FAA. The FAA believes that this extension of time will enable small aviation entities to evaluate random drug testing programs of other companies, to develop an appropriate method by which to comply with the drug testing provisions of the rule, and to participate in any association or Federal Register / Vol. 53, No. 224 / Monday, November 21, 1988 / Rules and Regulations consortium that may be available to provide specimen collection, testing assistance, and EAP services. Also, the FAA believes that it is appropriate to require these employers to submit a plan that includes random testing, as opposed to implementation of random testing after other testing is implemented, because these employers will have a significant amount of time to develop and implement a comprehensive anti-drug program for their employees. New aviation businesses that come into existence after the effective date of the rule, and that are subject to the requirements of the final rule, will be required to comply with the schedule that is appropriate for the size of the company and their particular operations. The FAA believes that it is appropriate to adhere to the same time schedules that are set forth for existing aviation entities in order to treat similarly-situated entities in a similar manner. However, it is possible that the timeframes may be accelerated for new businesses in the furture as existing employer programs and consortia develop and continue to provide services to the aviation community. The FAA has identified an issue that could unduly burden small commercial operators who do not hold a Part 121 certificate or a Part 135 certificate, who conduct operations listed in § 135.1(b), and who are included in this final rule because they conduct operations for compensation or hire. Under the terms of the proposed rule, these commercial operators would have been unable to contract for aircraft maintenance or preventive maintenance services. The proposed rule would have prohibited commercial operators from using the services of employees who work for fixed base operators and repair stations that service only general aviation aircraft if the employees of these entities were not subject to an FAA-approved comprehensive anti-drug program. In an effort to relieve this unintended burden, the FAA has included a new provision in the final rule directed solely at those individuals or entities. This provision states, in essence, that an individual who is otherwise authorized may' perform maintenance and repair work on a commercial operator's aircraft, even if that individual is not covered by a comprehensive anti-drug program, in two specific instances. First an individual who is not covered by the final rule can perform emergency repairs on an aircraft if the aircraft could not be operated safely to a location where a covered employee could perform the repairs. Second, an individual who is not covered by the final rule can perform aircraft maintenance and preventive maintenance repairs on an aircraft if the operator would be required to transport the aircraft more than 50 nautical miles further than the closest available repair point from the operator's principal base of operations in order to have the work performed by a covered employee. The FAA believes that this narrow exemption from the requirements of the final rule will benefit the small commercial operators subject to'the final rule but will not adversely affect the enhanced aviation safety intended by the final rule. MedicalReview Officer (MRO). Several small entities, including EAF, believe that an MRO should have the responsibility to determine if an employee has been successfully rehabilitated and to determine when an employee may return to duty. ATA also recommends that an MRO be involved in the determination of an employee's successful rehabilitation. However, ATA notes that it would not always be feasible for an MRO to personally interview each employee who has a positive test result and recommends that the final rule accommodate that situation. RAA and Federal Express oppose any regulatory provision that would require an airline to appoint or to designate an MRO as part of an antidrug program. APFA believes that an MRO should be an independent physician who could assist labor and management EAP officials during analysis of drug test results and determination of the validity of test results in each employee's case. AFA believes that it is imperative that an MRO have specific training in toxicology and addictive diseases. Even with this training, AFA believes an MRO should be responsible for monitoring any testing program and interpreting test results to determine if referral to an EAP is warranted for a particular employee. AFA states that evaluation and referral for treatment and determinations regarding an employee's readiness to return to work should be made only by an EAP treatment professional. IUFA states that only the health care professional with whom an employee has been working is qualified to make a determination of when an employee is fit to return to duty. If an MRO and the responsible health care official disagree, a neutral third party should evaluate an employee and determine if an employee is fit to return to work. ALPA states that the determination of whether an individual has been rehabilitated, at least in the 'case of pilots, must be made by the 47043 Federal Air Surgeon under the medical certification procedures contained in Part 67 of the Federal Aviation Regulations. FAA Response. In response to commenters who oppose the requriement to designate or appoint an MRO, the FAA notes that the rule does not require that each employer have its own individual MRO. The FAA anticipates that small companies will become part of, or will associate with, large companies or may participate in a consortium of small companies or associations, in order to comply with the MRO requirement of the final rule that will result in reasonable costs to small employers. After consideration of the comments on the issue of MROs, the FAA has determined that the requirements proposed in the NPRM are appropriate. The FAA believes that the review and evaluation functions of an MRO provide critical and necessary safeguards for an employee who is subject to drug testing under the'comprehensive anti-drug program. The FAA believes that the MRO will prove to be a beneficial asset to both. employees and employers who are subject to the provisions of the final rule. However, the FAA has expanded the role of the MRO after review of the comments and the proposed rule, although many of these responsibilities are contingent on an employer's decision to be involved in rehabilitation. For example; if an employer chooses to use an individual to perform a sensitive safety- or security-related function who has failed a drug test under this program and who has successfully completed rehabilitation, the MRO will develop an unannounced testing schedule for that individual. The MRO is the final arbiter in cases where an individualdisputes a testing schedule after return to duty. Except in cases where the Federal Air Surgeon is involved, as discussed below, the MRO also is the final arbiter regarding return-to-duty recommendations. The MRO also shall review any rehabilitation program in which an employee or an applicant participated, after failing a drug test conducted in accordance with Appendix I to Part 121, to determine if an employee can return to duty or an applicant may be hired to perform a sensitive safety- or security-related function for an employer. The FAA also has defined the factors that an MRO shall consider when making a return-to-duty determination. The MRO is required by the final rule to ensure that an individual is drug free as evidenced by a drug test; that an 47044 Federal Register / Vol. 53, No. 224/ Federal Register I Vol. 53, 47044 individual has been evaluated by a rehabilitation counselor for drug use or abuse; and that an individual has complied with testing and counseling requirements of a rehabilitation program. Thus, the MRO will have significant and sufficient information to recommend, based on the MRO's professional opinion, that an individual or a current employee could perform a sensitive safety- or security-related function for an employer. The FAA clarified the proposed requirement that the MRO "conduct a medical interview" with an employee as part of the review of a positive test result. The FAA did not intend that the proposal require a face-to-face interview with each employee. The final rule requires that the MRO provide an employee with an opportunity to discuss a positive test result with the MRO. Thus, for example, the MRO is permitted to discuss the positive test result with. the employee by phone. The FAA believes that the clarification will relieve some administrative burdens.on the MRO and employees in scheduling discissions of a positive test result. The FAA also added several requirements to the MRO's list of duties. First, the MRO is required to notify an employee of a confirmed positive test result within a reasonable time after verification of the result. Second, the MRO must process an employee's request to retest a specimen. The final rule provides that the employee's request to retest must be made in writing to the MRO within 60 days of notification of the confirmed positive test result. In the NPRM, the FAA requested comment on-who should make the decision -that an employee had been successfully rehabilitated and could return to duty if the employee was drug free. ALPA specifically comments that return-to-duty determinations of pilots should be made by the Federal Air Surgeon consistent with the medical certification procedures contained in Part 67 of the Federal Aviation Regulations. Part 67 of the Federal Aviation Regulations define "drug dependence" as a "* * * condition in which a person is addicted to or dependent on drugs other than alcohol, tobacco, or ordinary caffeine-containing beverages, as evidenced by habitual use or a clear sense of need for the drug." After review of the comments and consideration of the medical standards contained in Part 67, the FAA has determined that the Federal Air Surgeon must be involved in the decision to return an individual who holds a Part 67 medical certificate to a sensitive safetyrelated position. The FAA believes that No. 224 / Monday, November 21, 1988 / Rules and Regulations Monday, November 21, 1988 / Rules and Regulations it would be contrary to the statutory mandate to determine the physical ability of an individual to perform duties pertaining to his or her airman certificate if the FAA failed to participate in a return-to-duty decision for an individual who holds a medical certificate. Thus, the FAA has clarified the responsibilities of the MRO for situations where an employer voluntarily becomes involved in rehabilitation of employees or persons hired to perform sensitive safety- or security-related functions that require an individual to hold a medical certificate issue by the FAA. Under the rule, the MRO will perform all the duties and make all the determinations required in Appendix I for those individuals who do not hold a medical certificate issued pursuant to Part 67 of the Federal Aviation Regulations. For those individuals whose position with the employer requires them to hold a Part 67 medical certificate, the MRO is required to make a preliminary determination, consistent with the standard contained in Part 67, of probable drug dependence or a determination of nondependence. If the -MRO makes a determination of nondependence based on his professional opinion,.the MRO may recommend that an employee return to duty in a sensitive safety- or securityrelated position. The MRO is required to forward the finding of nondependence, the decision to return the employee to duty, and any supporting documentation, to the Federal Air Surgeon for review. The FAA is aware that allowing an MRO to determine that an individual is not drug dependent and, therefore, may return to work in a sensitive safety- or security-related position without prior clearance by the Federal Air Surgeon may be controversial and may be viewed as inconsistent with aviation safety. However, in the FAA's opinion, it is consistent with aviation safety to provide subsequent FAA review of the treatment and any medical determination of nondependence that has been made by a competent licensed physician with knowledge of substance abuse disorders. The FAA also believes it is-beneficial to provide subsequent review of an MRO's return-to-duty determinations, rather than initial review by the Federal Air Surgeon, so that an individual who is not dependent on drugs can return to work as soon as possible. Moreover, any individual who returns to work after rehabilitation is subject to unannouned testing as determined by the MRO and may be subject to ongoing counseling. Therefore, the FAA believes that initial determinations by an MRO and subsequent review by the Federal Air Surgeon will result in effective and fair treatment of individuals who are required to hold a medical certificate. At any point that an MRO, in this professional opinion, makes a determination of probable drug dependence of an individual required to hold a medical certificate for a position, the MRO is required to report the name and other identifying information, and to forward all documentation that supports the determination, to the Federal Air Surgeon. If the MRO has made a probable drug dependence determination of an individual required to hold a medical certificate, the MRO may not make a recommendation to return that individual to duty. From that point forward, the Federal Air Surgeon is responsible for determining whether -the individual may keep a medical certificate or may be issued a medical certificate consistent -with the medical standards contained in Part 67 of the Federal Aviation Regulations. Since drug dependency is a disqualifying medical condition under Part 67 of the Federal Aviation Regulations, it is critical that the Federal Air Surgeon be aware of any determination of probable drug dependence. An individual subject to the medical requirements of Part 67 who has a history of drug dependency must receive a "special issuance" medical certificate, issued at the discretion of the Federal Air Surgeon pursuant to .§ 67.19, before returning to. work in a sensitive safety-related position. The Federal Air Surgeon is required to determine if that individual is qualified to hold a medical certificate and is physically able to exercise the privileges of an airman certificate. This determination, and the discretion to grant a special issuance of a medical certificate, clearly are within the exclusive expertise of the Federal Air Surgeon. The FAA has added a provision to the final rule that requires the MRO to report the name of any current employee required to hold a medical certificate to perform a sensitive safety-related function who fails a drug test. The MRO also is required to report the name of any individual who holds a. medical certificate-and applies for a position with the employer in which a medical certificate is required and who fails a preemployment drug test. The MRO is required to report the names of these individuals to the Federal Air Surgeon because a positive drug test result clearly is probative evidence of possible Federal Register / Vol. 53, No. 224'/ drug dependence which is a disqualifying condition under the medical standards of Part 67 of the Federal Aviation Regulations. Therefore, the FAA added this requirement to ensure that the FAA is aware of conditions that may affect an individual's ability to physically perform the duties of an airman. Administrative Matters and Reporting and Recordkeeping Requirements of Appendix I to Part121. The FAA received very few comments regarding the reporting requirements of the proposed rules. ATA found the requirements of Appendix I to be acceptable. ATA recommended that the FAA establish a date to analyze the data collected regarding drug testing and rehabilitation and to review the regulations. Suburban Airlines, as part of its analysis of the costs of the proposals, estimates that the administrative costs and record retention costs of testing its 211 employees would be $8,500 per year. Federal Express supports auditing of annual, summary data by the FAA that is supplied by an employer regarding the employer's anti-drug program. Federal Express does not object to submitting an anti-drug program for the FAA's approval but believes that the 180-day implementation period will be insufficient if the final rule contains all of the requirements proposed in the NPRM. FAA Response. The regulatory provision that require an employer to submit a comprehensive anti-drug program and summary reports of the employer's program are critical measures to provide oversight of the industry's implementation of the comprehensive anti-drug program. The FAA believes that these minimal requirements are necessary to properly monitor the industry and to ensure compliance with the final rule. In addition, evaluation of the industry's implementation of the anti-drug program and the results of testing and rehabilitation programs will enable the FAA to review any demonstrated trends of drug use in the aviation industry and to modify the rules if warranted by the data. These reporting requirements are consistent with the FAA's existing industry recordkeeping and reporting requirements. The FAA has modified the proposed recordkeeping and reporting provisions in the final rule. First, the FAA has clarified the requirements and organization of material that must be submitted in the employer's semi-annual report and annual report. In order that the FAA may accurately assess Monday, November 21, 