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Antidrug and Alcohol Misuse Prevention Programs for Personnel Engaged in Specified Aviation Activities
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: April 5, 2006 (Volume 71, Number 65)]
[Rules and Regulations]
[Page 17000-17003]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05ap06-14]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 121
[Docket No. FAA-2002-11301; Amendment No. 121-324]
RIN 2120-AH14
Antidrug and Alcohol Misuse Prevention Programs for Personnel
Engaged in Specified Aviation Activities
AGENCY: Federal Aviation Administration (FAA); DOT.
ACTION: Final rule; delay of compliance date.
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SUMMARY: The FAA is delaying the compliance date for the final rule
clarifying that contractors, including subcontractors at any tier, must
be subject to drug and alcohol testing. This action is necessary
because it has come to our attention that some original equipment
manufacturers (OEMs) and other entities may be confused regarding
whether they are performing maintenance or preventive maintenance
duties subject to drug and alcohol testing, or manufacturing duties not
subject to testing. The effective date of April 10, 2006, will remain
the same, but this action extends the compliance date until October 10,
2006, which gives OEMs and others sufficient time to determine what
work is subject to drug and alcohol testing.
DATES: The effective date of the final rule published at 71 FR 1666
(January 10, 2006) remains April 10, 2006, but the compliance date is
delayed until October 10, 2006.
FOR FURTHER INFORMATION CONTACT: Diane J. Wood, Manager, Drug Abatement
Division, AAM-800, Office of Aerospace Medicine, Federal Aviation
Administration, 800 Independence Avenue, SW., Washington, DC 20591;
telephone (202) 267-8442.
SUPPLEMENTARY INFORMATION:
Availability of Final Rule
You can get an electronic copy using the Internet by:
(1) Searching the Department of Transportation's electronic Docket
Management System (DMS) Web page (http://dms.dot.gov/search); 
(2) Visiting the FAA's Regulations and Policies Web page at
http://www.faa.gov/regulations_policies/; or
(3) Accessing the Government Printing Office's Web page at
http://www.gpoaccess.gov/fr/index.html.
You can also get a copy by sending a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make
sure to identify the docket number, notice number, or amendment number
of this rulemaking.
Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires FAA to comply with small entity requests for information
or advice about compliance with statutes and regulations within its
jurisdiction. Therefore, any small entity that has a question regarding
this document may contact their local FAA official, or the
[[Page 17001]]
person listed under FOR FURTHER INFORMATION CONTACT. You can find out
more about SBRFA on the Internet at our site,
http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.
Authority for this Rulemaking
The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the United States Code. Subtitle I, section 106
describes the authority of the FAA Administrator. Subtitle VII, Aviation
Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in
subtitle VII, part A, chapter 451, section 45102, Alcohol and
Controlled Substances Testing Programs. Under section 45102, the FAA is
charged with prescribing regulations to establish programs for drug and
alcohol testing of employees performing safety-sensitive functions for
air carriers and to take certificate or other action when an employee
violates the testing regulations. This regulation is within the scope
of the FAA's authority because it will provide more time for entities
opting to conduct drug and alcohol testing and to identify which
employees are performing a safety-sensitive function for a regulated
employer by contract. This rulemaking is a current example of FAA's
continuing effort to ensure that only drug- and alcohol-free
individuals perform safety-sensitive functions for regulated employers.
The Final Rule
The FAA issued a final rule to clarify that each person who
performs a safety-sensitive function for a regulated employer by
contract, including by subcontract at any tier, is subject to testing
(71 FR 1666, January 10, 2006). The rulemaking clarified that there is
no differentiation between levels of contractors when safety-sensitive
work is being performed.
Since the inception of the drug and alcohol testing regulations in
1988 and 1994, respectively, (53 FR 47024, November 11, 1988; 59 FR
42922, August 19, 1994), individuals performing maintenance and
preventive maintenance for air carriers operating under part 121, 135,
or section 135.1(c) operators have been required to be subject to drug
and alcohol testing. Contractors, including subcontractors, have been
filing their drug and alcohol testing programs with the FAA since the
inception of the regulations. It has long been recognized by the
regulated air carrier employers and their contractors/subcontractors
that drug and alcohol testing has been required for maintenance and
preventive maintenance duties. Approximately 4,300 contractors,
including certificated repair stations and companies without
certificates, have filed their drug and alcohol testing programs and
more than 3,000 of these contractors have been inspected by the Drug
Abatement Division inspectors during the last 15 years.
