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[Federal Register Volume 79, Number 51 (Monday, March 17, 2014)]
[Proposed Rules]
[Pages 14621-14630]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-05653]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 120

[Docket No.: FAA-2012-1058; Notice No. 14-02]
RIN 2120-AK09

Drug and Alcohol Testing of Certain Maintenance Provider 
Employees Located Outside of the United States

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Advance notice of proposed rulemaking (ANPRM).

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SUMMARY: The FAA is considering amending its drug and alcohol testing 
regulations to require drug and alcohol testing of certain maintenance 
personnel outside the United States. Specifically, the FAA is 
considering requiring certain air carriers to ensure that all employees 
of certificated repair stations, and certain other maintenance 
organizations that are located outside the United States, who perform 
safety-sensitive maintenance functions on aircraft operated by that air 
carrier are subject to a drug and alcohol testing program that has been 
determined acceptable by the FAA Administrator and is consistent with 
the applicable laws of the country in which the repair station is 
located. Safety-sensitive maintenance functions include aircraft 
maintenance and preventive maintenance duties. This action is necessary 
to address a statutory mandate. The FAA has determined that it needs 
additional information to develop a proposed rule and assess its likely 
economic impact. This notice invites comments on a variety of issues 
related to proposing drug and alcohol testing requirements for the 
relevant employees of covered maintenance providers.

DATES: Send comments on or before May 16, 2014.

ADDRESSES: Send comments identified by docket number FAA-2012-1058 
using any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your 
comments electronically.
     Mail: Send comments to Docket Operations, M-30; U.S. 
Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room 
W12-140, West Building Ground Floor, Washington, DC 20590-0001.
     Hand Delivery or Courier: Take comments to Docket 
Operations in Room W12-140 of the West Building Ground Floor at 1200 
New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays.
     Fax: Fax comments to Docket Operations at (202) 493-2251.
    Privacy: In accordance with 5 USC 553(c), DOT solicits comments 
from the public to better inform its rulemaking process. DOT posts 
these comments, without edit, including any personal information the 
commenter provides, to www.regulations.gov, as described in the system 
of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy. http://DocketsInfo.dot.gov.
    Docket: Background documents or comments received may be read at 
http://www.regulations.gov at any time. Follow the online instructions 
for accessing the docket or go to the Docket Operations in Room W12-140 
of the West Building Ground Floor at 1200 New Jersey Avenue SE., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: For technical questions concerning 
this action, contact Rafael Ramos, Office of Aerospace Medicine, Drug 
Abatement Division, AAM-800, Federal Aviation Administration, 800 
Independence Avenue SW., Washington, DC 20591; telephone (202) 267-
8442; facsimile (202) 267-5200; email: drugabatement@faa.gov.
    For legal questions concerning this action, contact Neal O'Hara, 
Attorney, Regulations Division, AGC-240, Federal Aviation 
Administration, 800 Independence Avenue SW., Washington, DC 20591; 
telephone (202) 267-5348.
    For cost and benefit questions concerning this action, contact 
Nicole Nance, Office of Aviation Policy and Plans, APO-300, Federal 
Aviation Administration, 800 Independence Avenue SW., Washington, DC 
20591; telephone (202) 267-3311.

SUPPLEMENTARY INFORMATION: 

Comments Invited

    See the ``Additional Information'' section for information on how 
to comment on this ANPRM and how the FAA will handle comments received. 
The ``Additional Information'' section also contains related 
information about the docket, privacy, and the handling of proprietary 
or confidential business information. In addition, there is information 
on obtaining copies of related rulemaking documents.

Authority for This Rulemaking

    The FAA's authority to issue rules on aviation safety is found in 
title 49 of the United States Code (U.S.C.). 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. In carrying out part A (Air Commerce and Safety) of subtitle 
VII, the Administrator is directed to act consistently with obligations 
of the United States Government under an international agreement and to 
consider applicable laws and requirements of a foreign country. See 49 
U.S.C. 40105(b)(1)-(2). Additionally, section 308(d)(2) of the FAA 
Modernization and Reform Act of 2012 (the Act), 49 U.S.C. 44733 
requires that:

    Not later than 1 year after the date of enactment of this 
section, the [FAA] Administrator shall promulgate a proposed rule 
requiring that all part 145 repair station employees responsible for 
safety-sensitive maintenance functions on part 121 air carrier 
aircraft are subject to an alcohol and controlled substances testing 
program determined acceptable by the Administrator and consistent 
with the applicable laws of the country in which the repair station 
is located.\1\
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    \1\ Except when quoting the text of section 308 of the Act, the 
FAA uses the term ``drug'' rather than ``controlled substance'' in 
this ANPRM, because an illegal substance in the United States may be 
legal to use in the country in which a covered maintenance provider 
is located.

