74898 Federal Register / Vol. 69, No. 239 / Tuesday, December 14, 2004 / Proposed Rules 

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration 

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

and 135

[Docket No. FAA–2004–19835] 

RIN 2120–AH82

Disqualification for Airman and 

Medical Certificate Holders Based on 

Alcohol Violations and Refusals to 

Submit to Drug or Alcohol Testing

AGENCY: Federal Aviation 

Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: The FAA proposes to amend 

the airman medical certification 

standards to disqualify an airman based 

on an alcohol test result of 0.04 or 

greater breath alcohol concentration 

(BAC) or a refusal to take a drug or 

alcohol test required by the Department 

of Transportation (DOT) or a DOT 

agency. Further, the FAA proposes to 

standardize the time period for 

reporting refusals and certain test 

results to the FAA, and to require 

employers to report pre-employment 

and return-to-duty test refusals. We also 

propose to amend the airman 

certification requirements to allow 

suspension or revocation of airman 

certificates for pre-employment and 

return-to-duty test refusals. Finally, we 

propose to amend the regulations to 

recognize current breath alcohol testing 

technology. These amendments are 

necessary to ensure that persons who 

engage in substance abuse do not 

operate aircraft or perform contract air 

traffic control tower operations until it 

is determined that these individuals can 

operate safely.

DATES: Send your comments to reach us 

by March 14, 2005.

ADDRESSES: You may send comments 

[identified by Docket Number 2004–

19835] using any of the following 

methods: 

• DOT Docket Web site: Go to http:/

/dms.dot.gov and follow the instructions 

for sending your comments 

electronically. 

• Government-wide rulemaking Web 

site: Go to http://www.regulations.gov

and follow the instructions for sending 

your comments electronically. 

• Mail: Docket Management Facility; 

U.S. Department of Transportation, 400 

Seventh Street, SW., Nassif Building, 

Room PL–401, Washington, DC 20590–

001. 

• Fax: 1–202–493–2251. 

• Hand Delivery: Room PL–401 on 

the plaza level of the Nassif Building, 

400 Seventh Street, SW., Washington, 

DC, between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

For more information on the 

rulemaking process, see the 

SUPPLEMENTARY INFORMATION section of 

this document. 

Privacy: We will post all comments 

we receive, without change, to http://

dms.dot.gov, including any personal 

information you provide. For more 

information, see the Privacy Act 

discussion in the SUPPLEMENTARY

INFORMATION section of this document. 

Docket: To read background 

documents or comments received, go to 

http://dms.dot.gov or to Room PL–401 

on the plaza level of the Nassif Building, 

400 Seventh Street, SW., Washington, 

DC, between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Sherry M. de Vries, Aeromedical 

Standards and Substance Abuse Branch, 

Medical Specialties Division, AAM–

210, Office of Aerospace Medicine, 

Federal Aviation Administration, 800 

Independence Avenue SW., 

Washington, DC 20591; telephone (202) 

267–8693.

SUPPLEMENTARY INFORMATION: 

Comments Invited 

The FAA invites interested persons to 

take part in this rulemaking by sending 

written comments, data, or views. We 

also invite comments about the 

economic, environmental, energy, or 

federalism impacts that might result 

from adopting the proposals in this 

document. The most helpful comments 

reference a specific portion of the 

proposal, explain the reason for any 

recommended change, and include 

supporting data. We ask that you send 

us two copies of written comments. 

We will file in the docket all 

comments we receive, as well as a 

report summarizing each substantive 

public contact with FAA personnel 

about this proposed rulemaking. The 

docket is available for public inspection 

before and after the comment closing 

date. If you wish to review the docket 

in person, go to the address in the 

ADDRESSES section of this preamble 

between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

You may also review the docket using 

the Internet at the web address in the 

ADDRESSES section. 

Before acting on this proposal, we 

will consider all comments we receive 

by the closing date for comments. We 

will consider comments filed late if it is 

possible to do so without incurring 

expense or delay. We may change this 

proposal because of the comments we 

receive. 

If you want the FAA to acknowledge 

receipt of your comments on this 

proposal, include with your comments 

a preaddressed, stamped postcard on 

which the docket number appears. We 

will stamp the date on the postcard and 

mail it to you. 

Privacy Act: Using the search function 

of our docket web site, anyone can find 

and read the comments received into 

any of our dockets, including the name 

of the individual sending the comment 

(or signing the comment on behalf of an 

association, business, labor union, etc.). 

You may review DOT’s complete 

Privacy Act Statement in the Federal 

Register published on April 11, 2000 

(65 FR 19477–78) or you may visit http:/

/dms.dot.gov. 

Availability of Rulemaking Documents 

You can get an electronic copy using 

the Internet by: 

(1) Searching the Department of 

Transportation’s electronic Docket 

Management System (DMS) web page 

(http://dms.dot.gov/search); 

(2) Visiting the Office of Rulemaking’s 

web page at http://www.faa.gov/avr/

arm/index.cfm; or 

(3) Accessing the Government 

Printing Office’s web page at http://

www.access.gpo.gov/su_docs/aces/

aces140.html. 

You can also get a copy by submitting 

a request to the Federal Aviation 

Administration, Office of Rulemaking, 

ARM–1, 800 Independence Avenue 

SW., Washington, DC 20591, or by 

calling (202) 267–9680. Make sure to 

identify the docket number, notice 

number, or amendment number of this 

rulemaking. 

Authority for This Rulemaking 

The FAA’s authority to issue rules 

regarding aviation safety is found in 

Title 49 of the United States Code. 

Subtitle I, Section 106 describes the 

authority of the FAA Administrator. 

Subtitle VII, Aviation Programs, 

describes in more detail the scope of the 

agency’s authority. 