Although it has been clear that outsourcing the maintenance
services does not relieve the air carriers of their obligations to
require testing of the individuals performing safety-sensitive work,
some individuals performing safety-sensitive functions by contract may
not have been subject to testing. It has come to our attention that
some original equipment manufacturers (OEMs) and other entities may be
confused as to whether they are performing manufacturing or maintenance
and preventive maintenance duties. This distinction is important
because employees engaged solely in manufacturing are not subject to
drug and alcohol testing, but those performing maintenance or
preventive maintenance are subject to drug and alcohol testing. As we
had done in 1988, when entities began testing for the first time, we
have decided to provide the contractors, including subcontractors at
any tier, extra time for complying with the drug and alcohol testing
regulations for the first time.
Also, on March 8, 2006, the FAA received a request to extend the
compliance date for the January 10, 2006, final rule. The petition was
submitted jointly by nine associations, including the Regional Airline
Association, and the Air Transport Association of America. This
petition requested the FAA to extend the effective date ``until 6
months after the issuance of the appropriate guidance by the FAA.''
Specifically, the petition requested guidance on ``what constitutes
maintenance'' and how higher tier contractors and employers can ensure
compliance by lower tier entities.
In response to the petition and in consideration of other industry
communications, we have decided to delay the compliance date for the
clarification regarding subcontractors for 6 months, until October 10,
2006. We believe that the extension of the compliance date provided in
this final rule will give OEMs and other entities that are not already
conducting testing additional time to determine if their work is
subject to drug and alcohol testing. The extra time will also give
these entities an opportunity to decide whether to conduct their own
testing programs or to make arrangements to have their employees
covered under the testing programs of the employers with whom they
contract. In response to the request for guidance, we will soon provide
more substantive guidance on a range of subjects such as cleaning of
aircraft, entertainment system components, deicing, and decorative
plating. In addition, we will provide a contact person to whom industry
can direct questions concerning maintenance and preventative maintenance.
Paperwork Reduction Act
There are no new requirements for information collection associated
with this amendment because this is only an extension of time for
entities complying for the first time with the drug and alcohol testing
regulations.
International Compatibility
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to comply with
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
reviewed the corresponding ICAO Standards and Recommended Practices and
has identified no differences with these proposed regulations.
Good Cause for ``No Notice''
Sections 553(b)(3)(B) and 553(d)(3) of the Administrative
Procedures Act (APA) (5 U.S.C. Sections 553(b)(3)(B) and 553(d)(3))
authorize agencies to dispense with certain notice procedures for rules
when they find ``good cause'' to do so. Under section 553(b)(3)(B), the
requirements of notice and opportunity for comment do not apply when
the agency for good cause finds that those procedures are
``impracticable, unnecessary, or contrary to the public interest.'' The
FAA finds that notice and public comment on this final rule are
impracticable. For the APA, ``impracticable'' means that, if notice and
comment procedures were followed, they would defeat the purpose of the
rule. As explained previously, the purpose of this final rule is to
extend the compliance date for subcontractors performing safety-
sensitive functions for a regulated employer to be covered under a drug
and alcohol testing program. The effective date of this clarification
remains April 10, 2006. This final rule extends the compliance date
until October 10, 2006. Coordinating and issuing rulemaking documents
will take time under current procedures. We cannot issue a notice,
[[Page 17002]]
receive comments, and issue a final rule before the current effective
date. OEMs and other entities that had not previously chosen to
implement drug and alcohol testing may need additional time before the
compliance date to identify which employees are performing maintenance
or preventive maintenance duties and to implement their drug and
alcohol testing programs for these employees. Any delay in issuing this
final rule could cause OEMs and other entities confusion if they try to
establish drug and alcohol testing programs too quickly and for the
wrong employees. Therefore, it is ``impracticable'' to provide notice
and opportunity to comment.