In 49 U.S.C. 44733(d)(2) Congress did not address employees of 
maintenance providers located outside the United States that are not 
certificated by the FAA. However, authorized persons performing safety-
sensitive maintenance functions on aircraft operated by part 121 air 
carriers in accordance with 14 CFR 43.17 are substantially similar to 
those employees of part 145 repair stations located outside the United 
States for whom the FAA has been directed to propose drug and alcohol 
testing. Because of their substantial similarity, under the authority 
of 49 U.S.C. 44701(a)(5), which requires the Administrator to promote 
the safe flight of civil aircraft in air commerce by prescribing 
regulations and minimum standards for practices, methods, and 
procedures that the Administrator finds necessary for safety in air 
commerce and national security, we request comment on the application 
of these requirements to this group/category of authorized persons.

[[Page 14622]]

I. Overview of Advance Notice of Proposed Rulemaking (ANPRM)

    The Act requires the FAA to propose alcohol and drug testing 
requirements for employees of part 145 repair stations located outside 
the United States who perform safety-sensitive maintenance functions on 
aircraft operated by part 121 air carriers, as the FAA currently does 
not require drug or alcohol testing for such personnel. Currently, as 
required under 14 CFR part 120, employees performing aircraft 
maintenance and preventive maintenance duties on part 121, 135 or 
91.147 certificated air craft within the U.S. are required to be 
subject to drug and alcohol testing. The FAA believes Congress intended 
that preventive maintenance is a safety-sensitive maintenance function 
as currently described under 14 CFR part 120, therefore safety-
sensitive maintenance functions include both aircraft maintenance and 
preventive maintenance duties.\2\
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    \2\ Alcohol and drug testing of employees of part 145 repair 
stations located in the United States who perform safety-sensitive 
maintenance functions on aircraft operated by part 121 air carriers 
is already required under 14 CFR part 120. The FAA does not 
anticipate making any changes as part of this rulemaking to its drug 
and alcohol testing requirements that apply to safety-sensitive 
personnel within the United States.
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    While Congress did not address maintenance providers that are not 
certificated by the FAA in 49 U.S.C. 44733(d)(2), authorized persons 
performing safety-sensitive maintenance functions on aircraft operated 
by part 121 air carriers in accordance with 14 CFR 43.17, are 
substantially similar to the employees of part 145 repair stations in 
other countries for whom the FAA must propose drug and alcohol testing. 
Therefore, the FAA is also considering whether to require each part 121 
air carrier to ensure that authorized persons performing safety-
sensitive maintenance functions on aircraft operated by that part 121 
air carrier in accordance with 14 CFR 43.17, and is not also a 
certificated part 145 repair station, are subject to drug and alcohol 
testing programs that meet the same or similar requirements as programs 
for their counterparts at part 145 repair stations located outside the 
United States.
    Currently, there are approximately 120 part 145 repair stations 
located outside the United States whose employees perform safety-
sensitive maintenance functions on aircraft operated by part 121 air 
carriers. There are also organizations in one other country outside the 
United States that are not part 145 repair stations, but whose 
employees perform safety-sensitive maintenance functions on aircraft 
operated by part 121 air carriers in accordance with 14 CFR 43.17.