This rulemaking is promulgated 

under the authority described in 

Subtitle VII, Part A, Chapter 447, 

Section 44703, Airman Certificates, and 

Chapter 451, Section 45102, Alcohol 

and Controlled Substances Testing 

Programs. Under Section 44703, the 

FAA is authorized to issue an airman 

certificate to an individual who ‘‘is 

qualified for, and physically able to 

perform the duties related to, the 

position to be authorized by the 

certificate.’’ Under Section 45102, the 

FAA is charged with prescribing 

regulations to establish programs for 

drug and alcohol testing employees 

Federal Register / Vol. 69, No. 239 / Tuesday, December 14, 2004 / Proposed Rules 74899

performing safety-sensitive functions for 

air carriers and to take certificate or 

other action when an employee violates 

the testing regulations. This regulation 

is within the scope of the FAA’s 

authority because it updates the existing 

regulations regarding airman 

certification of individuals who have 

violated the drug and alcohol testing 

regulations or who have otherwise 

demonstrated a substance abuse history 

through violation of State or local 

driving while intoxicated/driving under 

the influence laws. This rulemaking is 

a current example of FAA’s continuing 

efforts to ensure that only drug- and 

alcohol-free individuals perform pilot 

duties. 

Background 

The FAA is proposing to revise its 

regulations that apply to airmen who 

fail or refuse a drug or alcohol test. We 

proposed these changes to conform the 

FAA’s regulations to changes in DOT’s 

drug and alcohol testing regulations. 

In a final rule published on March 19, 

1996 (61 FR 11256), the FAA 

comprehensively revised our medical 

standards in 14 CFR part 67. The 

revisions recognized that a verified 

positive drug test result on a test 

required under the DOT internal 

program or under the industry 

regulations of a DOT agency is a 

disqualifying medical condition known 

as ‘‘substance abuse’’. When the 1996 

revisions were adopted, ‘‘substance 

abuse’’ did not specifically include 

breath alcohol test results and refusals 

to submit to a test required by the DOT 

or a DOT agency. 

In 2000, DOT changed its regulations 

to address many issues including 

refusals to submit to testing. In its final 

rule, DOT substantially revised its 

‘‘Procedures for Transportation 

Workplace Drug and Alcohol Testing 

Programs’’ (65 FR 79462, December 19, 

2000), which are the procedural 

provisions underlying the drug and 

alcohol testing regulations of the DOT 

agencies. In the NPRM, DOT explained 

‘‘adulteration and substitution are real 

and possibly increasing threats to the 

integrity of the Department’s drug 

testing program, with the potential for 

increased safety risks if drug users 

succeed in frustrating the testing 

process’’ (64 FR 69075, 69081, 

December 9, 1999). In making its 

changes to the refusal provisions, DOT 

examined the FAA’s experience with 

airman refusal cases and decided that 

regulatory changes were needed to 

address the increasing number of 

refusals and the inherent threat those 

refusals posed to transportation safety. 

On August 9, 2001, DOT further 

revised its refusal provisions (66 FR 

41944). In these final rules, DOT 

broadened the scope of what constitutes 

a refusal to test under the DOT agency 

regulations. We are proposing to revise 

several sections in our regulations that 

have been affected by the DOT 

revisions. 

Section-by-Section Discussion of the 

Proposal

14 CFR 61.14, 63.12b, and 65.23 

The FAA proposes to revise the 

airman certification requirements in 14 

CFR 61.14, 63.12b, and 65.23 to include 

refusals to take a pre-employment or 

return to duty test. Currently these 

sections only address refusals 

committed by an individual actually 

performing a safety-sensitive function 

for an employer regulated under 14 CFR 

part 121, appendices I and J. An 

individual who takes a pre-employment 

or return to duty test is not actually 

performing a safety-sensitive function. 

The scope of refusals in 49 CFR part 40 

clearly includes FAA-required return to 

duty and some pre-employment tests. 

The FAA airman certificate regulations 

should similarly be clarified to include 

pre-employment and return to duty tests 

that involve situations in which an 

airman intends to enter into a position 

to perform a safety-sensitive function. 

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

67.307(b)(2) 

The FAA is proposing to add 

medically disqualifying factors to the 

substance abuse provisions for the three 

classes of airman medical certificates. 

Currently, to obtain a medical 

certificate, a person must not have 

engaged in any substance abuse during 

the preceding 2 years. Under 14 CFR 

67.107(b), 67.207(b), and 67.307(b), the 

term ‘‘substance abuse’’ is defined as 

any of the following three criteria: 

(1) Use of a substance, for the second 

time, in a situation in which that use 

was physically hazardous; 

(2) A verified positive drug test result 

on a test required by an internal 

program of DOT or a test required by 

any DOT agency; or 

(3) Misuse of a substance that in the 

Federal Air Surgeon’s judgment makes 

or may make a person unable to safely 

exercise the privileges of the airmen 

certificate held. 

In the interest of aviation safety, we 

propose to add the following 

disqualifying factors to the definition of 

substance abuse in the regulation: 

(1) An alcohol test result of 0.04 or 

greater breath alcohol concentration 

(BAC) on an alcohol test required by 

DOT or a DOT agency; and 

(2) A refusal to submit to an alcohol 

or drug test required by DOT or a DOT 

agency. 

A discussion of these proposals 

follows. 

Alcohol Test Results of 0.04 or Greater 

BAC 

The FAA has reviewed its medical 

qualification regulations because we 

continue to be concerned about the 

number of commercial pilots misusing 

alcohol, resulting in their potential 

impairment during the performance of 

commercial flight duties. Between 1998 

through 2003, seventy-one commercial 

airline pilots were identified by DOT 

alcohol testing programs as having a 

BAC of 0.04 or greater. The misuse of 

alcohol affects the performance of a 

commercial pilot’s duties, reflects an 

inability to control his or her use of 

alcohol, and is a direct threat to aviation 

safety. Consequently, the FAA proposes 

to revise 14 CFR part 67 to more 

comprehensively define substance 

abuse to medically disqualify any pilot 

who has received a confirmed alcohol 

test result of 0.04 or greater BAC on a 

test required by DOT or a DOT agency. 