1988 / Rules and Regulations 47045 information submitted by an employer, five years although extended record the revised final rule provides that the retention is not required by the final employer must submit the total number rule. The FAA also added a provision to of tests performed; the total number of the final rule that requires an employer tests performed for each category of to keep any negative test results for a test; and the total number of positive period of 12 months. However, all test results for each category of test records retained by the employer are given by an employer. These subject to limited release, as discussed requirements are in addition to the below, for any period of time that the proposed requirement to provide employer keeps these records. information on the number of positive Confidentialityof Test Results. Most test results according to the function small businesses, individuals, and labor performed by an employee for each type unions support restrictions on the of test and according to the type of drug release of drug testing information. indicated by a positive drug test result. These commenters believe that the FAA The FAA anticipates that requiring an should include a regulatory provision employer to report the additional prohibiting the release of any drug information will not overburden an testing information about an employee. employer because drug testing RAA believes that only the employer laboratories commonly report the bulk and the employee should have access to of this information when reporting drug the results of the anti-drug program. test results. For example, as part of the Conversely, ERA Aviation suggests that DOT procedures (49 CFR Part 40), a DHHS-certified laboratory is required to employers should be required to report the name, social security numbers, and provide a monthly statistical summary certificate numbers of employees testing of initial and confirmation urinalysis positive to the FAA. TWU states that testing data of employees tested during test results should be confidential as to the month to the person responsible for all persons, except an applicant or coordination of the drug program. The employee, absent written consent or summary contains information on the number of specimens received for initial valid compulsory process. The laboratory may release confirmed and confirmation testing; the number of positive test results or negative test specimens reported for initial testing; results only to the employer's medical and the number of specimens reported officer. TWU suggests that the medical positive for each of the five drugs or officer may notify managerial or drug metabolites tested during initial supervisory personnel who have a and confirmation testing [DOT compelling need for the information to "Procedures for Transportation implement employer's policies or may Workplace Drug Testing Programs;" 49 notify the medical personnel responsible CFR Part 40). for an employee's rehabilitation. The FAA had proposed that an RAA and Federal Express believe that employer only keep records relating to job applicants should be required to the specimen collection process in the disclose prior test results to subsequent NPRM. However, in light of other employers as a condition of revisions to the proposed rule made in employment. ATA believes that records response to the comments, the employer of applicants for employment who have also must retain records of test results tested positive in a preemployment drug and records relating to any employee test should be disclosed to third persons rehabilitation. For example, the MRO is in limited situations, including required to report the names of authorization from the applicant, individuals holding a Part 67 medical litigation by the applicant, pursuant to a certificate who fail a drug test and to valid subpoena, and by order of a court forward test result and rehabilitation or administrative agency. However, information regarding all individuals ATA believes that test results, related holding a medical certificate to the personnel records, and rehabilitation Federal Air Surgeon. Thus, the FAA has data of incumbent employees should not revised the recordkeeping provision of be released to any person absent the proposed rule to require that an express consent of the employee. The employer keep adequate information Director of the Santa Maria Public with which an employer and the FAA Airport District believes that positive can evaluate the anti-drug program and determine any trends that may develop test results of all employees and applicants should be retained in a in the commercial aviation industry. Pursuant to the final rule, an employer is central database and should be required to retain all confirmed positive available to potential aviation test results and any rehabilitation employers. Federal Express also records for five years. The employer believes that carriers should be free to may retain these records longer than exchange an employer's drug testing 47046 Federal Register / Vol. 53, 47046 Federal Register I Vol. 53, results and that the FAA should insulate carriers from liability for this disclosure. ALPA states that information regarding an employee's drug testing history should be treated as confidential information, and clearly stated in any final rule, since it is "extracted" from the employee by requiring the employee to submit to drug testing. A rule of confidentiality should apply to all information obtained pursuant to the regulation whether obtained as a result of testing, interview, or examination, or treatment of an employee. ALPA believes that the only effective and appropriate rule is a complete ban on disclosure of confidential drug testing information without the employee's written consent. ALPA believes that a complete ban on disclosure is required for ethical reasons and to encourage candor by employees when dealing with medical professionals. As a general matter, EEAC advocates protecting the privacy of individuals who undergo drug tests. EEAC believes that sharing of drug testing information among employers in a safety-sensitive industry has superficial appeal. However, EEAC advocates caution in allowing a subsequent employer to rely solely on information obtained as a result of a different company's drug testing procedures. FAA Response. The FAA has included a provision in the final rule that will govern release of records of an employee's drug testing results and any rehabilitation information. The FAA has decided that the legitimate individual privacy rights of an employee warrant strict limitations on the availability of an employee's drug testing results and rehabilitation information. The final rule provides that the release of an individual's drug test results and any information about an employee's rehabilitation program is permitted only with the specific, written consent of the individual. Due to the specific provisions discussed previously, this restriction does not override the requirement to report test results and any rehabilitation information to the Federal Air Surgeon of an applicant or an employee who holds a medical certificate who fails a drug test. The final rule also provides that the FAA is entitled to examine these records and that this information must be released to the NTSB as part of an accident investigation or to the FAA upon request. Temporary Employees. The FAA solicited comments in the NPRM on the proposed definition of temporary employees and their eligibility for rehabilitation. RAA agrees with the FAA's proposed definition that temporary employees are those No. 224-/'Monday, November 21, 1988 / Rules and Regulations No. 224 f Monday, November 21, 1988 / Rules and Regulations individuals who are hired for a period of individuals clearly should be included in an employer's drug testing program in less than 90 days. ATA and Federal the interest of aviation safety. In Express propose a period of 120 days and TEMSCO Helicopters proposes a addition, these employees, although they may consistently perform sensitive period of 150 days or less to determine an employee's eligibility for safety- or security-related functions rehabilitation opportunities. pursuant to short-term contracts for RAA and ATA agree with the FAA's different employers, should be included proposal to exclude temporary in EAP education programs because of employees from rehabilitation their continuous involvement in opportunities. RAA and ATA oppose the commercial aviation activities. FAA's proposal to consider employees, Uniformity versus Flexibility.ATA, who are eligible for reemployment by American Airlines, Delta Airlines, IUFA, the same employer within 90 days and IFFA believe that all employers and following the original employment, as employees should be subject to uniform regular employees of the industry and, minimum rules and requirements in the therefore, eligible for rehabilitation area of drug testing. These entities opportunities if they are rehired by the strongly believe that company-specific airline. plans may dilute the effectiveness of the Several organizations, including anti-drug program or lead to harassment TEMSCO Helicopters and ATA, of employees. comment that the time period of 90-day EEAC supports the concept of employment would adversely affect employer flexibility to design specific businesses who employ individuals on a anti-drug programs. EEAC believes that seasonal or contract basis for longer each employer should determine the periods of time. SSA states that small circumstances of employee drug testing businesses should not be required to and the content of employee assistance retain or to rehire a part-time or programs. EEAC supports temporary employee who volunteers for, preemployment testing, postaccident or otherwise participates in, testing, periodic testing incident to rehabilitation. scheduled physical examinations, and FAA Response. In the NPRM, the FAA testing based on reasonable cause. requested comment on the definition of EEAC believes employers should have a temporary employee and whether the option or requiring random testing of employers should be required to offer employees. rehabilitation opportunities and job EEAC readily endorses EAP services After security to temporary employees. rehabilitation of employees but and consideration of the comments and due believes that these benefits should not to deletion of the requirement to offer be mandated by the government. rehabilitation and job security to Decisions whether an employee has employees, a definition of temporary been rehabilitated and whether an employees in the final rule is employee should be permitted to return unnecessary. Therefore, an employer is to work should be determined by the not required by the rule to offer an individual employer acting with the opportunity for rehabilitation or to hold guidance of professionals involved in an a position open for any temporary employee's rehabilitation. employee. Federal Express believes that use of However, the final rule makes no controlled substances at any time, distinction regarding testing of whether on or off the job, should be temporary employees. Thus, an prohibited due to the critical safety employer is required by the final rule to include temporary employees in its drug concerns in the aviation industry. Federal Express states that such a testing program. The burden of testing * * helps ensure safe prohibition temporary employees is slight when operation of aircraft and protects compared to the significant risk that a employees and the general public from temporary employee who uses drugs unnecessary safety hazards." However, poses to aviation safety. Thus, the FAA Federal Express believes that the FAA believes that It is important to test temporary employees for the presence of should impose only minimum regulatory requirements of a drug testing and drugs or drug metabolites that may rehabilitation program and allow adversely affect performance of a carriers to structure individual programs sensitive safety- or security-related for their particular employees. function. Many "temporary" employees, FAA Response. The FAA agrees with who actually are recurring seasonal the Commepters who conclude that employees or are regularly and mandating minimum, uniform containually rehired at the end of requirements for comprehensive antispecified term, are "permanent" drug programs in the commercial members of the aviation industry. The aviation industry is necessary in order FAA firmly believes that these Federal Register / Vol. 53, No. 224 f Monday, November 21, 1988 / Rules and Regulations to maximize the effectiveness of the program and to achieve a safe and drugfree commercial aviation workforce. The FAA believes that the comprehensive anti-drug program promulgated in this final rule meets the agency's statutory mandate to promote the safety of civil aircraft operating in air commerce and that it responds to the public's need for a safe aviation environment. In response to the comments, particularly in the area of anti-drug programs implemented by small aviation entities, the FAA has addressed the need for employer flexibility by revising the program requirements or the implementation dates. The FAA has not included specific, detailed provisions regarding the content and requirements of an individual's treatment due to the significant variables that affect these components based on each individual, the type of drug used, and the level of any drug use, drug dependence, or drug addiction. Thus, in the area of an employee's rehabilitation treatment plan, the FAA agrees that this decision is best left to the discretion of those individuals who are significantly and directly involved in the employee's rehabilitation. The FAA has imposed uniform, minimum requirements on employers and employees in other areas of the comprehensive program. Although employers are required to comply with the minimum requirements, employers may expand the minimum testing requirements to include other employees or may offer EAP services and rehabilitation opportunities to employees. If the employer expands its anti-drug program, any additional - components of the employer's anti-drug program may not contradict or dilute the effectiveness of the FAA's final rule. As stated in the NPRM, while the FAA would not prohibit employers from taking independent actions beyond those required by the rule, such actions may not adversely affect the final rule and would not be authorized by the FAA. Therefore, additional benefits or more stringent procedures would not be considered part of the employer's approved program. The FAA received many comments for revision of the final rule to include testing for additional drugs and permission for an employer to use analytical procedures that are not addressed in the DHHS guidelines. The Department of Transportation will address the issue of testing for additional drugs in the DOT "Procedures for Transportation Workplace Drug Testing Programs" (49 CFR Part 40). DOT intends to follow the proposed DHHS guidelines which allow testing for other drugs, in addition to the five drugs specified in the appendix, only in the context of testing based on reasonable cause. Neither this final rule nor the DOT procedures address the issue of an employer's ability to test for drugs, other than the drugs specified by the FAA, to the extent that an employer has independent legal authority to test for other drugs. Regulatory Consent. AOPA believes that the FAA should eliminate the regulatory section that would require a pilot to submit to a drug test requested by an employer, a local law enforcement officer, or an FAA inspector. AOPA asserts that the FAA does not have the authority or the expertise to administer a drug test and that refusal to sumbit to a test is best left to local law. ATA agrees with the sanctions proposed for an employee's refusal to submit to a required test. Henson Airlines has an existing policy that an employee's refusal to submit to a drug or alcohol test will result in disciplinary action that could include dismissal from the company. FAA Response. The FAA has not revised the provisions proposed in the NPRM that would provide sanctions for an employee's refusal to submit to a drug test required as part of the comprehensive anti-drug program. The FAA believes that the sanctions proposed in the NPRM are appropriate and are necessary to ensure compliance with the requirements of the anti-drug program. In response to AOPA's comment, the FAA would not "administer" a drug test under this provision. The FAA would simply request that the employee submit to a drug test, collected and analyzed consistent with the DOT procedures of 49 CFR Part 40, where testing would be otherwise authorized under an anti-drug program. This provision is necessary primarily in the area of postaccident drug testing where the FAA may be the only official at the scene of an accident with the authority to request that an individual submit to a postaccident drug test. The FAA also believes that compliance with the testing requirements of the final rule is not an issue that is best left to local law. As a preliminary matter, the FAA has clear statutory authority to promote and maintain aviation safety. Second, the FAA is the entity that issues airman certificates and that is charged with ensuring that an airman is qualified to exercise the privileges of that Federal certificate. Finally, sanctions imposed pursuant to State or local law may vary 47047 widely among each jurisdiction and would subject similarly-situated employees to dissimilar treatment according to the content of the local law. Therefore, the FAA believes that it is appropriate to provide that an individual Is disabled from performing a sensitive safety- or