II. Background

A. Statement of the Issue

    The FAA's drug and alcohol testing regulations, contained in 14 CFR 
part 120, do not extend to companies or individuals who perform safety-
sensitive functions, including, but not limited to, aircraft 
maintenance and preventive maintenance, outside of the United States. 
They currently apply to all air carriers and operators authorized to 
conduct operations under part 121 or part 135; all air traffic control 
facilities not operated by the FAA or by or under contract to the U.S. 
military; all air tour operators as defined in 14 CFR 91.147; and all 
part 145 certificate holders and contractors who employ individuals who 
perform, either directly or by contract, including subcontract at any 
tier, any of the following safety-sensitive functions: Flight 
crewmember duties, flight attendant duties, flight instruction duties, 
aircraft dispatcher duties, aircraft maintenance and preventive 
maintenance duties, ground security coordinator duties, aviation 
screening duties, air traffic control duties. Additionally, the 
regulations do not permit any part of the testing process, including 
specimen collection, to be conducted outside the United States. As 
described above, the Act requires that the FAA propose extending drug 
and alcohol testing to employees of part 145 repair stations located 
outside the United States who perform safety-sensitive maintenance 
functions on part 121 air carrier aircraft in a manner consistent with 
local laws.

B. International Civil Aviation Organization (ICAO) Standards and 
Recommended Practices

    International Civil Aviation Organization (ICAO) standards do not 
presently require ICAO Member States to establish (or direct industry 
to establish) testing programs to deter or detect inappropriate drug 
and alcohol use by aviation personnel with safety-sensitive 
responsibilities. However, a number of ICAO standards and recommended 
practices address misuse of drugs and alcohol by aviation personnel and 
recognize the potential hazard that such misuse may pose to aviation 
safety. For example, the recommended practice in paragraph 1.2.7.3 of 
Annex 1 (Personnel Licensing) to the Convention on International Civil 
Aviation (the ``Chicago Convention''), states that ICAO Member States 
``. . . should ensure, as far as practicable, that all licen[s]e 
holders who engage in any kind of problematic use of substances are 
identified and removed from their safety-critical functions.'' ICAO 
further recommends that ``[r]eturn to the safety-critical functions may 
be considered after successful treatment or, in cases where no 
treatment is necessary, after cessation of the problematic use of 
substances and upon determination that the person's continued 
performance of the function is unlikely to jeopardize safety.'' In 
addition, the standard in paragraph 2.5 of Annex 2 (Rules of the Air) 
to the Chicago Convention states that ``[n]o person whose function is 
critical to the safety of aviation (safety-sensitive personnel) shall 
undertake that function while under the influence of any psychoactive 
substance, by reason of which human performance is impaired. No such 
person shall engage in any kind of problematic use of substances.'' See 
also paragraphs 1.2.6, 1.2.7, 6.3.2.2, 6.4.2.2, and 6.5.2.2 of Annex 1 
to the Chicago Convention.

C. History

    The FAA's original drug testing rule, published in 1988 (53 FR 
47024), required drug testing of certain aviation personnel, including 
some that performed safety-sensitive functions outside the United 
States. However, the effective date of the rule with respect to testing 
outside the territory of the United States was deferred on a number of 
occasions to permit related negotiations with governments and 
international organizations to continue in an orderly and effective 
fashion. In 1994, the FAA published two final rules related to drug and 
alcohol testing. Alcohol Misuse Prevention Program for Personnel 
Engaged in Specified Aviation Activities (59 FR 7380) established the 
FAA's alcohol testing requirements. The alcohol testing rule was not 
extended to employees located outside the territory of the United 
States due to significant logistical issues and possible conflicts with 
local laws. Anti-Drug Program for Personnel Engaged in Specified 
Aviation Activities (59 FR 42922) amended certain provisions of the 
existing FAA drug testing rules to comply with the requirements of the 
Omnibus Transportation Employee Testing Act of 1991. The drug testing 
requirements were not extended to employees located outside of United 
States territory due to significant practical and legal concerns. 
Rather, the rule specifically stated that no employee located outside 
of the United States would be tested for drugs. Additionally, in 1994, 
the FAA published a Notice of Proposed Rulemaking (NPRM), Antidrug 
Program and Alcohol Misuse

[[Page 14623]]

Prevention Program for Employees of Foreign Air Carriers Engaged in 
Specified Aviation Activities, to address requirements in the Omnibus 
Transportation Employee Testing Act of 1991. This NPRM required foreign 
air carriers operating into the U.S. to implement testing programs like 
those required of U.S. air carriers unless ``multilateral action was 
taken to support an international aviation environment free of 
substance abuse''. However, in 2000, the FAA withdrew the NPRM stating, 
``For the foregoing reasons, the FAA is withdrawing the rulemaking 
proposed on February 15, 1994, and is leaving within the purview of 
each government the method chosen to respond to the ICAO initiatives. 
We will continue to view a multilateral response as the best approach 
to evolving issues in the substance abuse arena. Should the FAA 
subsequently determine, however, that the scope of the threat of 
substance abuse is not being adequately addressed by the international 
community, the FAA will take appropriate action, including the possible 
re-initiation of this rulemaking.''