The only individuals required to 

submit to an alcohol test are those who 

perform safety-related duties for the 

DOT or for an industry regulated by the 

DOT. In the aviation context, 

individuals subject to testing who hold 

an airman medical certificate typically 

include pilots and flight crewmembers 

of commercial air carriers and 

operations conducted under 14 CFR 

135.1(c), and contract air traffic 

controllers. These individuals know 

they are subject to testing because of 

their work in a DOT-regulated industry 

and have a duty to operate safely. When 

these individuals misuse alcohol, 

resulting in a BAC of 0.04 or greater on 

a DOT test, they have shown a disregard 

for safety by their inability to control 

their use of alcohol. This behavior, in 

the opinion of the Federal Air Surgeon, 

constitutes substance abuse. 

This proposed revision is consistent 

with decisions issued by the National 

Transportation Safety Board (NTSB) 

holding that single events of alcohol 

misuse formed a legitimate basis for the 

Federal Air Surgeon’s finding of 

substance abuse. In these cases, the 

Federal Air Surgeon made a finding that 

each airman was ‘‘unable to safely 

perform the duties or exercise the 

privileges of the airman certificate’’

because of substance abuse under 14 

CFR 67.107(b)(3)(i), 67.207(b)(3)(i), and 

67.307(b)(3)(i). There have been at least 

two challenges to such findings. In both 

cases, the NTSB upheld the Federal Air 

Surgeon’s finding of substance abuse in 

74900 Federal Register / Vol. 69, No. 239 / Tuesday, December 14, 2004 / Proposed Rules 

instances of only one alcohol event. In 

Administrator v. Taylor, NTSB Order 

No. EA–5003 (2002), the NTSB upheld 

‘‘the Federal Air Surgeon’s 

interpretation that a single occurrence of 

substance abuse is sufficient under the 

regulation [to warrant revocation of his 

medical certificate].’’ In Administrator

v. Polinchock, NTSB Order No. EA–

5023 (2003), the NTSB upheld the 

revocation of an airman’s medical 

certificate on the basis of ‘‘the Federal 

Air Surgeon’s determination that 

respondent’s misuse of alcohol while on 

duty in a safety-sensitive position 

renders him unqualified.’’

Because a single event of alcohol 

misuse resulting in a BAC of 0.04 or 

greater on a DOT test would affect 

medical qualifications, any person who 

holds or applies for an airman medical 

certificate would be affected by the 

proposed rule change. Thus, persons 

subject to testing who hold an airman 

medical certificate for reasons unrelated 

to their safety-related job would also be 

affected by the proposed revisions. For 

example, a mechanic who also holds a 

pilot certificate would be affected by the 

proposed revisions. 

Refusals to Take DOT Tests 

In addition to pilots misusing alcohol, 

we have continued to see numbers of 

pilots who refuse to take FAA-required 

drug and alcohol tests. From 1997 

through 2003, the FAA received reports 

that 89 commercial airline pilots refused 

to take required FAA drug and alcohol 

tests. These refusals can include: walkaways from the testing site; refusals to 

report for testing; committing violence 

against the testing personnel; 

substituting other liquids for the testing 

specimens; and adding adulterating 

substances to hide or destroy the 

presence of illegal drugs in the person’s 

urine specimen. Whenever a person is 

required to submit to a DOT or a DOT 

agency drug or alcohol test and refuses 

to do so, that person willfully decides 

not to comply with a fundamental 

component of transportation safety. 

The FAA is proposing to further 

amend 14 CFR 67.107(b)(2), 

67.207(b)(2), and 67.307(b)(2) by adding 

to the description of ‘‘substance abuse’’

any refusal to submit to a drug or 

alcohol test required by DOT or a DOT 

agency. If adopted, this change would 

result in the revocation or denial of the 

airman medical certificate of any person 

who refused to submit to the required 

testing. 

Adding refusals to 14 CFR part 67 is 

consistent with the language and intent 

of 49 CFR part 40, the DOT’s drug and 

alcohol testing procedural regulations 

prescribed for use by all DOT-regulated 

industries required to conduct Federal 

testing. In 49 CFR part 40, the DOT and 

its agencies treat positive test results, 

alcohol violations, and refusals 

substantially the same. In the preamble 

to its final rule, DOT explained ‘‘the 

consequences of a refusal are the same 

or more severe as for any other violation 

of DOT agency drug and alcohol 

regulations.’’ (65 FR 79462, 79501, 

December 19, 2000). The FAA believes 

that it is appropriate to respond to a 

refusal to take a test required by DOT or 

a DOT agency as firmly and directly as 

a positive drug test result or an alcohol 

test result of 0.04 or greater BAC on a 

required test. 

The drug and alcohol testing 

regulations prescribed by DOT and 

incorporated into the regulations of the 

DOT agencies directly affect 

transportation safety because they 

prohibit the use of illegal drugs and 

misuse of alcohol by people who 

perform safety critical transportation 

functions. When regulated individuals 

refuse to take a test required by DOT or 

a DOT agency, they violate their duty to 

uphold transportation safety. 

Furthermore, their refusals are overt 

attempts to subvert the testing program. 

In applying the principles of 49 CFR 

part 40 to the 14 CFR part 67 airman 

medical qualification standards, the 

FAA is proposing that a refusal to take 

a drug or alcohol test should be an 

immediately disqualifying factor, 

resulting in the denial or revocation of 

the airman medical certificate. An 

airman who refuses to submit to testing 

interferes with the ability of the testing 

process to detect the presence of an 

illegal drug or alcohol misuse. Such 

interference with the testing process 

may be intended to conceal prohibited 

drug or alcohol use. This conduct 

typifies a substance abuse problem and 

justifies the removal of an airman 

medical certificate until the airman can 

prove that he or she is rehabilitated and 

medically qualified to hold an airman 

medical certificate. 