security-related function and to include sanctions for a failure to submit to a drug test to promote aviation safety and to ensure consistent treatment of Individuals engaged in commercial aviation. Existing Regulations. AOPA, several small aviation entities, and many individual commenters believe that the FAA's existing regulations, and increased FAA enforcement of these regulations, are sufficient to deal with any drug problem in the aviation industry. A commenter speaking as national litigation counsel for AOPA and on behalf of-the California Aviation Council and the Orange County Aviation Association believes that the types of testing proposed by the FAA are duplicative of the existing opportunities for testing in the periodic medical examination of commercial and air transport pilots. In addition, this commenter states that the FAA has the authority, pursuant to § 609 of the Federal Aviation Act, to reexamine or reinspect any airman at any time. Therefore, the commenter believes that the FAA could implement a lawful drug testing program within the existing infrastructure of the FAA's certification procedures. The commenter also states that the regulations proposed in the NPRM create an irreconcilable conflict with the FAA's safety-enhancement enforcement system. The commenter believes that the proposed anti-drug program will prove detrimental to aviation safety because the number of enforcement cases brought by the FAA for violations of the proposed regulations will overburden the FAA and the administrative law judges assigned to hear enforcement cases. FAA Response. The FAA disagrees with the commenters who state that the comprehensive anti-drug program requirements are redundant and that increased enforcement of the existing regulations or reexamination of individual airmen will result in a drugfree commercial aviation environment. The existing regulations do not address the issue of drug testing of aviation personnel performing sensitive. safetyor security-related functions in commercial aviation. Thus, in the FAA's opinion, enforcement of existing regulations or individual reexamination will not sufficiently deter any drug use 47048 Federal Register / Vol. 53, No. 224 / Monday, 'November 21, 1988 / Rules and Regulations in commercial aviation. In addition, the existing regulations do not address the critical issues of procedural safeguards in collection and testing of samples for the presence of drugs or drug metabolites that are provided in the DOT procedures of 49 CFR Part 40. Establishing a drug testing program within the existing "infrastructure" of the existing certification procedures is equivalent to implementing only a periodic testing requirement. Because of an individual's ability to circumvent periodic testing, based on a relatively short abstinence from drug use, periodic testing alone is not a sufficient deterrent to drug use in commercial aviation. The FAA believes that it is appropriate and necessary to provide minimum requirements, applicable to employers and employees, that will achieve a drugfree commercial aviation environment. Preemption of State and Local Laws. ATA, Federal Express, and RAA recommend that the FAA insert a regulatory provision that explicitly proscribes State or local legislation that would interfere with the consistent and uniform testing and rehabilitation opportunities for aviation employees mandated by this final rule. FAA Response. The FAA agrees with the commenters who are critically concerned about conflicting State and local laws that would interfere with an effective comprehensive anti-drug program. The FAA believes that inconsistent laws or regulations applicable to the subject matter of this final rule will frustrate the intent of the rule and severely hamper implementation and administration of an anti-drug program. Therefore, the FAA has included a preemption provision in the final rule that is intended to enhance the efficiency and. effectiveness of the requirements of the final rule. The FAA's issuance of the final rule preempts any State or local law, rule regulation, order, or standard that covers testing of commercial aviation employees for the presence of drugs or drug metabolites. The new rule does not preempt any State law that imposes sanctions for the violation of a provision of a State criminal code related to reckless conduct leading to actual loss of life, injury or damage to property, whether such provisions apply specifically to aviation employees or generally to the public. The scope of the authority preempted by this final rule and the authority reserved to the States is essentially identical to the provision in the regulations issued by the Federal Railroad Administration of the Department of Transportation (49 CFR 219.13). Waivers or Exemptions. ATA believes that waivers and modifications of an employer's drug testing program should be granted if exceptional circumstances warrant the waiver or modification and if an equivalent level of safety can be maintained under the terms of the waiver. American Airlines advocates that all carriers should be subject to identical requirements and waivers should not be granted. FAA Response. The final rule sets forth minimum requirements that must be included in an employer's anti-drug program. However, the rule generally does not set forth detailed program administration requirements in most areas of the program. Also, an employer is not prohibited from establishing an anti-drug program that goes beyond the minimum requirements promulgated by this rule. As a result of the FAA approval process of an employer's antidrug program, a certain amount of discretion and flexibility is retained for an employer's administration of its antidrug program. On this basis, the FAA has determined that any requests for exemption from a requirement of this rule should be handled in the same manner as requests for exemptions of other FAA regulations under Part 11 of the Federal Aviation Regulations. The FAA believes that a case-by-case determination will be necessary to ensure that any exemptions from the requirements of this final rule are in the public interest. Contractors The FAA has revised the proposed rule as it applies to contractors whose employees perform sensitive safety- or security-related service for aviation entities subject to the rule. Under the proposed rule, contractors whose employees perform covered service to aviation entities were authorized to submit their own plans to the FAA to implement directly an anti-drug program. These contractor employees also could have been included in the anti-drug program of the aviation entity for whom they were providing services. However, for the final rule, the FAA concluded that all persons performing sensitive safety- or security-related functions should be under the plan of the aviation entity for whom they provide the services. The FAA believes that administration of the anti-drug program would be vastly more efficient-for aviation entities directly subject to the rule, contractors, and the FAA-by reducing the proliferation of different plans submitted by a significant number of contractors who provide covered service to the same aviation entity. In addition, the FAA believes that limiting the submission of plans to those aviation entities directly subject to the rule will provide a more consistent approach to administration of industry anti-drug programs and will minimize the difficulties of ensuring compliance with the final rule. As noted earlier in this preamble, the final rule provides that an employee who is subject to the requirements of any employer's FAAapproved anti-drug program may provide sensitive safety- or securityrelated services to any other employer. Therefore, so long as a contractor employee is covered by one aviation entity's anti-drug program, the employee would be able to provide services for any employer subject to the rule. Thus, a contactor whose employees provide services to multiple aviation entities would not be subject to any greater burden than those entities directly subject to the rule. Additional Issues Alcohol. The NTSB, AMA, Henson Airlines, and other individual commenters suggest that the FAA include alcohol as a tested substance in any required testing program. The FAA expressly excluded the issue of alcohol testing from this rulemaking for a variety of reasons stated in the NPRM; therefore, these comments are beyond the scope of this rulemaking. Excluding alcohol testing from this rulemaking should not be construed to mean that the FAA is ignoring the fact that alcohol may be a substance of widespread abuse in the aviation industry. As stated in the NPRW, the FAA will continue to review the effectiveness of regulations dealing with the issue of alcohol use and abuse in aviation and may consider additional rulemaking action in the future. In addition, employers are not prohibited from initiating alcohol testing programs for their employees if not otherwise prohibited from testing for alcohol. The Department of Transportation will include a provision in the DOT precedures (49 CFR Part 40) that will enable an employer to test for the presence of alcohol in an employee's system. Pursuant to those procedures, the employer could include testing for alcohol in testing protocols only pursuant to FAA approval if the testing is authorized under the FAA regulations. Testing for additionaldrugs. The NTSB recommends that the FAA expand the list of prohibited drugs to include those substances listed in Schedule III and Schedule IV of the Controlled Substances Act. The NTSB also Federal Register / Vol. 53, No. 224 /-Monday, November 21, 1988 / Rules and- Regulations recommends that the FAA develop a medical exemption process to provide for a pilot's legitimate medical use of these substances. ATA recommends that mind-altering prescription drugs, such as barbiturates, benzodiazepines, methadone, and methaqualone, also be listed as prohibited drugs in any drug testing program. ERA Aviation supports this recommendation and suggests that propoxyphene, quaaludes, and codeine be added to the list of drugs that would be screened. The five drugs specifically listed in Appendix I to Part 121 are the five drugs for which DHHS has set cutoff levels and testing protocols in its mandatory guidelines (53 FR 11970, 11973-11974; April 11, 1988). The Department of Transportation intends to adopt these cutoff levels and testing protocols verbatim in its procedures applicable to the aviation industry (49 CFR Part 40). An employer is required to test for marijuana, cocaine, opiates, phencyclidine (PCP), amphetamines, and metabolites of those drugs because of the incidence and prevalence of use of these drugs in the general population and based on the experience of the Department of Defense and the Department of Transportation in their drug testing programs. Because analysis of additional, less-frequently used drugs could result in substantial additional expense, the FAA believes that requiring an employer to test for these five drugs is appropriate at this time. Any testing for other drugs, beyond the specified drugs listed in the appendix, is authorized only in the context of testing based on reasonable cause. Only if, in that context, the FAA authorizes testing for additional Drug X under 49 CFR Part 40 (an approval which would be granted only after consultation with the Department of Health and Human Services, and only on the basis of an HHS-established testing protocol and positive threshhold) may the employer also test the sample for that drug. Absent such an approval, if the employer wants to test, in addition, for Drug Y, the employer must obtain a second sample from the employee. The obtaining of this second sample is not under the authority of the DOT regulation. The employer must base its request for the second sample on whatever other legal authority is available, since the employer cannot rely on the DOT regulation as the basis for the request. The FAA is aware that listing the drugs that will be analyzed as part of a drug testing program may result in individuals using alternative drugs that are not analyzed pursuant to the final rule. As part of the agency's review and anlaysis of the industry's anti-drug programs, the FAA encourages the aviation industry to notify the FAA if different drugs are being used in the aviation community. As part of the FAA's oversight of the comprehensive anti-drug program, the FAA will seek statistical information, to the extent any information is available, from the National Institute on Drug Abuse (NIDA), other Federal agencies, and any other source to determine if additional, different drugs should be included in the comprehensive anti-drug program to ensure aviation safety. Testing of other individuals.Several commenters, including the AMA, NTSB, ATA. and ALPA, suggest that the FAA expand the list of individuals to be tested, or defined as sensitive safetyand security-related employees, under the regulations. Several entities recommended that the FAA require testing of all individuals certificated by the FAA, including general aviation pilots, ALPA, ATA, and Martin Aviation recommend that any employee who performs a function in or around an aircraft (deicing, weight and balance computation, fueling, taxiing or towing aircraft, weather forecasting, baggage handlers, and cargo personnel) and supervisors of covered employees be subject to testing because these individuals affect aviation safety. Federal Express states that it would include ramp agents responsible for weight and balance of an aircraft, deicers, and fuelers in a drug testing program. Federal Express supports inclusion of aviation security screeners in a drug testing program although it does not employ these individuals. ALPA and American Airlines also urge the FAA to include corporate officers in any testing program. The Director of the Santa Maria Public Airport District suggests that the FAA amend Part 107, Part 108, and Part 139 to ensure that employees of certificated airport operators are included in the anti-drug program. Tramco, Inc. suggests .that Part 145 be amended so that repair station employers are required to comply with the anti-drug requirements in the same manner as Part 121 certificate holders. Tramco also suggests that aircraft manufacturers be required to implement an anti-drug program. After review of these various comments, the FAA has retained the basic regulatory list of functions proposed in the NPRM. However, the FAA has eliminated parachute rigging duties from the list of functions contained in Appendix I to Part 121. The activities performed by parachute 47049 riggers do not have a direct and significant impact on the safe operation of civil aircraft as do the other sensitive safety- and security-related functions listed in the appendix. The FAA has not revised the rule to require drug testing of supervisory or managerial employees. However, the FAA notes that under the proposed rule and the final rule, supervisory or managerial employees who perform sensitive safety- or security-related functions for an employer are not permitted to perform these functions, either on a permanent or temporary basis, unless those employees are subject to the requirements of the employer's anti-drug program. Also, repair station employers and employees are subject to the requirements of an anti-drug program if these individuals provide contract service to an employer who is subject to the requirements of this final rule. Under the terms of the rule, a Part 121 certificate holder, a Part 135 certificate holder, or an entity or individual covered by the rule because they operate for compensation or hire may only use the services of persons who are subject to the requirements of an FAA-approved program. Therefore, although Part 145 was not amended, repair station employers and employees are included to the extent that they provide contract service or repair aircraft operated by an employer subject to the final rule. The comprehensive anti-drug programs, proposed by the operating administrations within the Department of Transportation, focus on drug testing for various commercial transportation activities. The scope and direction of the FAA's comprehensive anti-drug program is consistent with the present Department-wide policy. The FAA encourages the public and members of the aviation industry to submit information to the FAA (directed to the person listed in the heading "FOR FURTHER INFORMATION CONTACT") that may warrant inclusion of different drugs in a drug testing program or additional categories of employees to be tested. If it is necessary to preserve confidentiality of any information submitted to the FAA, the FAA encourages aviation industry representatives or trade associations to transmit the information to the FAA. The FAA will monitor the date gathered pursuant to this program, and will continue to review other information regarding drug use in private and commercial aviation, to determine if further rulemaking action in this area is required or necessary. The FAA may revise other sections of the Federal 47050 Federal Register / Vol. 53, No. 224 Aviation Regulations, to broaden the applicability and scope of the comprehensive anti-drug program, if further study warrants this action. The final rule does not prohibit an employer from testing any other employee or group of employees, if the employer is not otherwise prohibited, that the employer determines should be tested for drugs to provide safety or efficiency in the workplace. Conflict with foreign laws orpolicies. We have determined not to make the rule applicable in any situation where compliance would violate the domestic laws or policies of another country. In addition, because of the potential confusion that may exist involving application