D. Related Actions

    Under 49 U.S.C. 44733(d)(1), Congress mandated that the Secretary 
of State and the Secretary of Transportation, acting jointly, request 
the governments of countries that are members of ICAO to establish 
international standards for alcohol and drug testing of persons that 
perform safety-sensitive maintenance functions on commercial air 
carrier aircraft. The FAA strongly supports the development of such 
international standards and believes that they would help deter and 
detect drug and alcohol use that could compromise aviation safety.

III. Discussion of Proposals Under Consideration

    Although ICAO standards and many countries' aviation regulations 
prohibit the use of drugs and alcohol by certain aviation personnel in 
circumstances in which such use may threaten aviation safety, many 
countries either do not require testing of such personnel to verify 
compliance or do not extend such testing to maintenance personnel. 
Congress, however, has now enacted legislation that requires the FAA to 
propose a rule requiring that all Part 145 repair station employees 
responsible for safety-sensitive maintenance functions on part 121 air 
carrier aircraft, not just those in the United States, be subject to a 
drug and alcohol testing program that is acceptable to the 
Administrator and consistent with the applicable laws of the country in 
which the repair station is located.
    The FAA is aware, however, that establishing drug and alcohol 
testing requirements for such personnel presents complex practical and 
legal issues and could impose potentially significant costs on 
industry. Therefore, the FAA is issuing this ANPRM, rather than an 
NPRM, to seek comments from the public, as well as interested 
governments, to help inform the development of a proposed rule and the 
analysis of its economic impact.
    The FAA expects to propose to allow the testing process to take 
place outside the United States.\3\ Any part of the testing process 
conducted outside the United States would need to be both acceptable to 
the Administrator and permitted under the applicable laws and 
regulations of the relevant foreign country or countries. The FAA 
believes that it would be less expensive and logistically simpler to 
conduct testing for the relevant employees of covered maintenance 
providers in the country where the covered maintenance provider is 
located or possibly in a nearby country.
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    \3\ For example, suitable laboratory facilities for analyzing 
specimens would need to be available.
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    The FAA understands that other countries may have a wide variety of 
laws and regulations concerning the use of and testing for alcohol and 
drugs. The FAA further understands that other countries' laws and 
regulations concerning other matters, such as personal privacy and 
employment, may affect whether and under what circumstances drug and 
alcohol testing may be conducted in those countries. Some countries 
might need to pass authorizing legislation before they could permit 
testing within their borders. The FAA also recognizes the diversity of 
policy, moral, and religious views that exist internationally regarding 
drug and alcohol use and testing.
    The FAA seeks input from the public and interested governments to 
help inform the development of a proposed rule and the analysis of its 
economic impact. In responding to the requests for comment below, the 
FAA asks that commenters distinguish between responses relating to 
alcohol testing and those relating to drug testing, if the same comment 
does not apply to both.