The FAA acknowledges the proposed 

changes may result in the revocation of 

the airman medical certificate of an 

individual who is performing duties 

unrelated to his or her pilot certificate 

at the time of the refusal to test. For 

example, a mechanic who is required to 

be tested under FAA regulations and 

also who holds a private pilot certificate 

would be affected by this rule change. 

We are proposing that the airman 

medical certificate be revoked because 

this individual poses an unacceptable 

risk to transportation safety through his 

or her refusal to submit to testing 

required by his or her safety-related 

work. 

14 CFR 91.17(a) and (c) 

The FAA proposes to amend 14 CFR 

91.17 to recognize current breath 

alcohol testing technology. Currently, 14 

CFR 91.17 only refers to blood alcohol 

testing. However, breath alcohol testing 

has become the more commonly 

administered method for determining 

alcohol concentration. 

When 14 CFR 91.17 was originally 

written, the prevalent technology for 

testing alcohol concentration was blood 

alcohol testing. In 1994, the DOT 

agencies issued regulations that 

required alcohol testing by breath for 

the transportation industries, including 

aviation. As breath-testing technology 

has improved and become more costefficient, law enforcement personnel 

have used this less invasive form of 

testing with increasing frequency. 

Breath alcohol tests and blood alcohol 

tests are two separate measures and are 

not exact equivalents. Therefore, each is 

reported separately as either breath 

alcohol concentration or blood alcohol 

concentration. 

We are proposing to amend section 

91.17 to include breath alcohol 

concentration testing results of 0.04 or 

greater because of the greater use of 

breath testing technology by local law 

enforcement and because, since 1994, 

the DOT has set the violation level for 

breath alcohol concentrations at 0.04 or 

greater.

Therefore, the FAA proposes to 

amend 14 CFR 91.17 to include both 

blood alcohol testing and breath alcohol 

testing to determine the concentration of 

alcohol in an individual’s blood or 

breath, respectively. 

14 CFR Part 121, Appendix I, Section II 

and Appendix J, Section I.D 

The FAA proposes to amend ‘‘refusal 

to submit’’ to a drug test to include 

engaging in conduct provided in 49 CFR 

40.191. Similarly, we propose to amend 

‘‘refusal to submit’’ to an alcohol test to 

include engaging in conduct provided 

in 49 CFR 40.261. We propose to change 

the specific wording in the FAA drug 

and alcohol testing definitions of 

‘‘refusal to submit’’ from ‘‘conduct 

specified’’ to ‘‘conduct provided.’’

The FAA’s drug and alcohol 

regulations cross-reference 49 CFR 

40.191 and 40.261 because these 

sections provide descriptions of kinds of 

conduct that constitute a ‘‘refusal.’’

However, there is no one definition of 

what commission or omission 

constitutes a refusal. A refusal involves 

conduct by the employee that interferes 

with testing. For example, a refusal 

includes failure to appear at the testing 

site for a test other than preVerDate jul<14>2003 21:43 Dec 13, 2004 Jkt 205001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:\FR\FM\14DEP3.SGM 14DEP3
Federal Register / Vol. 69, No. 239 / Tuesday, December 14, 2004 / Proposed Rules 74901

employment, failure to remain at the 

testing site, adulterating one’s urine 

sample, substituting a specimen, 

behaving violently or uncooperatively 

during the collection process, not 

remaining available for a post-accident 

test, or failing to comply with steps 

required during the administration of 

the test. This is not an all-inclusive list 

of conduct that would constitute a 

finding of refusal. We invite public 

comment as to whether ‘‘conduct 

provided’’ more effectively addresses 

the expansiveness of conduct that 

would constitute a refusal under 49 CFR 

part 40. 

We propose to clarify the refusal 

definition to include post-accident 

alcohol testing because the employee 

has a duty under 14 CFR part 121, 

appendix J, Section III.B.3 ‘‘to remain 

readily available for such testing.’’

Failure to remain readily available for 

post-accident testing, even in the 

absence of individualized notice, 

constitutes a refusal. We also propose to 

drop the word ‘‘covered’’ from the 

definition of ‘‘Refusal to submit’’ in 14 

CFR part 121, appendix J, section I.D., 

as a non-substantive editorial change. 

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

Appendix J, Section V.D.2 

In 49 CFR 40.191 and 40.261, DOT 

clarified the scope of what constitutes a 

‘‘refusal’’ to include return to duty 

testing and specific situations in preemployment testing. In response, we 

propose to require employers to notify 

the FAA of refusals to take a return to 

duty or pre-employment drug or alcohol 

test. Specifically, we propose to remove 

14 CFR part 121, appendix I, section 

VI.D.2 and appendix J, section V.D.2 

because both sections tell employers not 

to inform the FAA when return to duty 

or pre-employment refusals occurred. 

14 CFR Part 121, Appendix I, Sections 

VII.C.1, 2, 3, 4, and 6 

The FAA proposes to amend 14 CFR 

part 121, appendix I, section VII.C.1. to 

change the time frame for the Medical 

Review Officer (MRO) to submit 

information to the Federal Air Surgeon 

regarding part 67 certificate holders. 

Specifically, we would change the 

reporting requirement from 12 working 

days from the date the MRO verifies the 

positive drug test result to 2 working 

days to be consistent with the alcohol 

reporting requirement. We are also 

proposing some editorial changes for 

consistency and clarity. 

The FAA is proposing to amend 14 

CFR part 121, appendix I, section 

VII.C.2 to clarify that a substance abuse 

professional (SAP) must not recommend 

that an employer return to duty an 

individual who has refused to take a 

drug test for a position that requires an 

airman medical certificate. Only after 

the Federal Air Surgeon has issued the 

individual a new airman medical 

certificate can the SAP recommend to 

the employer that the individual be 

returned to duty. This requirement 

already exists for the airman medical 

certificate holder who has a positive 

drug test result. 

In 14 CFR part 121, appendix I, 

section VII.C.3, for consistency with 

appendix J, we propose to change the 

time for the employer to forward SAP 

reports to the Federal Air Surgeon from 

12 working days to 2 working days of 

receipt of the SAP report. 