of this rule in situations where compliance could violate foreign laws or policies, we have determined not to make the rule applicable, until January 1, 1990, in any situation where a foreign government contends that compliance with our rule raises questions of compatibility with its domestic laws or policies. During the next year, the Department of Transportation and other U.S. government officials will be working closely with representatives of foreign governments with the goal of reaching a permanent resolution to any conflict between our rule and foreign laws and policies. The U.S. and Canadian Governments have already established a bilateral working group in an attempt to achieve this objective. We believe that considerable progress has already been made, and further meetings will be held in the near future. While we believe that this can be a model for addressing the concerns of other countries, it is not intended to be the exclusive means. The Administrator may delay the effective date further under this section, if such delay is necessary to permit consultation with any foreign governments to be successfully completed. It is the agency's intention to issue a notice no later than December 1, 1989, that would make any necessary amendments to the rule as a result of discussions with foreign governments. Shortly after their issuance, any such notices will be published in the Federal Register. While we recognize that any decision not to apply our rule to foreign citizens has the potential to create some anomalous conditions in competitive situations, it is the intention of the U.S. Government to make every effort to resolve potential conflicts with foreign governments in a manner that accommodates their concerns while ensuring the necessary-level of safety by those we regulate. i Monday, November 21, 1988 / Rules and Regulations Statutoryauthority.One commenter The definition of an "employee" in Appendix I to Part 121 was amended to questions the authority of the FAA to make it clear that employees of an entity promulgate regulations that proscribe that holds both a Part 121 certificate and recreational drug use by any airman a Part 135 certificate are to be during his or her free time that does not considered employees of the Part 121 impair the airman's performance on the certificate holder. This will ensure that job. As stated by the commenter, the FAA's mandate is to ensure the safety of all employees of a single entity, civil aviation and not to enforce criminal regardless of the type of operating certificate held by the employer, are drug enforcement laws. subject to the same requirements and The FAA clearly has the statutory time schedules for the purposes of an authority to mandate continuing anti-drug program. eligibility requirements and minimum The definition of "employer" also was physical and medical standards to amended. This section was amended to promote and develop safety in air make it clear that an employee of one commerce and civil aeronautics. For company that has implemented an antiexample, the FAA has clear authority to drug program may perform sensitive prohibit off-duty consumption of alcohol safety- or security-related functions for prior to aircraft operation to ensure that' another employer. For example, a a crewmember is not impaired by mechanic employed by American alcohol while acting or attempting to act Airlines, who is covered by American's as a crewmember of a civil aircraft. anti-drug program, is permitted to Similarly, in the FAA's opinion, this perform maintenance duties or repair broad authority includes the authority work on an aircraft owned by United and ability to prohibit the presence of Airlines. any drug or drug metabolite in an The Department of Transportation has individual's system that may adversely determined that certain modifications of affect aviation safety. the DHHS guidelines, proposed in the As noted in the NPRM, it often is NPRM, are appropriate for this difficult to detect the subtle and varying rulemaking. The FAA has referenced a degrees of drug impairment to motor DOT interim final rule (49 CFR Part 40), skills and judgment that are critical to entitled "Procedures for Transportation aircraft operation or performance of Workplace Drug Testing Programs," in sensitive safety- and security-related duties. Certain drugs or drug metabolites this final rule. The FAA did not revise significantly remain in an individual's system long the section of the appendix regarding after use and may impair an individual's the substances for which testing must be subsequent performance. Indeed, the conducted. However, the appendix Vice President of a national firm provides that testing for drugs listed in providing consultation services on drug Schedule I and Schedule II of the abuse prevention to American Airlines, Controlled Substances Act is permitted with significant experience in only during testing based on reasonable identification and treatment of drug cause. In addition, the testing must be users, states that marijuana use disrupts conducted in accordance with the DOT recall and short-term memory and that "Procedures for Transportation there is serious impairment of skills Workplace Drug Testing Programs" and appropriate to industrial operations for pursuant to the employer's approved 10 to 12 hours after smoking a single anti-drug program. marijuana cigarette. The FAA believes The FAA clarified the preemployment that it is clearly in the public interest and within the FAA's statutory authority testing provision to make it clear that an employer may use a person to perform a to ensure that any "hangover effect" sensitive safety- or security-related associated with recreational use of function who passed a previous illegal drugs does not interfere with an preemployment drug test for an individual's performance and, thus, employer and has continuously been jeopardize air safety. Summary of Significant Changes From the ProposedRule The FAA amended several sections of the proposed rule in response to comments received from the public on the issues and in response to questions raised in the NPRM. Any changes that significantly altered the requirements of the anti-drug program are discussed previously and are summarized in this section. subject to testing under an approved anti-drug program even if the individual is not currently employed by that employer. The rule prohibits an employer from "hiring" any person after failing a preemployment drug test. The rule does not require an employer to test every applicant but only to test an applicant before he or she is actually hired by the employer. The periodic testing provision was revised to make it clear that an Federal Register / Vol. 53, No. 224 / Monday, November 21, 1988 / Rules and Regulations I m m employee is only required to provide one specimen for testing during the employee's first periodic medical examination in the first calendar year of implementation of the final rule. Also, this section was revised to enable an employer to discontinue periodic drug testing of employees as part of a medical examination after the first full calendar year of implementation of the employer's anti-drug program. After the first year of implementation, the employer's random testing program should be fully implemented and periodic testing as part of a medical examination may be eliminated. The FAA revised the random testing provision of the final rule in response to the comments and with reference to the plans of the random testing program started by the Department of Transportation. The final rule provides for phased implementation of unannounced testing based on random selection beginning with an annualized rate equal to 25 percent of covered employees during the first 12 months of program implementation. Thereafter, the employer must achieve and maintain an annualized testing rate equal to 50 percent of the covered employees. The FAA also added a provision that would enable an employer to randomly select employees for unannounced testing based on a method, other than the methods originally proposed in the NPRM, that has been approved by the FAA. The FAA has amended the postaccident testing provision. The revised section requires an employer to ensure that postaccident testing is conducted as soon as possible but not later than 32 hours after an accident. As discussed previously, the FAA has expanded the bases upon which an employer may substantiate the determination to test an employee based on reasonable cause. In order to address concerns expressed in the comments, the FAA has included a provision in this section that allows a small aviation employer to test an employee based on a determination of reasonable cause made by only one supervisor trained in detection of drug use symptoms. As proposed in the NPRM an employer may test an employee performing a sensitive safety- or security-related function for any Schedule I or Schedule II drug, if the employer conducts the testing based on reasonable cause in a manner consistent with the employer's approved anti-drug program and the DOT procedures (49 CFR Part 40). In response to comments specifically solicited in the NPRM, the FAA has included a provision for unannounced testing after an employee's return to duty. Employees who failed a drug test or who refused to submit to a drug test and who have not received a recommendation to return to duty from an MRO must be tested in accordance with the return-to-duty provision of the final rule. This section requires an employer to implement a reasonable program of unannounced testing, for not longer than 60 months, after an individual has been hired or an employee has returned to duty to perform a sensitive safety- or securityrelated function. The FAA has expanded the role of the medical review officer (MRO). For example, the MRO will review rehabilitation programs to determine if an employee may return to duty or an individual may be hired to perform a sensitive safety- or security-related function for an employer. The MRO also is the final arbiter in the case of'disputes regarding a schedule for unannounced testing after an employee's return to duty. The FAA has added several provisions to this section to describe the duties of an MRO and the involvement of the Federal Air Surgeon where an individual who holds a medical certificate tests positive for the presence of a drug or drug metabolite. The FAA has added a provision that protects the confidentiality of employee drug testing results and any rehabilitation information. This information may be released by an employer only with the written consent of the employee. However, the FAA may examine test result and rehabilitation records and the information may be released to the NTSB as part of an accident investigation or to the FAA upon request. For various reasons discussed previously and in response to many comments, the FAA determined that opportunities for rehabilitation and job security for employees will not be mandated by this final rule. Rehabilitation opportunities and job security issues may be considered by an employer and should be determined by employers and employees in the specific employment context. The FAA has tailored the schedule proposed in the NPRM for submitting an anti-drug program to the FAA and implementation of an anti-drug program in response to comments received in response to the NPRM. These changes have been fully discussed previously. In essence, the large aviation companies are required to comply with the schedules proposed in the NPRM. Smaller aviation companies have additional time to develop and implement an interim anti-drug program and slightly broader timeframes to 47051 develop and submit a random testing program. The smallest aviation entities covered by the rule initially have additional time to develop and implement testing programs for their employees. The FAA also has included a section in Appendix I to Part 121 to provide for the preemptive effect of these regulations regardingany State or local law covering the subject matter of drug testing of commercial aviation employees. However, issuance of the final rule does not preempt State criminal laws that impose sanctions for reckless conduct leading to death, injury, or property damage. Comments on the Cost of the Anti-Drug Program Most small entities object to the antidrug program based on the financial and administrative burden that these entities believe would result from implementation of the rule as proposed. Executive Air Fleet (EAF) is a Part 135 certificate holder with 200 employees who would be covered by the proposed rules. Because drug testing is widespread in other industries, EAF states that the aviation industry should "move ahead" with the proposed rules. However, EAF states that the potential costs of an anti-drug program could be burdensome even to an operation the size of EAF. EAF estimates that drug testing as proposed in the NPRM would cost $25,000 annually to test its 200 covered employees. EAP services would cost up to $26 per employee. EAF believes that EAP services would have to be available to the total employee population, not only sensitive safety- or security-related employees, because it is a benefit offered to employees. Thus, EAF estimates that EAP services for a business employing 400 individuals would cost $10,400 annually. Metro Air is a Part 135 certificate holder using two single-engine aircraft, two light twin-engine aircraft, and three helicopters. Metro Air also is a flight school operator using 15 aircraft. Metro Air employs six full-time pilots and four to fivepart-time pilots. Metro Air states that the proposed rule is not financially feasible for small commercial operators because the company is not in a position to retain or offer rehabilitation to an employee who tests positive for drugs and the cost of hiring an MRO to interpret test results would be prohibitive. Metro Air believes that the FAA should conduct all drug testing of employees and administer any rehabilitation offered to an employee. Ryder Systems, Inc. employs over 40,000 individuals who perform a variety 47052 47052 Federal Resister / Vo1.,53, No. 224,/ Monday.;Noffember 21, 1988 / Rules and Regulations Fedeal Register / Vol."53,N 2 o of jobs in the transportation industry. Ryder Systems implemented an EAP in 1984. Ryder Systems estimates that 40 percent of the employees enrolled in the EAP due to controlled substance abuse problems require 28- to 30-day inpatient treatment that costs between $10,000 to $20,000. The average cost for controlled substance rehabilitation per employee is $3,000. On this basis, Ryder Systems believes that the FAA should only require that an employer establish an EAP and offer EAP services to an employee but should not specify the details of an EAP or rehabilitation program. However, Ryder Systems believes that the FAA should preserve the employer's discretion to determine EAP eligibility standards for employees, treatment of repeat offenders, and the conditions for allowing an employee to return to work. American Airlines estimates that rehabilitation and treatment of an employee costs $8,000. For this reason and to ensure that the quality of treatment will lead to a reasonable prognosis for recovery, American Airlines believes that employers and contractors should be financially responsible for rehabilitation. Conversely, RAA and several small aviation entities, including Martin Aviation, Inc., believe that the FAA should not force airlines to incur the cost of employee rehabilitation due to the economic impact of the requirement on the regional airline industry. RAA states that the average cost of a single random test would be $55 and that retesting for verification of positive results could cost up to $80 per test. On this basis, RAA estimates that the cost of random testing at a rate of 125 percent annually for regional airline pilots only will approach $500,000 annually. Due to the high cost of testing at a rate of 125 percent and the fact that the proposed rules would require testing of other aviation safety-related personnel in addition to pilots, RAA suggests that a random sampling rate of 50 percent would be appropriate. Suburban Airlines employs 211 employees who would be covered by the proposed program. Suburban estimates that the FAA's program would cost over $28,000 annually at present employment levels. Based on Suburban's experience, 5 percent of intial tests indicate positive results for the presence of drugs and must be confirmed to verify the initial test results. Tramco, Inc., a certificated repair station, estimates that compliance with the anti-drug program will cost $24,000 annually plus counseling and lost time costs. ALPA believes that the-FAA incorrectly estimated the cost of the proposed anti-drug program and, therefore, the drug testing program is not justified by any reasonable cost-benefit analysis. ALPA states that the laboratory cost per test, assuming a random testing rate of 125 percent and a negotiated cost similar to the cost contained in the economic analysis, is merely a fraction of the total costs associated with a drug testing program. ALPA maintains that a drug testing program could cost at least $280 million per year. ALPA's estimate of cost is based on substantial administrative and personnel expenses, transportation of employees to a collection site, employee compensation during collection of a specimen, and compensation of employees who replace employees being tested during revenue flights. A commenter speaking as national litigation counsel for AOPA and on behalf of the California Aviation Council and the Orange County Aviation Association believes that the FAA understated the costs and overgeneralized the benefits of the proposed rule contained in the economic summary