A. Foreign Countries Laws and Regulations

    To help the FAA expand its understanding of the laws and 
regulations of other countries that bear on drug and alcohol testing, 
the FAA requests the information described below regarding countries in 
which covered maintenance providers are located. It would be 
particularly helpful to receive the requested information regarding the 
countries' laws and regulations from the responsible government 
authorities of the relevant country, although private parties are also 
encouraged to provide information.
    A 1. Is drug and alcohol testing of any aviation personnel required 
in that country, and, if so, for what categories of aviation personnel 
(e.g., pilots, flight attendants, maintenance personnel, flight 
dispatchers, others (please specify))?
    A 2. Please provide an explanation of laws and regulations on other 
subjects, such as personal privacy or employment, which may affect the 
permissibility of drug and alcohol testing in the country, the 
circumstances under which such testing may be conducted, or the manner 
in which it may be conducted. Please include information on which 
categories of aviation personnel are subject to these requirements 
(e.g., pilots, flight attendants, maintenance personnel, flight 
dispatchers, others (please specify)). English language copies of the 
applicable laws and regulations would be greatly appreciated.
    A 3. What types of testing are (a) permitted and (b) required under 
the laws and regulations of the country? Please address the following 
testing by type:
    a. Pre-employment testing;
    b. Random testing during employment;
    c. Periodic testing during employment;
    d. Testing based on a reasonable cause/suspicion that an employee 
is under the influence of alcohol or drugs while performing a safety-
sensitive function or within a certain period of time before or after 
performing such a function;
    e. Post-accident testing;
    f. Return-to-duty and follow-up testing of individuals who have 
previously tested positive for alcohol or drugs;
    g. Any other drug or alcohol testing (please specify)?
    A 4. Should an FAA regulation include a provision to allow 
regulated parties to apply for a waiver \4\ if any provision conflicts 
with a foreign law or regulation? Please state the rationale for

[[Page 14624]]

why such a waiver provision should or should not be included.
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    \4\ Based on the waiver provision in the Office of the Secretary 
of Transportation's non-discrimination on the basis of disability in 
air travel regulations described in 14 CFR Sec.  382.9.
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B. Program Elements of Acceptable Drug and Alcohol Testing

    The FAA is considering addressing the program elements listed below 
in establishing the criteria for determining whether a drug and alcohol 
testing program is acceptable to the Administrator. Questions 
associated with each program element are listed below.
    1. A defined set of circumstances under which testing is conducted 
for alcohol and the most pervasive drugs of abuse in the relevant 
country. Under the FAA's current domestic drug and alcohol testing 
regulations for persons performing flight crewmember duties, flight 
attendant duties, flight instruction duties, aircraft dispatcher 
duties, aircraft maintenance and preventive maintenance duties, ground 
security coordinator duties, aviation screening duties, air traffic 
control duties testing is required in the following circumstances:
     Pre-employment (for drugs only);
     Randomly during employment;
     After an accident;
     If there is reasonable cause/suspicion to believe that an 
individual is under the influence of alcohol or drugs while performing 
safety-sensitive functions or within a certain period of time before or 
after performing such functions;
     Return-to-duty testing and follow-up testing before and 
after returning an employee to duty who previously tested positive for 
alcohol or drugs or refused to submit to testing.
    B1. For a program to be found acceptable to the Administrator, 
should the FAA require that testing be conducted under all of the above 
circumstances for which it is required in the U.S.? If not, under what 
circumstances should testing be required?
    2. Types of substances tested. 49 U.S.C. 44733(d)(2) requires that 
the proposed rule include ``alcohol and controlled substances 
testing''. The substances that are tested in the United States include 
alcohol, marijuana, cocaine, opiates, phencyclidine (PCP), and 
amphetamines. The FAA recognizes that the drugs of concern in other 
countries may vary depending upon conditions in those countries. 
Therefore, the FAA poses the following questions:
    B2a. Should an acceptable program require testing for, at a 
minimum, the drugs for which the FAA requires testing in the United 
States? If not, please provide information on which drugs should be 
tested for, at a minimum, to constitute an acceptable program.
    B2b. At what concentrations should a test for alcohol, drugs, or 
their metabolites be considered positive? Should an acceptable program 
identify set ceiling concentrations above which tests must be 
considered positive? If so, what should those levels be?
    3. A mechanism that is an effective deterrent to drug and alcohol 
misuse. The FAA views random testing as an effective deterrent because 
there is an element of surprise. Employees subject to random testing 
receive little notice before they must report for testing. Other 
countries or industry may have developed other effective methods of 
deterrence and some countries may prohibit or significantly restrict 
the use of random testing. The FAA poses the following questions with 
respect to this potential program element:
    B3a. Does the country allow or require random drug and/or alcohol 
testing? If so, please describe the process.
    B3b. If the country does not allow or require random drug and/or 
alcohol testing, are there laws to prohibit random testing?
    B3c. If random testing is not allowed in a given country, what 
other methods could be used to successfully deter employees from 
misusing drugs or alcohol while performing safety-sensitive duties or 
within a certain period of time before performing such duties? How 
would such misuse be detected?
    4. Procedures that ensure the integrity, identity, and proper 
analysis of the collected specimen to ensure accuracy of the test 
result. In the United States, the U.S. Department of Transportation has 
adopted a chain-of-custody process developed by the U.S. Department of 
Health and Human Services (HHS) to document the handling and storage of 
a specimen from the time it is collected until the time it is released 
to the testing facility. This process, coupled with the FAA's 
requirement that testing programs in the United States use a laboratory 
certified by HHS, helps ensure the accuracy of testing results. The FAA 
poses the following questions with respect to this potential program 
element:
    B4a. What testing methods, if any, in addition to those currently 
permitted under part 120, should be permitted in programs outside the 
United States?
    B4b. What standards should personnel and laboratories or other 
facilities in foreign countries be required to meet? Please address the 
following matters:
     Personnel qualifications;
     Measures to prevent adulteration, substitution, or 
mistaken identification of specimens;
     Measures to ensure drug and alcohol testing information is 
only released to authorized persons;
     Measures to determine whether there is a legitimate 
medical explanation for a positive test result;
     Other relevant considerations (please specify).
    B4c. HHS-certified laboratories are not available outside the 
United States; therefore, should a program be acceptable if it allows 
the use of other laboratories that have been certified by DOT, another 
regulatory authority, or international organization as meeting 
equivalent or more stringent international standards?
    5. A means of ensuring that an employee who returns to work [after 
violating the law] is no longer misusing alcohol or drugs. If an 
employee who violated the drug or alcohol regulations is permitted to 
return to work, it is important to have a means for ensuring that the 
employee is no longer misusing alcohol or drugs and a means of 
detecting such misuse if it recurs after the employee returns to 
safety-sensitive duties. The return-to-duty process in the United 
States is described in the Department of Transportation's regulations 
at 49 CFR part 40, subpart O. The FAA poses the following questions 
with respect to this potential program element:
    B5a. What are the minimum standards that employees who have 
violated drug and alcohol regulations should meet before they return to 
performing safety-sensitive maintenance functions?
    B5b. If follow-up testing is not permitted, what other methods 
would ensure that an employee who has previously tested positive for 
alcohol or drugs does not misuse them again after returning to safety-
sensitive duties?