Good Cause for Immediate Adoption
In accordance with 5 U.S.C. 553(b)(3)(B), FAA finds good cause for
issuing this rule without prior notice and comment. Seeking public
comment is impracticable, unnecessary, and contrary to the public
interest. This delay of compliance date will give OEMs and other
entities sufficient time to implement their drug and alcohol testing
programs for the first time or to become covered under an employer's
drug and alcohol testing program, in accordance with 14 CFR part 121,
appendices I and J. Given the imminence of the effective date, seeking
prior public comments on this temporary delay would have been
impracticable, as well as contrary to the public interest in the
orderly promulgation and implementation of this rule.
Executive Order 12866 and DOT Regulatory Policies and Procedures
Executive Order 12866, Regulatory Planning and Review, directs the
FAA to assess both he costs and benefits of a regulatory change. We are
not allowed to propose or adopt a regulation unless we make a reasoned
determination that the benefits of the intended regulation justify its
costs. Our assessment of this proposal indicates that its economic
impact is minimal. Since its costs and benefits do not make it a
``significant regulatory action'' as defined in the Order, we have not
prepared a ``regulatory impact analysis.'' Similarly, we have not
prepared a ``regulatory evaluation,'' which is the written cost/benefit
analysis ordinarily required for all rulemaking proposals under the DOT
Regulatory and Policies and Procedures. We do not need to do the latter
analysis where the economic impact of a proposal is minimal.
Economic Evaluation, Regulatory Flexibility Determination, Trade Impact
Assessment, and Unfunded Mandates Assessment
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs each Federal agency to
propose or adopt a regulation only if the agency makes a reasoned
determination that the benefits of the intended regulation justify its
costs. Second, the Regulatory Flexibility Act of 1980 requires agencies
to analyze the economic impact of regulatory changes on small entities.
Third, the Trade Agreements Act (19 U.S.C. section 2531-2533) bans
agencies from setting standards that create unnecessary obstacles to
the foreign commerce of the United States. In developing U.S.
standards, the Trade Act requires agencies to consider international
standards. Where suitable, the Trade Act directs agencies to use those
international standards as the basis of U.S. standards. Fourth, the
Unfunded Mandates Reform Act of 1995 requires agencies to prepare a
written assessment of the costs, benefits, and other effects of
proposed or final rules. This requirement applies only to rules that
include a Federal mandate on State, local, or tribal governments,
likely to result in a total expenditure of $100 million or more in any
one year (adjusted for inflation). In conducting these analyses, the
FAA determines that this rule:
(1) Has benefits which justify its costs and is not a
``'significant regulatory action''' as defined in the Executive Order
and as defined in DOT's Regulatory Policies and Procedures;
(2) Will not have a significant impact on a substantial number of
small entities;
(3) Has minimal effects on international trade; and
(4) Does not impose an unfunded mandate on State, local, or tribal
governments or on the private sector.
Economic Summary
This rule extends the compliance date for OEMs and other entities
to establish their drug and alcohol testing programs or to join the
testing programs of the employers for which they are performing safety-
sensitive work. This action is necessary because some OEMs and other
entities who had not previously chosen to implement drug and alcohol
testing may be confused about which employees are subject to drug and
alcohol testing. Such contractors, including subcontractors at any
tier, may not have separated their manufacturing from their repair
duties. These contractors may need additional time before the
compliance date to identify which employees are performing maintenance
or preventive maintenance duties. These contractors will need to
implement their drug and alcohol testing programs for these employees
or to join the employees in the testing programs of the employers for
which they are performing safety-sensitive work.
Thus, delaying the compliance date for the rule by 6 months will
give the regulated entities additional time to determine which
employees need to be covered as well as the best options for testing.
The FAA believes that this extension will benefit these entities by
helping to eliminate any confusion and allowing them to make more
informed choices, potentially leading to lower implementation costs.