of the NPRM. This commenter also believes that the FAA failed to consider more effective, practical, and less intrusive programs to deal with any drug problem that might exist in the aviation industry. The commenter states that the economic analysis fails to consider the potentially destructive economic effect of the proposed rules on small, commercial operators. Therefore, the commenter states that the FAA may not issue a final rule because the FAA has failed to meet the criteria of Executive Order 12291. California Aeromedical Rescue and Evacuation, Inc. (CARE) does not believe that the proposed rules are reasonable due to the lack of evidence of a drug problem in aviation. CARE comments that the cost of maintaining a drug testing program, whether or not that program includes random testing, is significant. CARE employs 10 pilots, 4 mechanics, and approximately 45 flight nurses and flight medics. CARE estimates that the cost per test is $45 and, therefore, the fiscal impact on its operations will be between $8,000 to $12,000 per year. CARE believes that its scarce financial resources should be used for training, equipment, and maintenance. CARE states that preemployment and probable cause testing are wise and prudent measures. CARE predicts that including other types of testing will cause some of its employees to leave the company due to issues related to the constitutionality of unannounced testing without particularized suspicion of drug use. CARE states that the costs of litigation and training for new employees should be directed to other more useful avenues. The-commenters stress that while the costs developed by the FAA may be appropriate for larger companies, who are able to take advantage of ,economies of scale," small aviation companies would incur significantly higher costs. Two commenters who submitted a joint comment on the economic analysis contained in the NPRM dispute the benefits of the proposals in the NPRM, particularly with the FAA's estimate of the possible detection rate. These commenters present statistical analyses, using the data in the NPRM on general aviation pilots, to demonstrate, in their opinion, a considerably reduced detection rate and, therefore, considerably reduced benefits. FAA Response. The FAA agrees that costs of screening and confirmation tests may reflect the bulk purchasing power of laboratory service for a large number of specimens and, therefore, may be applicable only to large aviation companies. However, the FAA lacks clear and definitive data regarding the extent to which "economies of scale" will affect or reduce costs. Although some commenters believe that the FAA failed to consider costs associated with administration of the anti-drug program, the initial Regulatory Evaluation and the FAA's total costs stated in the NPRM included these administrative costs. The figures in the NPRM were based on average industry costs available to the FAA at the time of the NPRM. The FAA believes that the costs contained in the NPRM may closely equate to actual costs because the vast majority of personnel subject to the testing requirements of the proposed rule, by a ratio of 10 employees of large companies to one employee of small companies, are employees of large companies. Moreover, the FAA notes that small Part 135 certificate holders and other small aviation companies often are associated with larger companies. The FAA believes that small aviation operators could participate with large companies, much as these small companies contract for maintenance, reservations services, gate agents of larger companies, to conduct the required tests pursuant to the rules and, thus, take advantage of the economies of scale. Nevertheless, the FAA increased the estimate of drug testing costs in an effort to respond to the concerns expressed by the commenters and to reflect the potential testing costs incurred by small aviation operators. For the purposes of the Regulatory Impact Analysis of the Federal Register / Vol. 53, No. 224 / Monday, November 21, 1988'/ final rule, the cost estimate of screening tests was increased to $25.00 per test; the cost estimate of confirmation tests was increased to $35.00 per test; and the administrative costs were increased to $35.00 per test. The FAA recognizes that broad rehabilitation programs would be very costly and could be cost-prohibitive for small aviation companies. For a variety of reasons discussed previously, the final rule does not require an employer to offer an opportunity for rehabilitation to employees and the FAA has not mandated a minimum amount of time that an employer must hold a position open while an employee is prohibited from performing sensitive safety- or security-related functions. In estimating the benefits that are expected to accrue as a result of a comprehensive anti-drug program, the FAA noted its lack of specific, available data in the NPRM. The FAA disagrees with the commenters who dispute the analysis of benefits provided by the FAA in the NPRM and notes that a comparison of the benefits determined by these commenters with the estimated costs of the rule would still result in a cost beneficial rule. No evidence is available to demonstrate that sole reliance on the data regarding deceased general aviation pilots is representative of the population of employees who are subject to testing under the provisions of the final rule. Infrequent and sporadic data is available in the commercial aviation sector. The FAA can not rely solely on information deduced from the two commercial aviation accidents discussed previously. The information does not reveal any significant patterns that would assist the FAA's estimates of costs and benefits of the proposals and, in any event, this information is not generally representative of personnel who are not pilots but who are subject to the requirements of the rule. For these reasons, the FAA believes that it is appropriate to use the national NIDA study information to estimate the potential costs of the rule because it more accurately reflects the broad population of employees who would be. tested pursuant to a comprehensive drug testing program. Economic Summary In accordance with the requirements of Executive Order 12291, the FAA reviewed the cost impact and benefits of this final rule. Cost factors were obtained from information in the public docket including comments received during the FAA's publichearings. Additional data were furnished by air carrier trade associations, public institutions, and major chemical and drug testing laboratories. This rulemaking does not meet the criteria of a "major" rule under Executive Order 12291 because it is not likely to have an annual effect on the economy of $100 million or more. A summary of the FAA's estimates of the costs and benefits is provided below. However, because the rulemaking is a costly undertaking, the FAA considers the final rule to be a "major" rule under Executive Order 12291. For this reason, the FAA prepared, and placed in the docket, a Regulatory Impact Analysis of the final rule. In addition, because the rule involves issues of substantial interest to the public, the FAA determined that the rulemaking is significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034; February 2, Rules and Regulations 47053 rule on these entities, the FAA estimated that approximately 1,500 entities, the same number as repair stations, are engaged in operations listed in § 135.1(b) for compensation or hire. Based on these estimates, the FAA estimated that 538,000 persons will be subject to drug testing in 1991 pursuant to the requirements of the final rule. The FAA estimated that the cost of an initial screening test for the presence of drugs or drug metabolites will be $25 per test. The FAA expects that 12.5 percent of initial screening tests will require confirmation testing in accordance with the guidelines and standards contained in Appendix I to Part 121. Of the total initial screening tests, 7.5 percent are expected to be confirmed as true positives; 5.0 percent are expected to result in false positive test results after confirmation. The remainder are not 1979). expected to be confirmed as positive Costs. The FAA estimated that the either because the specimen failed to requirements of the final rule, over the meet the minimum threshold to be 10-year period from 1990 to 1999, will scientifically considered as positive, or cost approximately $240.3 million in because the specimen did not show the 1987 dollars (an average of $24.0 million presence of drugs or drug metabolites. per year) or approximately $135.2 Confirmation tests are estimated to cost million discounted over that 10-year $35 per test. The FAA notes that an period. The discounted cost includes employer can realize substantial savings (rounded to the nearest million) $97.1 by contracting with a drug testing million for random testing; $6.2 million for periodic testing, postaccident testing, laboratory for a fixed price that includes the cost of initial screening tests and testing -based on reasonable cause, and confirmation tests rather than paying for return-to-duty testing; $8.6 million for these tests separately. For example, the preemployment testing; $10.6 million for blind samples submitted to laboratories; Coast Guard currently pays a single, fixed price of $21 for screening tests and $10.3 million for EAP education and any resulting confirmation tests under a training cost; and $2.4 million for costs single contract with a drug testing associated with preparation and laboratory. submission of an employer's anti-drug The FAA estimated that a screening program. test will require 15 minutes of a person's Costs of postaccident testing, testing time to provide information for chain-ofbased on reasonable cause, and returncustody forms and to provide a urine to-duty testing are included as part of sample for drug testing. Thus, the FAA periodic testing costs. The FAA used included a factor equal to 25 percent of one-half of one percent of the estimated an average, fully allocated, hourly wage population tested annually as the for each occupational group covered by number that will be tested under one of the final rule. The FAA also assumed these three circumstances. The analysis that affected persons will provide urine of these costs is set forth in the full samples for testing while on duty. The Regulatory Impact Analysis (Exhibit A) FAA included $35 per test as an included in the public docket. administrative cost to cover, among The final rule will affect 149 entities other things, collection of specimens, that hold Part 121 certificates, 3,614 reporting and recordkeeping, and chainentifies that hold Part 135 certificates -of-custody procedure costs. The FAA providing scheduled and on-demand recognizes that these costs can vary service, and contractors who provide services to those certificate holders. The significantly depending on a number of' variables. For example, specimens may rule also will affect an undetermined number of entities engaged in operations be collected in a medical setting (i.e., in listed in § 135.1(b) for compensation or a hospital or a clinic, in the presence of hire. The FAA has been unable to medical doctors, nurses, medical determine the exact number of these technicians). Collection of specimens in organizations due to the highly a medical setting is not required by this diversified and multipurpose nature of rule. Less expensive settings and their operations. For purposes of nonmedical personnel trained for analyzing the cost impact of the final specimen collection may be used by the 47054 Federal Register / Vol. 53, No. 224 / Monday, NoVember 21, 1988 / Rules and Regulations aviation industry. Collection sites may be either centrally located or dispersed throughout remote geographical locations. DOT's drug testing program and the FAA's periodic drug testing program illustrate the cost variations associated with specimen collection. DOT uses a contractor to collect specimens at various, dispersed locations throughout the country. DOT pays an average of $123 for each specimen collected. Specimens collected as part of the FAA periodic testing program are collected by aviation medical examiners. Collection costs for periodic tests range from $10 to $45 per specimen. The FAA considered these costs when estimating the administrative costs of the final rule. After consideration of the cost variations, the estimated administrative costs are representative of the costs expected in the aviation industry. The FAA increased the administrative costs contained in the NPRM on the basis of information submitted by commenters. The FAA believes that the aviation industry will find the most economical method of sample collection and will do so at costs that most closely mirror the costs charged to the FAA by aviation medical examiners for collection of specimens for periodic testing. In the case of most postaccident testing, testing based on reasonable cause, and testing after return to duty triggered by refusal to submit to a test or failure of a previous drug test, the FAA assumed that collection costs for these tests are the same as the collection costs for random tests. However, the FAA assumed that the cost associated with collection of a small percentage of postaccident specimens would be $100 per test. The FAA used this higher figure to address the probability that postaccident specimens may be collected at a remote accident site or a location other than a site that the employer routinely collects specimens. Conversely, specimens collected for testing based on reasonable cause or testing after return to duty could be collected in a central location or at the same location where other specimens -are collected pursuant to the requirements of the final rule. Benefits. The FAA believes that three major benefits will result from the promulgation of the final rule. First, benefits will accrue from the prevention of potential injuries or fatalities and property losses due to accidents attributed to neglect or error on the part' of employees performing sensitive safety- or security-related functions whose motor skills or judgment may be impaired by drugs. Second, benefits will accrue based on the potential reduction in employee absences from work, lost productivity, reduced nedical and insurance costs due to on-the-job accidents, and improved general safety in the workplace. Third, broad benefits in the development of air commerce will accrue from projected diminished drug use by commercial aviation employees, thereby increasing public confidence in the commercial aviation transporation industry. A review of the commerical aviation safety record shows that drug use may have been a cause or factor in only two recent aviation accidents. One accident was in 1983 and involved an all-cargo operation. The second accident was in 1988 and involved a passenger operation. Both accidents have been described previously in this rulemaking document. Drug use has not been established as a definitive causal factor of either accident. In the absence of readily-available statistical data depicting the extent of drug use by employees in commercial aviation and in light of the.pernicious effects of drug use, the FAA does not consider the existing safety record to be an exclusive and valid indicator of the threat to aviation safety posed by aviation employee drug use. However, allegations of drug use by the pilot and copilot of Continental Air Express Flight 2286 that crashed on January 19, 1988, killing 9 people, reveal the significant and real potential for fatal aircraft accidents that may be related to the use of drugs in commercial aviation. In light of data regarding drug use by mechanics and repairmen submitted in reponse to the ANPRM, the FAA also is concerned about the potential for aviation accidents attributable to drug use by commercial aviation maintenance personnel. The FAA estimates that $84.3 million in discounted benefits would result from promulgation of the final rule if one accident attributed to drug-impaired performance by an individual who performs a sensitive safety- or securityrelated function in commercial aviation, involving a narrow-body, three-engine, commercial aircraft carrying 133 passengers and 5 crewmembers, is prevented during the 10-year period from 1990 to 1999 (Exhibit E). Although not claimed as a benefit in this Regulatory Impact Analysis, the benefits associated with the prevention of a single accident, during the 1O-year period from 1990 to 1999, would be considerably more if the accident involved a 4-engine, wide-body aircraft carrying 289 passengers and 19 crewmembers. In this event, discounted benefits would total $219.9 million. The FAA also attempted to estimate benefits of the final rule, other than those benefits that may result from the prevention of aircraft accidents, associated with diminished drug use by commercial aviation personnel or any drug-deterrent effect that would result from promulgation of the final rule. These estimated benefits consist of improved employee productivity as a result of drug use deterrence. A report released in 1987 by the National Institute on Drug Abuse (NIDA), entitled "Strategic Planning for Workplace Drug Abuse Programs," reveals that drug and alcohol abusers are involved in an additional 3.6 more accidents than nonabusers; file 1.5 additional workers' compensation claims than nonabusers; file 2.5 times more often for sick leave of 8 or more consecutive days than nonabusers; and incur 3 times the amount of normal medical costs than nonabusers. ' In the absence of pertinent data, the FAA assumed that the rate of drug use by the 538,000 covered aviation personnel is approximately the same as the rate of drug use in the general population (e.g., 10 percent). The FAA