Section VII.C.4 of 14 CFR part 121, 

appendix I requires employers to ensure 

that an employee required to hold a part 

67 certificate is not returned to the 

performance of a safety-sensitive duty 

until the employee has received an 

airman medical certificate. Because the 

airman may have retained a previously 

issued medical certificate, we propose 

to clarify that the operative medical 

certificate must be issued after the date 

of the verified positive drug test result 

or refusal to test before the employee 

can be returned to the performance of a 

safety sensitive duty. 

We propose to add 14 CFR part 121, 

appendix I section VII.C.6 to require 

MROs, SAPs, and employers to retain a 

copy of any report they forward to the 

Federal Air Surgeon under this section. 

This record retention requirement 

already exists in 14 CFR part 121, 

appendix J, section IV.A.2.(a)(2). 

14 CFR Part 121, Appendix J, Section 

IV.A.2.(a)(2) 

We propose to add ‘‘refusals to submit 

to testing’’ to the existing record 

retention requirements. 

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

135.253(f) 

In a final rule, issued on December 19, 

2000, (65 FR 79462), DOT broadened 

the scope of what is considered to be a 

refusal to test. In 49 CFR 40.191 and 

40.261, the DOT included preemployment tests and return-to-duty 

tests under the new refusal provisions. 

The DOT also clarified the description 

of refusal to test by explicitly including 

adulterations and substitutions of 

specimens within the refusal provisions. 

On August 9, 2001, (66 FR 41944), DOT 

further revised the refusal provisions of 

49 CFR 40.191 and 40.261 to clarify the 

scope of pre-employment refusals. 

We propose to amend 14 CFR 

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

because these provisions currently 

describe a ‘‘refusal to submit to a 

required alcohol test’’ as including postaccident, random, reasonable suspicion, 

and follow-up tests. Because 49 CFR 

part 40 includes all types of required 

tests, we propose a minor change to 

these sections to be consistent. Instead 

of listing the types of tests included as 

refusals, we propose substituting the 

word ‘‘any’’ in place of the list of 

required tests. 

Paperwork Reduction Act 

The FAA described the information 

collection requirements associated with 

reporting the results of drug and alcohol 

testing in OMB control number 2120–

0535 (current expiration date is 

December 31, 2005). This NPRM would 

add the requirement to report refusals to 

take return-to-duty and pre-employment 

tests. This is an extremely small 

additional burden because these reports 

are already generated and sent to the 

employer under 49 CFR part 40 and 14 

CFR part 121, appendices I and J, and 

are accounted for in OMB control 

number 2125–0529. Under the new 

requirement, employers would merely 

send these already existing reports on to 

the FAA, resulting in a total annual 

burden of fewer than 2 hours across the 

industry. Specifically, we estimate the 

annual burden associated with this 

NPRM to be 1.75 hours to the private 

sector, costing $35.00. The annual 

burden to the Federal Government 

would be 7 hours, costing $138.95. 

Because this burden is extremely small, 

we will not change Paperwork Burden 

Submission OMB control number 2120–

0535 at this time, but we will include 

the extra 1.75 hours in the next renewal 

in 2005. 

International Compatibility 

In keeping with U.S. obligations 

under the Convention on International 

Civil Aviation, it is FAA policy to 

comply with International Civil 

Aviation Organization (ICAO) Standards 

and Recommended Practices (SARPs) to 

the maximum extent practicable. SARPs 

do not address disqualification of an 

airman based on a refusal to take a 

required drug or alcohol test. 

Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

Executive Order 12866, Regulatory 

Planning and Review, directs the FAA 

to assess both the costs and the benefits 

of a regulatory change. We are not 

allowed to propose or adopt a regulation 

unless we make a reasoned 

determination that the benefits of the 

intended regulation justify the costs. 

Our assessment of this rulemaking 

indicates that its economic impact is 

minimal. This action imposes minimal 

74902 Federal Register / Vol. 69, No. 239 / Tuesday, December 14, 2004 / Proposed Rules 

copying, mailing, and faxing costs on 

small entities subject to this rule. 

Because the costs and benefits of this 

action do not make it a ‘‘significant 

regulatory action’’ as defined in the 

Order, we have not prepared a 

‘‘regulatory evaluation,’’ which is the 

written cost/benefit analysis ordinarily 

required for all rulemaking under the 

DOT Regulatory Policies and 

Procedures. We do not need to do a full 

evaluation where the economic impact 

of a rule is minimal. 

Economic Assessment, Regulatory 

Flexibility Determination, International 

Trade Impact Assessment, and 

Unfunded Mandates Assessment

Proposed changes to Federal 

regulations must undergo several 

economic analyses. First, Executive 

Order 12866 directs each Federal agency 

proposing or adopting a regulation do so 

only upon a reasoned determination 

that the benefits of the intended 

regulation justify its cost. Second, the 

Regulatory Flexibility Act of 1980 

requires agencies to analyze the 

economic impact of regulatory changes 

on small entities. Third, the Trade 

Agreements Act (19 U.S.C. 2531–2533) 

prohibits agencies from setting 

standards that create unnecessary 

obstacles to the foreign commerce of the 

United States. In developing U.S. 

standards, this Trade Act requires 

agencies to consider international 

standards and, where appropriate, that 

they be the basis for U.S. standards. 

Fourth, the Unfunded Mandates Reform 

Act of 1995 (the Act) is intended, among 

other things, to curb the practice of 

imposing unfunded Federal mandates 

on State, local, and tribal governments. 

Title II of the Act requires each Federal 

Agency to prepare a written statement 

assessing the expenditure of $100 

million or more (adjusted annually for 

inflation ) in any one year by State, 

local, and tribal governments, in the 

aggregate, or by the private sector; such 

a mandate is deemed a ‘‘significant 

regulatory action.’’ The FAA currently 

uses an inflation-adjusted value of 

$120.7 million in lieu of $100 million. 