C. Existing Drug and Alcohol Testing Programs in Other Countries

    The FAA recognizes that existing drug and alcohol testing programs 
in other countries may take various forms and must comply with the 
applicable laws and regulations of those countries. In some countries, 
drug and alcohol testing programs may be established by industry in 
accordance with regulations promulgated by a government agency, as is 
the case in the United States. In others, a government agency may 
administer a national drug and alcohol testing program. In yet others, 
industry participants may have voluntarily established drug and alcohol 
testing programs as a good business practice or for competitive 
advantage in the

[[Page 14625]]

marketplace without being required to do so. In addition to the 
information provided in part B above, the FAA requests the information 
described below about existing drug and alcohol testing programs in 
other countries, whether legally mandated or voluntarily established. 
The FAA is interested in both nationwide information for other 
countries and information pertaining to the testing programs of 
specific companies or the members of an association:
    C 1. Which drugs are most pervasively misused in the country? 
Please provide data to support this answer.
    C 2. Are testing programs in the country:
    a. Administered by a national regulatory authority;
    b. Required to be established by industry participants under that 
country's laws and regulations;
    c. Voluntarily established by industry participants;
    d. Other (please specify)?
    C 3. Please describe the process that is followed after an 
employee's drug test is confirmed positive or alcohol concentration is 
confirmed to be above the permitted limit, including at what point an 
individual would be removed from safety-sensitive duty.
    C 4. If the country allows drug or alcohol testing, what 
protections does the country's legal system provide for the employee?
    C 5. What are the potential consequences in that country, 
including, but not limited to, enforcement action by the relevant 
government authority, when an individual who performs safety-sensitive 
aviation duties tests positive for alcohol or drugs?

D. Miscellaneous

    D 1. Should the FAA include within the scope of a proposed rule all 
authorized persons performing safety-sensitive maintenance functions on 
aircraft operated by part 121 air carriers in accordance with 14 CFR 
43.17 ? Please include the rationale for why such personnel should or 
should not be subject to testing in any comment.