also assumed that the productivity of employees who use drugs is 95 percent of the productivity of employees who do not use drugs. In order to be conservative in estimating the costs of the final rule, the FAA assumed that 7.5 percent of the covered aviation personnel-would produce-test results that.are confirmed positie for prohibited drug use. However, this estimate is premiped on testing that produces optimum detection rates and the fact that drug users may continue to use drugs despite implementation of a comprehensive drug testing program that includes unannounced testing based on random selection. Realistically, the FAA expects that testing pursuant to the final rule will not achieve optimum detection rates and that some drug users will cease to use drugs rather than face the consequences of being detected by testing under the final rule. The FAA hypothesized that 1.0 percent of the affected aviation population will stop using drugs voluntarily in the face of a comprehensive drug testing program. These individuals are expected to continue to perform sensitive safety- or security-related functions without the presence of drugs or drug metabolites in their systems. As noted above, the FAA assumed that drug users are 95 percent effective at their jobs compared to Federal Register I Vol. 53, No. 224 employees who do not use drugs. Thus, the aviation industry would realize a 5 percent on-the-job productivity increase for each individual who ceases to use drugs. Therefore, the FAA estimated that employee productivity gains of $97.3 million, or $54.3 million discounted over the 10-year period from 1990 to 1999, will accrue to the aviation industry based on the reduction of illegal drug use and increased employee productivity (see Exhibit G). Benefit/Cost Comparison.The total cost of compliance with the requirements of the final rule is estimated to be $240.3 million in 1987 dollars and $135.2 million, at a present worth discount rate of 10 percent, over the projected 10-year period form 1990 to 1999. The FAA has been unable to quantitatively estimate the accident prevention effectiveness of the final rule. Nevertheless, the FAA believes that drug use, unless stemmed, will continue to pose a threat to aviation safety. The FAA estimates that preventing one accident involving an average size, commercial, passenger aircraft during the 10-year period from 1990 to 1999 would result in discounted benefits of $84.3 million. Likewise, discounted benefits ensuing from increased employee productivity are estimated to be $54.3 million. Thus, total discounted benefits expected to result from promulgation of the final rule amount to $138.6 million. The benefit to cost ratio of the final rule is 1.03. Regulatory Flexibility Determination The Regulatory Flexibility Act of 1980 requires a Federal agency to review any final rule to assess its impact on small businesses. In consideration of the cost information discussed previously and included in the full Regulatory Impact Analysis, the FAA certifies that the final rule may have a significant negative economic impact on a substantial number of small entities. In an effort to relieve the burden on small entities, the FAA modified the requirements of the final rule and provided alternative schedules and implementation periods directed solely at small aviation entities to provide some measure of relief from the costs associated with the rule. The FAA anticipates that these modifications will reduce burdens associated with the requirements of the final rule on small entities without adversely affecting aviation safety. International Trade Impact Statement The final rule will affect only domestic operators and, therefore, will have no impact on trade opportunities for U.S. firms doing business overseas or on foreign firms doing business in the i Monday, November 21, 1988 / Rules and Regulations United States. It should be noted that, unless compliance with this final rule would violate the domestic laws of policies of a foreign country or a foreign government contends that application of the rule raises questions of compatibility with foreign laws or policies, individuals employed at foreign repair stations under contract to U.S. certificate holders would not be able to perform maintenance or preventive maintenance work on U.S.-registered aircraft unless they participate in an anti-drug program. Thus, foreign repair stations may be affected economically. Likewise, this program also will result in an expense to U.S. certificate holders operating overseas because these entities will be required to establish anti-drug programs, which will not be required of their foreign competitors. The FAA is unable to estimate the possible competitive effect of these costs. Paperwork Reduction Act Approval In order to ensure compliance and effectiveness of the final rule, the FAA included necessary reporting and recordkeeping requirements in the provisions of the final rule. The final rule requires employers to maintain records related to employee drug testing and any rehabilitation and to submit periodic, written reports to the FAA that summarize an employer's anti-drug program. In accordance with the Paperwork Reduction Act of 1980, the recordkeeping and reporting requirements of the final rule have been submitted to the Office of Management and Budget (OMB) for approval. Federalism Implications The final rule adopted herein will not have substantial direct effects 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. This rule preeempts any State or local law that would prohibit or limit drug testing required under the rule. This preemption, under the FAA's statutory authority, is essential to ensure that the safety benefits are obtained throughout the nation's air transportation system. The rule also could have an indirect, economic impact on State and local governments, if persons who lose jobs as a result of a positive drug test require welfare benefits or other public social services. The FAA does not expect this impact to be significant, however. Therefore, in accordance with Executive Order 12612, the FAA determines that this final rule does not have sufficient federalism implications to warrant preparation of a Federalism Assessment. 47055 Conclusion The final rule requires domestic and supplemental air carriers, commercial operators of large aircraft, air taxi and commuter operators, certain commercial operators, certain contractors to these operators, located in the United States or in a foreign country, and air traffic control facilities not operated by the FAA or the U.S. military to have an antidrug program for employees who perform, either in the United States or in a foreign country, sensitive safety- or security-related functions. Testing under this final rule will be conducted by an employer prior to employment, periodically, randomly, after an accident, based on reasonable cause, and after an employee returns to duty to perform a sensitive safety- or securityrelated function for an employer. The final rule also will require that an employer provide EAP education and training services to employees and supervisors. The rule is necessary to prohibit an employee from performing a sensitive safety- or security-related function for an employer while that employee has a prohibited drug in his or her system or if that employee has used drugs as evidenced by a drug test showing the presence of drugs or drug metabolites. The rule is intended to ensure a drug-free aviation workforce and to eliminate drug use and abuse in commercial aviation. The FAA believes that the final rule will reduce the potential for drug-related aviation accidents and will foster identification of commercial aviation employees who use drugs. Pursuant to the terms of the Regulatory Flexibility Act of 1980, the FAA certifies that the final rule may have a significant negative economic impact on a substantial number of small entities. The final rule will not result in an annual effect on the economy of $100 million or more, but because the requirements of the final rule are important and costly undertakings, the FAA considers the final rule to be a major rule pursuant to the criteria of Executive Order 12291. In addition, the rule involves issues of substantial interest to the public; thus, the FAA determines that the final rule is significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034; February 2, 1979). List of Subjects 14 CFR Part 61 Air safety, Air transportation, Aircraft, Aircraft pilots, Airmen, 47056 47056 Federal Register / Vol. 53, No. 224 / Monday, November 21, 1988 / Rules and Regulations Federal Register I Vol. 53, No. 224 I Monday, November 21, 1988 / Rules and Regulations Authority: 49 U.S.C. 1354, 1355,1421, 1422, Aviation safety, Drug abuse, Drugs, operator as defined in § 135.1(c) of this and 1427:49 U.S.C. 106(g) (Revised, Pub. L Narcotics, Pilots, Safety, Transportation. chapter, by a local law enforcement officer under his or her own authority, or 97-449. January 12,1983). 14 CFR Part 63 by an FAA inspector, under the 6. By adding a new § 65.23 to read as Air safety, Air transportation, circumstances specified in that follows: Aircraft, Airmen, Airplanes, Aviation appendix, is grounds for-§ 65.23 Refusal to submit to a drug test (1) Denial of an application for any safety, Drug abuse, Drugs, Narcotics, (a) This section applies tothis issued under or rating certificate Safety, Transportation. up to 1 year after the for a period of part (1) An employee who performs a 14 CFR Part65 date of that refusal; and function listed in Appendix I to Part 121 (2) Suspension or revocation of any Air safety, Air transporation, Aircraft, of this chapter for a Part 121 certificate Airmen, Aviation safety, Drug abuse, certificate or rating issued under this holder or a Part 135 certificate holder;, Drugs, Narcotics, Safety, Transportation. part. (2) An employee who performs a 14 CFR Part121 Air carriers, Air transportation, Aircraft, Aircraft pilots, Airmen, Airplanes, Aviation safety, Drug abuse, Drugs, Narcotics, Pilots, Safety, Transportation. 14 CFR Part 135 Air carriers, Air taxi, Air transporation, Aircraft, Airmen, Airplanes, Aviation safety, Drug abuse, Drugs, Narcotics, Pilots, Safety, Transportation. The Amendment Accordingly, the FAA amends Parts 61, 63, 65, 121, and 135 of the Federal Aviation Regulations (14 CFR Parts 61, 63, 65, 121, and 135) as follows: PART 61-CERTIFICATION: PILOTS AND FLIGHT INSTRUCTORS 1. The authority citation for Part 61 continues to read as follows: Authority: 49 U.S.C. 1354(a), 1355, 1421, 1422, and 1427; 49 U.S.C. 106(g) (Revised, Pub. L 97-449, January 12, 1983). 2. By adding a new § 61.14 to read as follows: § 61.14 Refusal to submit to a drug test (a) This section applies to(1] An employee who performs a function listed in Appendix I to Part 121 of this chapter for a Part 121 certificate holder or a Part 135 certificate holder, and (2) An employee who performs a function listed in Appendix I to Part 121 of this chapter for an operator as defined in § 135.1(c) of this chapter. An employee of a person conducting operations of foreign civil aircraft navigated within the United States pursuant to Part 375 or emergency mail service operations pursuant to Section 405(h) of the Federal Aviation Act of 1958 is excluded from the requirements of this section. (b) Refusal by the holder of a certificate issued under this part to take a test for a drug specified in Appendix I to Part 121 of this chapter when requested by a certificate holder, by an PART 63-CERTIFICATION: FLIGHT CREWMEMBERS OTHER THAN PILOTS 3. The authority citation for Part 63, Subpart A, is revised to read as follows: Authority: 49 U.S.C. 1354(a), 1355,1421, 1422, 1427, 1429, and 1430; 49 U.S.C. 106(g) (Revised, Pub. L.97-449, January 12, 1983). 4. By adding a new § 63.12b to read as follows: § 63.12b Refusal to submit to a drug test. (a) This section applies to(1) An employee who performs a function listed in Appendix I to Part 121 of this chapter for a Part 121 certificate holder or a Part 135 certificate holder, and (2) An employee who performs a function listed in Appendix I to Part 121 of this chapter for an operator as defined in § 135.1(c) of this chapter. An employee of a person conducting operations of foreign civil aircraft navigated within the United States pursuant to Part 375 or emergency mail service operations pursuant to section 405(h) of the Federal Aviation Act of 1958 is excluded from the requirements of this section. (2) Refusal by the holder of a certificate issued under this part to take a test for a drug specified in Appendix I to Part 121 of this chapter when requested by a certificate holder, by an operator as defined in § 135.1(c) of this chapter, by a local law enforcement officer under his or her own authority, or by an FAA inspector, under the circumstances specified in that appendix, is grounds for(1) Denial of an application for any certificate or rating issued under this part for a period of up to 1 year after the date of that refusal; and (2) Suspension or revocation of any certificate or rating issued under this part. PART 65--CERTIFICATION: AIRMEN OTHER THAN FLIGHT CREWMEMBERS 5. The authority citation for Part 65 continues to read as follows: function listed in Appendix I to Part 121 of this chapter for an operator as defined in § 135.1(c) of this chapter. An employee of a person conducting operations of foreign civil aircraft navigated within the United States pursuant to Part 375 or emergency mail service operations pursuant to section 405(h) of the Federal Aviation Act of 1958 is excluded from the requirements of this section; and (3) An employee of an air traffic control facility not operated by, or under contract with, the FAA or the U.S. military.. (b) Refusal by the holder of a certificate issued under this part to take a test for a drug specified in Appendix I to Part 121 of this chapter when requested by a certificate holder, by an operator as defined in § 135.1(c) of this chapter, by an employer as defined in § 65.46 of this part, by a local law enforcement officer under his or her own authority, or by an FAA inspector, under the circumstances specified in that appendix, is grounds for(1) Denial of an application for any certificate or rating issued under this part for a period of up to I year after the date that that refusal; and (2) Suspension or revocation of any certificate or rating issued under this part. 7. By adding a new § 65.46 to read as follows: § 65.46 Use of prohibited drugs. (a) The following definitions apply for the purposes of this section: (1) An "employee" is a person who performs an air traffic control function for an employer. For the purpose of this section, a person who performs such a function pursuant to a contract with an employer is considered to be performing that function for the employer. (2) An "employer" means an air traffic control facility not operated by, or under contract with, the FAA or the U.S. military that employs a person to perform an air traffic control function. (b) Each employer shall provide each .employee performing a function listed in Appendix I to Part 121 of this chapter Federal Register / Vol. 53, No. 224 / Monday, November 21, -1988 / Rules and Regulations and his or her supervisor with the training specified in that appendix. No employer may use any contractor to perform an air traffic control function unless that contractor provides each of its employees performing that function for the employer and his or her supervisor with the training specified in that appendix. (c) No employer may knowingly use any person to perform, nor may any person perform for an employer, either directly or by contract, any air traffic control function while that person has a prohibited drug, as defined in Appendix I to Part 121 of this chapter, in his or her system. (d) Except as provided in paragraph (e) of this section, no employer may knowingly use any person to perform, nor may any person perform for an employer, either directly or by contract, any air traffic control function if that person failed a test or refused to submit to a test required by Appendix I to Part 121 of this chapter given by a certificate holder, by an employer, or by an operator as defined in § 135.1(c) of this chapter. (e) Paragraph (d) of this section does not apply to a person who has received a recommendation to be hired or to return to duty from a medical review officer in accordance with Appendix I to Part 121 of this chapter or who has received a special issuance medical certificate after evaluation by the Federal Air Surgeon for drug dependency in accordance with Part 67 of this chapter. (f) Each employer shall test each of its employees who performs any air traffic control function in accordance with Appendix I to Part 121 of this chapter. No employer may use any contractor to perform any air traffic control function unless that contractor tests each employee performing such a function for the employer in accordance with that appendix. PART 121-CERTIFICATION AND OPERATIONS: DOMESTIC, FLAG, AND SUPPLEMENTAL AIR CARRIERS AND COMMERCIAL OPERATORS OF LARGE AIRCRAFT 8. The authority citation for Part 121 continues to read as follows: Authority: 49 U.S.C. 1354(a), 1355,1356, 1357, 1401, 1421-1430, 1472, 1485, and 1502; 49 U.S.C. 106(g) (Revised, Pub. L 97-449, January 12, 1983). 9. By adding a new § 121.429 to read as follows: §121.429 Prohibited drugs. (a) Each certificate holder shall provide each employee performing a function listed in Appendix I to this part and his or her supervisor with the training specified in that appendix. (b) No certificate holder may use any contractor to perform a function listed in Appendix I to this part unless that contractor provides each of its employees performing that function for the certificate holder and his or her supervisor with the training specified in that appendix. 