Regulatory Flexibility Determination
The Regulatory Flexibility Act (RFA) of 1980, 5 U.S.C. 601-612,
establishes ``as a principle of regulatory issuance that agencies shall
endeavor, consistent with the objective of the rule and of applicable
statutes, to fit regulatory and informational requirements to the scale
of the business, organizations, and governmental jurisdictions subject
to the regulation.'' To achieve that principle, the RFA requires
agencies to solicit and consider flexible regulatory proposals to
explain the rationale for their actions. The RFA covers a wide-range of
small entities, including small businesses, not-for-profit
organizations, and small governmental jurisdictions.
Agencies must perform a review to determine whether a proposed or
final rule will have a significant economic impact on a substantial
number of small entities. If the agency determines that it will, the
agency must prepare a regulatory flexibility analysis as described in
the RFA.
However, if an agency determines that a proposed or final rule is
not expected to have a significant economic impact on a substantial
number of small entities, section 605(b) of the RFA provides that the
head of the agency may so certify and a regulatory flexibility analysis
is not required. The certification must include a statement providing the
factual basis for this determination, and the reasoning should be clear.
This final rule merely extends the compliance date for the
subcontractor clarification final rule. Its economic impact is minimal.
Therefore, as the Administrator of the FAA, I certify that this action
will not have a significant economic impact on a substantial number of
small entities.
[[Page 17003]]
Trade Impact Assessment
The Trade Agreements Act of 1979 prohibits Federal agencies from
establishing any standards or engaging in related activities that
create unnecessary obstacles to the foreign commerce of the United
States. Legitimate domestic objectives, such as safety, are not
considered unnecessary obstacles. The statute also requires
consideration of international standards and, where appropriate, that
they be the basis for U.S. standards. The FAA has assessed the
potential effect of this final rule and determined that it has only a
domestic impact.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 requires each
Federal agency to prepare a written statement assessing the effects of
any Federal mandate in a proposed or final agency rule that may result
in a $100 million or more expenditure (adjusted annually for inflation)
in any one year by State, local, and tribal governments, in the
aggregate, or by the private sector; such a mandate is deemed to be a
``significant regulatory action.'' The FAA currently uses an inflation-
adjusted value of $120.7 million in lieu of $100 million.
This final rule does not contain such a mandate. Therefore, the
requirements of Title II of the Unfunded Mandates Reform Act of 1995 do
not apply.
Executive Order 13132, Federalism
The FAA has analyzed this final rule under the principles and
criteria of Executive Order 13132, Federalism. We determined that this
action will not have a substantial direct effect on the States, or the
relationship between the national Government and the States, or on the
distribution of power and responsibilities among the various levels of
government. Therefore, we have determined that this final rule does not
have federalism implications.
Environmental Analysis
FAA Order 1050.1E identifies FAA actions that are categorically
excluded from preparation of an environmental assessment or
environmental impact statement under the National Environmental Policy
Act in the absence of extraordinary circumstances. The FAA has
determined this proposed rulemaking action qualifies for the
categorical exclusion identified in paragraph 312(d) and involves no
extraordinary circumstances.
Regulations That Significantly Affect Energy Supply, Distribution, or Use
The FAA has analyzed this final rule under Executive Order 13211,
Actions Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (66 FR 28355, May 18, 2001). We have determined
that it is not a ``significant energy action'' under the executive
order because it is not a ``significant regulatory action'' under
Executive Order 12866, and it is not likely to have a significant
adverse effect on the supply, distribution, or use of energy.
List of Subjects in 14 CFR Part 121
Air carriers, Aircraft, Airmen, Alcohol abuse, Alcoholism, Aviation
safety, Charter flights, Drug abuse, Drug testing, Safety, Transportation.
The Amendment
For the reasons set forth above, the Federal Aviation
Administration is delaying the compliance date for the final rule
published January 10, 2006 (71 FR 1666) from April 10, 2006 until
October 10, 2006. The effective date of the January 10, 2006, final
rule remains April 10, 2006.
Issued in Washington, DC, on March 31, 2006.
Marion C. Blakey,
Administrator.
[FR Doc. 06-3277 Filed 3-31-06; 3:16 pm]
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