In conducting these analyses, FAA 

has determined this rule: (1) Has 

benefits that justify its costs, is not a 

‘‘significant regulatory action’’ as 

defined in section 3(f) of Executive 

Order 12866 and is not ‘‘significant’’ as 

defined in DOT’s Regulatory Policies 

and Procedures; (2) will not have a 

significant economic impact on a 

substantial number of small entities; (3) 

will not reduce barriers to international 

trade; and does not impose an unfunded 

mandate on state, local, or tribal 

governments, or on the private sector. 

However, for regulations with an 

expected minimal impact the abovespecified analyses are not required. The 

Department of Transportation Order 

DOT 2100.5 prescribes policies and 

procedures for simplification, analysis, 

and review of regulations. If it is 

determined that the expected impact is 

so minimal that the proposal does not 

warrant a full evaluation, a statement to 

that effect and the basis for it is 

included in proposed regulation. 

Regulatory Flexibility Determination 

The Regulatory Flexibility Act of 1980 

(RFA) directs the FAA to fit regulatory 

requirements to the scale of the 

business, organizations, and 

governmental jurisdictions subject to 

the regulation. We are required to 

determine whether a proposed or final 

action will have a ‘‘significant economic 

impact on a substantial number of small 

entities’’ as they are defined in the Act. 

If we find that the action will have a 

significant impact, we must do a 

‘‘regulatory flexibility analysis.’’

We certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

Trade Impact Assessment 

The Trade Agreement Act of 1979 

prohibits Federal Agencies from 

establishing any standards or engaging 

in related activities that create 

unnecessary obstacles to the foreign 

commerce of the United States. 

Legitimate domestic objectives, such as 

safety, are considered unnecessary 

obstacles. The statute also requires 

consideration of international standards 

and, where appropriate, that they be the 

basis for U.S. standards. In accordance 

with the above statute and policy, the 

FAA has assessed the potential effect of 

this NPRM rule to be minimal and 

therefore has determined that this 

proposed rule would not result in an 

impact on international trade by 

companies doing business in or with the 

United States. 

Unfunded Mandates Assessment 

The Unfunded Mandates Reform Act 

of 1995 (the Act) is intended, among 

other things to curb the practice of 

imposing unfunded Federal mandates 

on State, local, and tribal governments. 

Title II of the Act requires each Federal 

agency to prepare a written statement 

assessing the effects of any Federal 

mandate in a proposed or final agency 

rule that may result in an expenditure 

of $100 million or more (adjusted 

annually for inflation) in any one year 

by State, local, and tribal governments, 

in the aggregate, or by the private sector; 

such a mandate is deemed to be a 

‘‘significant regulatory action.’’ The 

FAA currently uses an inflationadjusted value of $120.7 million in lieu 

of $100 million. 

This NPRM does not contain such a 

mandate. The requirements of Title II of 

the Act do not apply. 

Executive Order 13132, Federalism 

The FAA has analyzed this proposed 

rule under the principles and criteria of 

Executive Order 13132, Federalism. We 

determined that this action would not 

have a substantial direct effect on the 

States, on the relationship between the 

national Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government, and therefore 

would not have federalism implications. 

Plain English 

Executive Order 12866 (58 FR 51735, 

Oct. 4, 1993) requires each agency to 

write regulations that are simple and 

easy to understand. We invite your 

comments on how to make these 

proposed regulations easier to 

understand, including answers to 

questions such as the following: 

• Are the requirements in the 

proposed regulations clearly stated? 

• Do the proposed regulations contain 

unnecessary technical language or 

jargon that interferes with their clarity? 

• Would the regulations be easier to 

understand if they were divided into 

more (but shorter) sections? 

• Is the description in the preamble 

helpful in understanding the proposed 

regulations? 

Please send your comments to the 

address specified in the ADDRESSES

section. 

Environmental Analysis 

FAA Order 1050.1D defines FAA 

actions that may be categorically 

excluded from preparation of a National 

Environmental Policy Act 

environmental impact statement. In 

accordance with FAA Order 1050.1D, 

appendix 4, paragraph 4(J) this NPRM 

qualifies for a categorical exclusion.

List of Subjects 

14 CFR Part 61 

Aircraft, Airmen, Alcohol abuse, 

Aviation safety, Drug abuse, Recreation 

and recreation areas, Reporting and 

recordkeeping requirements, Security 

measures, Teachers. 

14 CFR Part 63 

Aircraft, Airmen, Alcohol abuse, 

Aviation safety, Drug abuse, Navigation 

(air), Reporting and recordkeeping 

requirements, Security Measures. 

Federal Register / Vol. 69, No. 239 / Tuesday, December 14, 2004 / Proposed Rules 74903

14 CFR Part 65 

Air traffic controllers, Aircraft, 

Airmen, Airports, Alcohol abuse, 

Aviation safety, Drug abuse, Reporting 

and recordkeeping requirements, 

Security measures. 

14 CFR Part 67 

Airmen, Authority delegation 

(Government agencies), Health, 

Reporting and record keeping 

requirements. 

14 CFR Part 91 

Afghanistan, Agriculture, Air traffic 

control, Aircraft, Airmen, Airports, 

Aviation safety, Canada, Cuba, Ethiopia, 

Freight, Mexico, Noise control, Political 

candidates, Reporting and 

recordkeeping requirements, 

Yugoslavia. 

14 CFR Part 121 

Air carriers, Aircraft, Airmen, Alcohol 

abuse, Aviation safety, Charter flights, 

Drug abuse, Drug testing, Reporting and 

recordkeeping requirements, Safety, 

Transportation. 

14 CFR Part 135 

Air taxis, Aircraft, Airmen, Alcohol 

abuse, Aviation safety, Drug abuse, Drug 

testing, Reporting and recordkeeping 

requirements.