10. By adding a new § 121.455 to read as follows: § 121.455 Use of prohibited drugs. (a) This section applies to persons who perform a function listed in Appendix I to this part for the certificate holder. For the purpose of this section, a person who performs such a function pursuant to a contract with the certificate holder is considered to be performing that function for the certificate holder. (b) No certificate holder may knowingly use any person to perform, nor may any person perform for a certificate holder, either directly or by contract, any function listed in Appendix I to this part while that person has a prohibited drug, as defined in that appendix, in his or her system. (c) Except as provided in paragraph (d) of this section, no certificate holder may knowingly use any person to perform, nor may any person perform for a certificate holder, either directly or by contract, any function listed in Appendix I to this part if that person failed a test or refused to submit to a test required by that appendix given by a certificate holder or an operator as defined in § 135.1(c) of this chapter. (d) Paragraph (c) of this section does not apply to a person who has received a recommendation to be hired or to return to duty from a medical review officer in accordance with Appendix I to Part 121 of this chapter or who has received a special issuance medical certificate after evaluation by the Federal Air Surgeon for drug dependency in accordance with Part 67 of this chapter. 11. By adding a new § 121.457 to read as follows: § 121.457 Testing for prohibited drugs. 47057 12. By adding a new Appendix I to Part 121 to read as follows: Appendix I-Drug Testing Program This appendix contains the standards and components that must be included in an antidrug program required by this chapter. I. DOTProcedures.Each employer shall ensure that drug testing programs conducted pursuant to this regulation comply with the requirements of this appendix and the "Procedures for Transportation Workplace Drug Testing Programs" published by the Department of Transportation (DOT) (49 CFR Part 40). An employer may not use or contract with any drug testing laboratory that is not certified by the Department of Health and Human Services (DHHS) pursuant to the DHHS "Mandatory Guidelines for Federal Workplace Drug Testing Programs" (53 FR 11970; April 11, 1988]. II.Definitions.For the purpose of this appendix, the following definitions apply: "Accident" means an occurrence associated with the operation of an aircraft which takes place between the time any person boards the aircraft with the intention of flight and all such persons have disembarked, and in which any person suffers death or serious injury, or in which the aircraft receives substantial damage (49 CFR 830.2). "Annualized rate" for the purposes of unannounced testing of employees based on random selection means the percentage of specimen collection and testing of employees performing a function listed in section 111of this appendix during a calendar year. The employer shall determine the annualized percentage rate by referring to the total number of employees performing a sensitive safety- or security-related function for the employer at the beginning of a calendar year or by an alternative method specified in the employer's drug testing plan approved by the FAA. "Employee" is a person who performs, either directly or by contract, a function listed in section III of this appendix for a Part 121 certificate holder, a Part 135 certificate holder, an operator as defined in § 135.1(c) of this chapter (except operations of foreign civil aircraft navigated within the United States pursuant to Part 375 or emergency mail service operations pursuant to section 405(h) of the Federal Aviation Act of 1958), or an air traffic control facility not operated by, or under contract with, the FAA or the U.S. military. Provided however that an employee who works for an employer who holds a Part 135 certificate and who also holds a Part 121 certificate is considered to be an employee of the Part 121 certificate holder for the purposes of this appendix. "Employer" is a Part 121 certificate holder, a Part 135 certificate holder, an operator as defined in § 135.1(c) of this chapter (except (a) Each certificate holder shall test each of its employees who performs a function listed in Appendix I to this part in accordance with that appendix. operations of foreign civil aircraft navigated (b) No certificate holder may use any the United States pursuant to Part 375 contractor to perform a function listed In within or emergency mail service operations Appendix I to this part unless that pursuant to Section 405(h) of the Feders! contractor tests each employee *Aviation Act of 1958), or an air traffic control performing such a function for the facility not operated by, or under contract certificate holder in accordance with with, the FAA or the U.S. military. Provided, however, that an employer may use a person that appendix. 47058 47058 Federal Register / Vol. 53, No. 224 / Monday, November 21, 1988 / Rules and Regulations Federal Register / Vol. 53, No. 224 / Monday, November 21, 1988 I Rules and Re~'a1ations to perform a function listed in section III of this appendix, who is not included under that employer's drug program, if that person is subject to the requirements of another employer's FAA-approved anti-drug program. "Failing a drug test" means that the test result shows positive evidence of the presence of a prohibited drug or drug metabolite in an employee's system. "Passing a drug test" means that the test result does not show positive evidence of the presence of a prohibited drug or drug metabolite in an employee's system. "Positive evidence" means the presence of a drug or drug metabolite in a urine sample at or above the test levels listed in the DOT "Procedures for Transportation Workplace Drug Testing Programs" (49 CFR Part 40]. "Prohibited drug" means marijuana, cocaine, opiates, phencyclidine (PCP), amphetamines, or a substance specified in Schedule I or Schedule IIof the Controlled Substances Act, 21 U.S.C. 811. 812 (1981 & 1987 Cum.P.P.), unless the drug is being used as authorized by a legal prescription or other exemption under Federal, state, or local law. "Refusal to submit" means refusal by an individual to provide a urine sample after he or she has received notice of the requirement to be tested in accordance with this appendix. III. Employees Who Must Be Tested. Each person who performs a function listed in this section must be tested pursuant to an FAAapproved anti-drug program conducted in accordance with this appendix: a. Flight crewmember duties. b.Flight attendant duties. c. Flight instruction or ground instruction duties. d. Flight testing duties. e. Aircraft dispatcher or ground dispatcher duties. f. Aircraft maintenance or preventive maintenance duties. g. Aviation security or screening duties. h. Air traffic control duties. IV. Substances For Which Testing Must Be Conducted. Each employer shall test each employee who performs a function listed in section III of this appendix for evidence of marijuana, cocaine, opiates, phencyclidine (PCP), and amphetamines during each test required by section V of this appendix. As part of reasonable cause drug testing program established pursuant to this part, employers may test for drugs in addition to those specified in this part only with approval granted by the FAA under 49 CFR Part 40 and for substances for which the Department of Health and Human Services has established an approved testing protocol and positive threshhold. V. Types of Drug Testing Required.Each employer shall conduct the following types of testing in accordance with the procedures set forth in this appendix and the DOT "Procedures for Transportation Workplace Drug Testing Programs" (49 CFR Part 40): A. Preemployment testing.No employer may hire any person to perform a function listed in section III of this appendix unless the applicant passes a drug test for that employer. The employer shall advise an applicant at the time of application that preemployment testing will be conducted to determine the presence of marijuana, cocaine, opiates, phencyclidine (PCP], and amphetamines or a metabolite of those drugs in the applicant's system. B. Periodictesting. Each employee who performs a function listed in section III of this appendix for an employer and who is required to undergo a medical examination under Part 67 of this chapter, shall submit to a periodic drug test. The employee shall be tested for the presence of marijuana, cocaine, opiates, phencyclidine (PCP), and amphetamines or a metabolite of those drugs as part of the first medical evaluation of the employee during the first calendar year of implementation of the employer's anti-drug program. An employer may discontinue periodic testing of its employees after the first calendar year of implementation of the employer's anti-drug program when the employer has implemented an unannounced testing program based on random selection of employees. C. Random testing. Each employer shall randomly select employees who perform a function listed in section III of this appendix for the employer for unannounced drug testing. The employer shall randomly select employees for unannounced testing for the presence of marijuana, cocaine, opiates, phencyclidine (PCP), and amphetamines or a metabolite of those drugs in an employee's system using a random number table or a computer-based, number generator that is matched with an employee's social security number, payroll identification number, or any other alternative method approved by the FAA. (1) During the first 12 months following implementation of unannounced testing based on random selection pursuant to this appendix, an employer shall meet the following conditions: (a) The unannounced testing based on random selection of employees shall be spread reasonably throughout the 12-month period. (b) The last collection of specimens for random testing during the year shall be conducted at an annualized rate equal to not less than 50 percent of employees performing a function listed in section III of this appendix. (c) The total number of unannounced tests based on random selection during the 12months shall be equal to not less than 25 percent of the employees performing a function listed in section III of this appendix. (2)Following the first 12 months, an employer shall achieve and maintain an annualized rate equal to not less than 50 percent of employees performing a function listed in section III of this appendix. D. Postoccidenttesting.Each employer shall test each employee who performs a function listed in section III of this appendix for the presence of marijuana, cocaine, opiates, phencyclidine (PCP), and amphetamines or a metabolite of those drags in the employee's system if that employee's performance either contributed to an accident or cannot be completely discounted as a contributing factor to the accident. The employee shall be tested as soon as possible but not later than 32 hours after the accident. The decision not to administer a test under this section must be based on a determination, using the best information available at the time of the accident, that the employee's performance could not have contributed to the accident.,The employee shall submit to postaccident testing under this section. E. Testing basedon reasonablecause. Each employer shall test each employee who performs a function listed in section III of this appendix and who is reasonably suspected of using a prohibited drug. Each employer shall test an employee's specimen for the presence of marijuana, cocaine, opiates, phencyclidine (PCP), and amphetamines or a metabolite of those drugs. An employer may test an employee's specimen for the presence of other prohibited drugs or drug metabolites only in accordance with this appendix and the DOT "Procedures for Transportation Workplace Drug Testing Programs" (49 CFR Part 40). At least two of the employee's supervisors, one of whom is trained in detection of the possible symptoms of drug use, shall substantiate and concur in the decision to test an employee who is reasonably suspected of drug use. In the case of an employer holding a Part 135 certificate who employs 50 or fewer employees who perform a function listed in section III of this appendix or an operator as defined in § 135.1(c) of this chapter, one supervisor, who is trained in detection of possible symptoms of drug use, shall substantiate the decision to test an employee who is reasonably suspected of drug use. The decision to test must be based on a reasonable and articulable belief that the employee is using a prohibited drug on the basis of specific, contemporaneous physical, behavioril, or performance indicators of probable drug use. F. Testing after return to duty. Each employer shall implement a reasonable program of unannounced testing of each individual who has been hired and each employee who has returned to duty to perform a function listed in section III of this appendix after failing a drug test conducted in accordance with this appendix or after refusing to submit to a drug test required by this appendix. The individual or employee shall be subject to unannounced testing for not more than 60 months after the individual has been hired or the employee has returned to duty to perform a function listed in section III of this appendix. VI. Administrative Matters.-A. Collection, testing, and rehabilitationrecords.Each employer shall maintain all records related to the collection process, including all logbooks and certification statements, for two years. Each employer shall maintain records of employee confirmed positive drug test results and employee rehabilitation for five years. The employer shall maintain records of negative test results for 12 months. The employer shall permit the Administrator or the Administrator's representative to examine these records. B. Laboratoryinspections. The employer shall contract only with a laboratory that permits pre-award inspections by the employer before the laboratory is awarded a testing contract and unannounced inspections, including examination of any Federal Register / Vol. 53, No. 224 / Motiday, Novembei 21, '1988 / Rules andRegulations and all records at any time by the employer, the Administrator, or the Administrator's representative. C. Employee request to retest a specimen. Not later than 60 days after receipt of a confirmed positive test result, an employee may submit a written request to the MRO for retesting of the specimen producing the positive test result. Each employee may make one written request that a sample of the specimen be provided to the original or another DHHS-certified laboratory for testing. The laboratories shall follow chainof-custody procedures. The employee shall pay the costs of the additional test and all handling and shipping costs associated with the transfer of the specimen to the laboratory. D. Release of Drug Testing Information.An employer may release informatidn regarding an employee's drug testing results or rehabilitation to a third party only with the specific, written consent of the employee authorizing release of the information to an identified person. Information regarding an employee's drug testing results or rehabilitation may be released to the National Transportation Safety Board as part of an accident investigation, to the FAA upon request, or as required by section VII.C.5 of this appendix. VII. Review of Drug Testing Results. The employer shall designate or appoint a medical review officer (MRO). If the employer does not have a qualified individual on staff to serve as MRO, the employer may contract for the provision of MRO services as part of its drug testing program. A. MRO qualifications.The MRO must be a licensed physician with knowledge of drug abuse disorders. B.MRO duties. The MRO shall perform the following functions for the employer: 1. Review the results of the employer's drug testing program before the results are reported to the employer and summarized for the FAA. 2. Within a reasonable time, notify an employee of a confirmed positive test result. 3. Review and interpret each confirmed positive test result in order to determine if there is an alternative medical explanation for the confirmed positive test result. The MRO shall perform the following functions as part of the review of a confirmed positive test result: a. Provide an opportunity for the employee to discuss a positive test result with the MRO. b. Review the employee's medical history and any relevant biomedical factors. c. Review all medical records made available by the employee to determine if a confirmed positive test resulted from legally prescribed medication. d. Verify that the laboratory report and assessment are correct. The MRO shall be authorized to request that the original specimen be reanalyzed to determine the accuracy of the reported test result. 4. Process employee requests to retest a specimen in accordance with section VI.C of this appendix. 