The Proposed Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 

proposes to amend parts 61, 63, 65, 67, 

91, 121, and 135 of Title 14, Code of 

Federal Regulations, as follows:

PART 61—GENERAL 

1. The authority citation for part 61 

continues to read as follows:

Authority: 49 U.S.C. 106(g), 40113, 44701–

44703, 44707, 44709–44711, 45102–45103, 

45301–45302.

2. Revise § 61.14(a) to read as follows:

§ 61.14 Refusal to submit to a drug or 

alcohol test. 

(a) This section applies to an 

individual who holds a certificate under 

this part and is subject to the types of 

testing required under appendix I to 

part 121 or appendix J to part 121 of this 

chapter.

* * * * *

PART 63—CERTIFICATION: FLIGHT 

CREWMEMBERS OTHER THAN 

PILOTS 

3. The authority citation for part 63 

continues to read as follows:

Authority: 49 U.S.C. 106(g), 40113, 44701–

44703, 44707, 44709–44711, 45102–45103, 

45301–45302.

4. Revise § 63.12b(a) to read as 

follows:

§ 63.12b Refusal to submit to a drug or 

alcohol test. 

(a) This section applies to an 

individual who holds a certificate under 

this part and is subject to the types of 

testing required under appendix I to 

part 121 or appendix J to part 121 of this 

chapter.

* * * * *

PART 65—CERTIFICATION: AIRMEN 

OTHER THAN FLIGHT 

CREWMEMBERS 

5. The authority citation for part 65 

continues to read as follows:

Authority: 49 U.S.C. 106(g), 40113, 44701–

44703, 44707, 44709–44711, 45102–45103, 

45301–45302.

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

§ 65.23 Refusal to submit to a drug or 

alcohol test. 

(a) General. This section applies to an 

individual who holds a certificate under 

this part and is subject to the types of 

testing required under appendix I to 

part 121 or appendix J to part 121 of this 

chapter.

* * * * *

7. Revise § 65.46a(f) to read as 

follows:

§ 65.46a Misuse of alcohol.

* * * * *

(f) Refusal to submit to a required 

alcohol test. A covered employee must 

not refuse to submit to any alcohol test 

required under appendix J to part 121 of 

this chapter. An employer must not 

permit an employee who refuses to 

submit to such a test to perform or 

continue to perform safety-sensitive 

functions.

PART 67—MEDICAL STANDARDS AND 

CERTIFICATION 

8. The authority citation for part 67 

continues to read as follows:

Authority: 49 U.S.C. 106(g), 40113, 44701–

44703, 44707, 44709–44711, 45102–45103, 

45301–45303.

9. Revise § 67.107(b)(2) to read as 

follows:

§ 67.107 Mental.

* * * * *

(b) * * * 

(2) A verified positive drug test result, 

an alcohol test result of 0.04 or greater 

alcohol concentration, or a refusal to 

submit to a drug or alcohol test required 

by the U.S. Department of 

Transportation or an agency of the U.S. 

Department of Transportation; or

* * * * *

10. Revise § 67.207(b)(2) to read as 

follows:

§ 67.207 Mental.

* * * * *

(b) * * * 

(2) A verified positive drug test result, 

an alcohol test result of 0.04 or greater 

alcohol concentration, or a refusal to 

submit to a drug or alcohol test required 

by the U.S. Department of 

Transportation or an agency of the U.S. 

Department of Transportation; or

* * * * *

11. Revise § 67.307(b)(2) to read as 

follows:

§ 67.307 Mental.

* * * * *

(b) * * * 

(2) A verified positive drug test result, 

an alcohol test result of 0.04 or greater 

alcohol concentration, or a refusal to 

submit to a drug or alcohol test required 

by the U.S. Department of 

Transportation or an agency of the U.S. 

Department of Transportation; or

* * * * *

PART 91—GENERAL OPERATING AND 

FLIGHT RULES 

12. The authority citation for part 91 

continues to read as follows:

Authority: 49 U.S.C. 106(g), 1155, 40103, 

40113, 40120, 44101, 44111, 44701, 44709, 

44711, 44712, 44715, 44716, 44717, 44722, 

46306, 46315, 46316, 46504, 46506–46507, 

47122, 47508, 47528–47531, articles 12 and 

29 of the Convention on International Civil 

Aviation (61 stat. 1180).

13. Revise § 91.17 paragraphs (a)(4), 

(c)(1) introductory text and (c)(2) to read 

as follows:

§ 91.17 Alcohol or drugs. 

(a) * * *

* * * * *

(4) While having an alcohol 

concentration of 0.04 or greater in a 

blood or breath specimen. Alcohol 

concentration means grams of alcohol 

per deciliter of blood or grams of 

alcohol per 210 liters of breath.

* * * * *

(c) * * * 

(1) On request of a law enforcement 

officer, submit to a test to indicate the 

alcohol concentration in the blood or 

breath, when—

* * * * *

(2) Whenever the Administrator has a 

reasonable basis to believe that a person 

may have violated paragraph (a)(1), 

(a)(2), or (a)(4) of this section, on request 

of the Administrator, that person must 

furnish to the Administrator the results, 

or authorize any clinic, hospital, or 

doctor, or other person to release to the 

74904 Federal Register / Vol. 69, No. 239 / Tuesday, December 14, 2004 / Proposed Rules 

Administrator, the results of each test 

taken within 4 hours after acting or 

attempting to act as a crewmember that 

indicates an alcohol concentration in 

the blood or breath specimen.

* * * * *

PART 121—OPERATING 

REQUIREMENTS: DOMESTIC, FLAG, 

AND SUPPLEMENTAL OPERATIONS 

14. The authority citation for part 121 

continues to read as follows:

Authority: 49 U.S.C. 106(g), 40113, 40119, 

41706, 44101, 44701–44703, 44705, 44709–

44711, 44713, 44716–44717, 44722, 44901, 

44903–44904, 44912, 45101–45105, 46105.

15. Revise § 121.458(f) to read as 

follows:

§ 121.458 Misuse of alcohol.

* * * * *

(f) Refusal to submit to a required 

alcohol test. A covered employee must 

not refuse to submit to any alcohol test 

required under appendix J to this part. 

A certificate holder must not permit an 

employee who refuses to submit to such 

a test to perform or continue to perform 

safety-sensitive functions. 

16. Amend section II of Appendix I to 

part 121 by revising the definition of 

‘‘refusal to submit’’ as follows:

Appendix I to Part 121—Drug Testing 

Program

* * * * *

II. Definitions.

* * * * *

Refusal to submit means that an employee 

engages in conduct provided in 49 CFR 

40.191.

* * * * *

17. Amend section VI of Appendix I 

to part 121 by revising paragraph D.1 as 

follows and removing and reserving 

paragraph D.2.

VI. Administrative and Other Matters

* * * * *

D. Refusal to Submit to Testing. 1. Each 

employer must notify the FAA within 2 

working days of any employee who holds a 

certificate issued under part 61, part 63, or 

part 65 of this chapter who has refused to 

submit to a drug test required under this 

appendix. Notification must be sent to: 

Federal Aviation Administration, Office of 

Aerospace Medicine, Drug Abatement 

Division (AAM–800), 800 Independence 

Avenue, SW., Washington, DC 20591.

* * * * *

18. Amend section VII of Appendix I 

by revising paragraphs C.1, C.2, C.3, C.4 

and adding paragraph C.6 to read as 

follows:

VII. Medical Review Officer/Substance Abuse 

Professional, and Employer Responsibilities

* * * * *

C. Additional Medical Review Officer, 

Substance Abuse Professional, and Employer 

Responsibilities Regarding 14 CFR part 67 

Airman Medical Certificate Holders.

1. As part of verifying a confirmed positive 

test result or refusal to submit to a test, the 

MRO must ask and the individual must 

answer whether he or she holds or would be 

required to hold an airman medical 

certificate issued under 14 CFR part 67 to 

perform a safety-sensitive function for the 

employer. If the individual answers in the 

affirmative to either question, in addition to 

notifying the employer in accordance with 49 

CFR part 40, the MRO must forward to the 

Federal Air Surgeon, at the address listed in 

paragraph 5, the name of the individual, 

along with identifying information and 

supporting documentation, within 2 working 

days after verifying a positive drug test result. 

2. During the SAP interview required for a 

positive test result or a refusal to submit to 

a test, the SAP must ask and the individual 

must answer whether he or she holds or 

would be required to hold an airman medical 

certificate issued under 14 CFR part 67 to 

perform a safety-sensitive function for the 

employer. If the individual answers in the 

affirmative, before the SAP can recommend 

to the employer that the individual be 

returned to a safety-sensitive position, the 

individual must be issued an airman medical 

certificate from the Federal Air Surgeon 

dated after the verified positive drug test 

result date or refusal to test date. The receipt 

of an airman medical certificate does not 

alter any obligations otherwise required by 

49 CFR part 40 or this appendix. 

3. An employer must forward to the 

Federal Air Surgeon within 2 working days 

of receipt, copies of all reports provided to 

the employer by a SAP regarding the 

following: 

(a) An individual who the MRO has 

reported to the Federal Air Surgeon under 

section VII.C.1 of this appendix; or 

(b) An individual who the employer has 

reported to the Federal Air Surgeon under 

section VI.D of this appendix. 

4. The employer must not permit an 

employee who is required to hold an airman 

medical certificate under 14 CFR part 67 to 

perform a safety-sensitive duty to resume that 

duty until the employee has: 

(a) Been issued an airman medical 

certificate from the Federal Air Surgeon after 

the date of the verified positive drug test 

result or refusal to test; and 

(b) Met the return to duty requirements in 

accordance with 49 CFR part 40.

* * * * *

6. MROs, SAPs, and employers who send 

reports to the Federal Air Surgeon must keep 

a copy of each report for 5 years.

* * * * *

19. Amend section I.D. of Appendix J 

to part 121 by revising the definition of 

‘‘refusal to submit’’ as follows:

Appendix J to Part 121—Alcohol Misuse 

Prevention Program 

I. General

* * * * *

D. Definitions. * * *

* * * * *

Refusal to submit means that an employee 

has engaged in conduct provided in 49 CFR 

40.261, or has failed to remain readily 

available for post-accident testing as required 

by this appendix.

* * * * *

20. Amend section IV of Appendix J 

to part 121 by revising paragraph 

A.2(a)(2) to read as follows:

IV. Handling of Test Results, Record 

Retention, and Confidentiality

* * * * *

2. Period of Retention.

(a) * * *

* * * * *

(2) Records of notifications to the Federal 

Air Surgeon of refusals to submit to testing 

and violations of the alcohol misuse 

prohibitions in this chapter by covered 

employees who hold medical certificates 

issued under part 67 of this chapter.

* * * * *

PART 135—OPERATING 

REQUIREMENTS: COMMUTER AND 

ON-DEMAND OPERATIONS AND 

RULES GOVERNING PERSONS ON 

BOARD SUCH AIRCRAFT 

21. The authority citation for part 135 

is amended to read as follows:

Authority: 49 U.S.C. 106(g), 41706, 40113, 

44701–44702, 44705, 44709, 44711–44713, 

44715–44717, 44722, 45101–45105.

22. Revise § 135.253(f) to read as 

follows:

§ 135.253 Misuse of alcohol.

* * * * *

(f) Refusal to submit to a required 

alcohol test. A covered employee must 

not refuse to submit to any alcohol test 

required under appendix J to part 121 of 

this chapter. An operator or certificate 

holder must not permit an employee 

who refuses to submit to such a test to 

perform or continue to perform safetysensitive functions.

Issued in Washington, DC, on December 2, 

2004. 

Jon L. Jordan, 

Federal Air Surgeon.

[FR Doc. 04–27216 Filed 12–13–04; 8:45 am] 

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