5. Determine whether and when, consistent with an employer's anti-drug program, a return-to-duty recommendation for a current employee or a decision to hire an individual to perform a function listed in section III of this appendix after failing a test conducted In accordance with this appendix or after refusing to submit to a test required by this appendix, including review of any rehabilitation program in which the individual or employee participated, may be made. 6. Ensure that an individual or employee has been tested in accordance with the procedures of this appendix and the DOT "Procedures for Transportation Workplace Drug Testing Programs" (49 CFR Part 40) before the individual is hired or the employee returns to duty. 7. Determine a schedule of unannounced testing for an individual who has been hired or an employee who has returned to duty to perform a function listed in section III of this appendix after the individual or employee has failed a drug test conducted in accordance with this appendix or has refused to submit to a drug test required by this appendix. C.MRO determinations.1. If the MRO determines, after appropriate review, that there is a legitimate medical explanation for the confirmed positive test result that is consistent with legal drug use, the MRO shall conclude that the test result Is negative and shall report the test as a negative test result 2. If the MRO determines, after appropriate review, that there is no legitimate medical explanation for the confirmed positive test result that is consistent with legal drug use, the MRO shall refer the employee to an employer's rehabilitation program is available or to a personnel or administrative officer for further proceedings in accordance with the employer's anti-drug program. 3. Based on a review of laboratory inspection reports, quality assurance and quality control data, and other drug test results, the MRO may conclude that a particular drug test result is scientifically insufficient for futher action. Under these circumstances, the MRQ shall conclude that the test is negative for the presence of drugs or drug metabolites in an employee's system. 4. In order to make a recommendation to hire an individual to perform a function listed in section III of this appendix or to return an employee to duty to perform a function listed in section III of this appendix after the individual or employee has failed a drug test conducted in accordance with this appendix or refused to submit to a drug test required by this appendix, the MRO shall-a. Ensure that the individual or employee Is drug free based on a drug test that shows no positive evidence of the presence of a drug or a drug metabolite in the person's system; b. Ensure that the individual or employee has been evaluated by a rehabilitation program counselor for drug use or abuse; and . c. Ensure that the individual or employee demonstrates compliance with any conditions or requirements of a rehabilitation program in which the person participated. 5.Notwithstanding any other section in this appendix, the MRO shall make'the following determinations in the case of an employee or applicant who holds, or is required to hold, a medical certificate issued pursuant to Part 67 of this chapter in order to perform a function listed in section III of this appendix for an employer. 47059 a. The MRO shall make a determination of probable drug dependence or nondependence as specified in Part 67 of this chapter. If the MRO makes a determination of nondependence, the MRO has authority to recommend that the employee return to duty in a position that requires the employee to hold a certificate issued under Part 67 of this chapter. The MRO shall forward the determination of nondependence, the returnto-duty decision, and any supporting documentation to the Federal Air Surgeon for review. b. If the MRO makes a determination of probable drug dependence at any time, the MRO shall report the name of the individual and identifying information, the determination of probable drug dependence, and any supporting documentation to the Federal Air Surgeon. The MRO does not have the authority to recommend that the employee return to duty in a position that requires the employee to hold a certificate issued under Part 67 of this chapter. The Federal Air Surgeon shall determine if the individual may retain or may be issued a medical certificate consistent with the requirements of Part 67 of this chapter. c. The MRO shall report to the Federal Air Surgeon the name of any employee who is required to hold a medical certificate issued pursuant to Part 67 of this chapter and who fails a drug test. The MRO shall report to the Federal Air Surgeon the name of any person who applies for a position that requires the person to hold a medical certificateissued pursuant to Part 67 of this chapter and who fails a preemployment drug test. d. The MRO shall forward the information specified in paragraphs (a). (b), and (c) of this section to the Federal Air Surgeon, Federal Aviation Administration, Drug Abatement Branch (AAM-220), 800 Independence Avenue, SW., Washington, DC 20591. VIII. Employee Assistance Program(EAP). The employer shall provide an EAP for employees. The employer may establish the EAP as a part of its internal personnel services or the employer may contract with an entity that will provide EAP services to an employee. Each EAP must include education and training on drug use for employees and training for supervisors making determinations for testing of employees based on reasonable cause. A. EAP education program.Each EAP education program must include at least the following elements: display and distribution of informational material; display and distribution of a community service hot-line telephone number for employee assistance; and display and distribution of the employer's policy regarding drug use in the workplace. B. EAP trainingprogram.Each employer shall implement a reasonable program of initial training for employees. The employee training program must include at least the following elements: The effects and consequences of drug use on personal health, safety, and work environment; the manifestations and behavioral cues that may indicate drug use and abuse; and documentation of training given to employees and employer's supervisory personnel. The 47060 47060 Federal Register / Vol. 53, No. 224 / Monday, November 21, 1988 / Rules and Regulations Federal Register / Vol. 53, No. 224 I Monday, November 21, 1988 I Ru1e~ and Re2ulations employer's supervisory personnel who will determine when an employee is subject to testing based on reasonable cause shall receive specific training on the specific, contemporaneous physical, behavioral, and performance indicators of probable drug use in addition to the training specified above. The employer shall ensure that supervisors who will make reasonable cause determinations receive at least 60 minutes of initial training. The employer shall implement a reasonable recurrent training program for supervisory personnel making reasonable cause determinations during subsequent years. The employer shall identify the employee and supervisor EAP training in the employer's drug testing plan submitted to the FAA for approval. IX. Employer's Drug Testing Plan.- A. Schedule for submission of plans and implementation. (1) Each employer shall submit a drug testing plan to the Federal Aviation Administration, Office of Aviation Medicine, Drug Abatement Branch (AAM220), 800 Independence Avenue, SW., Washington, DC 20591. (2) Each employer who holds a Part 121 certificate and each employer who holds a Part 135 certificate and employs more than 50 employees who perform a function listed in section III of this appendix shall submit an anti-drug program to the FAA (specifying the procedures for all testing required by this appendix) not later than 120 days after December 21, 1988. Each employer shall implement preemployment testing of applicants for a position to perform a function listed in section III of this appendix not later than 10 days after approval of the plan by the FAA. Each employer shall implement the remainder of the employer's anti-drug program no later than 180 days after approval of the plan by the FAA. (3) Each employer who holds a Part 135 certificate and employs from 11 to 50 employees who perform a function listed in section III of this appendix shall submit an interim anti-drug program to the FAA (specifying the procedures for preemployment testing, periodic testing, postaccident testing, testing based on reasonable cause, and testing after return to duty) not later than 180 days after December 21, 1988. Each employer shall implement the interim anti-drug program not later than 180 days after approval of the plan by the FAA. Each employer shall submit an amendment to its approved anti-drug program to the FAA (specifying the procedures for unannounced testing based on random selection) not later than 120 days after approval of the interim anti-drug program by the FAA. Each employer shall implement the random testing provision of its amended anti-drug program not later than 180 days after approval of the amendment. (4) Each employer who holds a Part 135 certificate and employs 10 or fewer employees who perform a function listed in section III of this appendix, each operator as defined in § 135.1(c) of this chapter, and each air traffic control facility not operated by, or under contract with the FAA or the U.S. military, shall submit an anti-drug program to the FAA (specifying the procedures for all testing required by this appendix) not later than 360 days after December 21, 1988. Each employer shall implement the employer's anti-drug program not later than 180 days after approval of the plan by the FAA. (5) Each employer or operator, who becomes subject to the rule as a result of the FAA's Issuance of a Part 121 or Part 135 certificate or as a result of beginning operations listed in § 135.1(b) for compensation or hire (except operations of foreign civil aircraft navigated within the United States pursuant to Part 375 or emergency mail service operations pursuant to section 405(h) of the Federal Aviation Act of 1958) shall submit an anti-drug plan to the FAA for approval, within the timeframes of paragraphs (2), (3), or (4) of this section, according to the type and size of the category of operations. For purposes of applicability of the timeframes, the date that an employer becomes subject to the requirements of this appendix is substituted for [the effective date of the rule]. B. An employer's anti-drug plan must specify the methods by which the employer will comply with the testing requirements of this appendix. The plan must provide the name and address of the laboratory which has been selected by the employer for analysis of the specimens collected during the employer's anti-drug testing program. C. An employer's anti-drug plan must specify the procedures and personnel the employer will use to ensure that a determination is made as to the veracity of test results and possible legitimate explanations for an employee failing a test. D. The employer shall consider its antidrug program to be approved by the Administrator, unless notified to the contrary by the FAA, within 60 days after submission of the plan to the FAA. X. ReportingResults of Drug Testing Program. A. Each employer shall submit a semiannual report to the FAA summarizing the results of its drug testing program and covering the period from January 1-June 30. Each employer shall submit a annual report to the FAA summarizing the results of its drug testing program and covering the period from January 1-December 31. Each employer shall submit these reports no later than 45 days after the last day of the report period. B. Each report shall contain: 1. The total number of tests performed and the total number of tests performed for each category of test. 2. The total number of positive test results by category of test: the total number of positive test results by each function listed in section III of this appendix; and the total number of positive test results by the type of drug shown in a positive test result. 3. The disposition of an individual who failed a drug test conducted in accordance with this appendix or who refused to submit to a drug test required by this appendix by each category of test. XI. Preemption. A. The issuance of these regulations by the FAA preempts any State or local law, rule, regulation, order, or standard covering the subject matter of this rule, including but not limited to, drug testing of aviation personnel performing sensitive safety- or security-related functions. B. The issuance of these regulations does not preempt provisions of State criminal law that impose sanctions for reckless conduct of an individual that leads to actual loss of life, injury, or damage to property whether such provisions apply specifically to aviation employees or-generally to the public. XII. Conflict with foreign laws or internationallaw. A. This appendix shall not apply to any person for whom compliance with this appendix would violate the domestic laws or policies of another country. B. This appendix is not effective until January 1,1990, with respect to any person for whom a foreign government contends that application of this appendix raises questions of compatability with that country's domestic laws or policies. On or before December 1, 1989, the Administrator shall issue any necessary amendment resolving the applicability of this appendix to such person on or after January 1, 1990. PART 135-AIR TAXI OPERATORS AND COMMERCIAL OPERATORS 13. The authority citation for Part 135 continues to read as follows: Authority: 49 U.S.C. 1354(a), 1355, 1421- 1431, and 1502; 49 U.S.C. 106(g) (Revised, Pub. L. 97-449, January 12, 1983). 14. By revising the introductory text of § 135.1(b) and adding new paragraph (c) and (d) to read as follows: § 135.1 Applicability. (b) Except as provided in paragraph (c) of this section, this part does not apply to(c) For the purpose of § § 135.249, 135.251, and 135.353, "operator" means any person or entity conducting an operation listed in paragraph (b) of this section for compensation or hire except operation of foreign civil aircraft navigated within the United States pursuant to Part 375 described in paragraph (b)(8) and emergency mail service operation pursuant to section 405(h) of the Federal Aviation Act of 1958 described in paragraph (b)(9). Each operator and each employee of an operator shall comply with the requirements of § § 135.249, 135.251, and 135.353 of this part. (d) Notwithstanding the provisions of paragraph (c) of this section, an operator who does not hold a Part 121 certificate or a Part 135 certificate is permitted to use a person, who is otherwise authorized to perform aircraft maintenance or preventive maintenance duties and who is not subject to the requirements of an FAA-approved antidrug program, to perform(1) Aircraft maintenance or preventive maintenance on the operator's aircraft if the operator would be required to transport the aircraft more than 50 nautical miles further than the closest Federal Register / Vol. 53, No. 224 / Mniday, November 21," 1988 / Rules and Regulations available repair point from the operator's principal place of operations to obtain these services; or (2) Emergency repairs on the operator's aircraft if the aircraft cannot be safely operated to a location where an employee subject to the requirements of this appendix can perform the emergency repairs. 15. By adding a new § 135.249 to read as follows: § 135.249 Use of prohibited drugs. (a) This section applies to persons who perform a function listed in Appendix I to Part 121 of this chapter for a certificate holder or an operator. For the purpose of this section, a person who performs such a function pursuant to a contract with the certificate holder or the operator is considered to be performing that function for the certificate holder or the operator. (b) No certificate holder or operator may knowingly use any person to perform, nor may any person perform for a certificate holder or an operator, either directly or by contract, any function listed in Appendix I to Part 121 of this chapter while that person has a prohibited drug, as defined in that appendix, in his or her system. (c) Except as provided in paragraph (d) of this section, no certificate holder or operator may knowingly use any person to perform, nor may any person perform for a certificate holder or an operator, either directly or by contract, any function listed in Appendix. I to Part 121 of this chapter if that person has failed a test or refused to submit to a test required by that appendix given by any certificate holder or any operator. (d) Paragraph (c) of this section does not apply to a person who has received a recommendation to be hired or to return to duty from a medical review officer in accordance with Appendix I to Part 121 of this chapter or who has received a special issuance medical certificate after evaluation by the Federal Air Surgeon for drug dependency in accordance with Part 67 of this chapter. 16. By adding a new § 135.251 to read as follows: § 135.251 Testing for prohibited drugs. (a) Each certificate holder or operator shall test each of its employees who performs a function listed in Appendix I to Part 121 of this chapter in accordance with that appendix. (b) No certificate holder or operator may use any contractor to perform a 47061 function listed in Appendix I to Part 121 of this chapter unless that contractor tests each employee performing such a function for the certificate holder or operator in accordance with that appendix. 17. By adding a new § 135.353 to read as follows: § 135.353 Prohibited drugs. (a) Each certificate holder or operator shall provide each employee performing a function listed in Appendix I to Part 121 of this chapter and his or her supervisor with the training specified in that appendix. (b) No certificate holder or operator may use any contractor to perform a function specified in Appendix I to Part 121 of this chapter unless that contractor provides each of its employees performing that function for the certificate holder or the operator and his or her supervisor with the training specified in that appendix. Issued in Washington, DC, on November 14, 1988. T. Allan McArtor, Administrator. [FR Doc. 88-26609 Filed 11-15--88; 3:49 pm] BILLING CODE 4910-13-M