IV. Regulatory Notices and Analyses

A. Regulatory Evaluation

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order 12866 and Executive Order 13563 direct 
that each Federal agency shall propose or adopt a regulation only upon 
a reasoned determination that the benefits of the intended regulation 
justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. 
L. 96-354) requires agencies to analyze the economic impact of 
regulatory changes on small entities. Third, the Trade Agreements Act 
(Pub. L. 96-39) 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 
of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4) requires agencies to prepare a written assessment of 
the costs, benefits, and other effects of proposed or final rules that 
include a Federal mandate likely to result in the expenditure by State, 
local, or tribal governments, in the aggregate, or by the private 
sector, of $100 million or more annually (adjusted for inflation with 
base year of 1995). This portion of the preamble summarizes the FAA's 
questions about the economic impacts of a future proposed rule.
    Congress mandated that the FAA propose a rule requiring that all 
employees of part 145 repair stations who perform safety-sensitive 
maintenance functions on part 121 air carriers' aircraft be subject to 
an alcohol and drug testing program that has been determined acceptable 
by the Administrator and is consistent with the applicable laws of the 
country in which the repair station is located. This mandate requires 
the FAA to propose drug and alcohol testing for employees of part 145 
repair stations located outside the United States who perform safety-
sensitive maintenance functions on aircraft operated by part 121 air 
carriers. The FAA understands that the implementation of such a 
regulation would impose costs on industry, the FAA, and perhaps other 
parties.
    The FAA might also extend this testing requirement to include all 
authorized persons performing safety-sensitive maintenance functions on 
aircraft operated by part 121 air carriers in accordance with 14 CFR 
Sec.  43.17. It is very difficult, however, for the FAA to reliably 
estimate such costs at this time, given the limited information about 
other countries' relevant laws and regulations, existing drug and 
alcohol testing programs in other countries, the actual and potential 
costs associated with conducting drug and alcohol testing in other 
countries (which is expected to vary), the cost of establishing testing 
programs in countries where they do not currently exist, and other 
relevant information. To help gauge the economic impact of a proposed 
rule, the FAA is requesting information from industry, as well as from 
the government of countries as described below. For all cost questions 
in this ``Regulatory Notices and Analyses'' section, please note who 
bears or would bear the costs (e.g., the employee; the air carrier for 
whom work is performed; the covered maintenance provider, a regulatory 
authority, other (please specify)) in any response provided.
    In January 2006, the FAA issued a final rule entitled Antidrug and 
Alcohol Misuse Prevention Programs for Personnel Engaged in Specified 
Aviation Activities (71 FR 1666). That rule amended the FAA's 
regulations governing drug and alcohol testing in the United States 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. Consequently, the regulatory evaluation for that 
final rule (hereinafter referred to as the ``2005 Regulatory 
Evaluation''), which was published in Docket No.: FAA-2002-11301, 
addresses costs associated with drug and alcohol testing in the United 
States.
    The FAA is providing information from the 2005 Regulatory 
Evaluation to provide the public with an understanding of the types and 
level of detail of information needed to accurately estimate the 
economic impact of a rule for drug and alcohol testing of employees of 
covered maintenance providers who perform safety-sensitive maintenance 
functions on aircraft operated by part 121 air carriers. The FAA 
understands that the costs associated with drug and alcohol testing are 
likely to be different outside the United States and may vary from 
country to country. The FAA also understands that the specific details 
of drug and alcohol testing programs likely vary from country to 
country; however, the FAA expects that, for any drug and alcohol 
testing program, there will be costs associated with the testing 
process, training and education, developing and maintaining a testing 
program, and keeping (and possibly submitting) any documentation that 
may be required by national regulatory authorities or as part of a 
voluntary program's policies. The FAA requests that commenters also 
provide information about any other costs that may be relevant. The FAA 
is interested in data at the national level, from the members of 
associations, and from specific companies' programs. There were a 
number of basic assumptions that the FAA made in the 2005 Regulatory 
Evaluation. The FAA assumed the following:

[[Page 14626]]

     Maintenance providers affected by that rule would develop 
and implement their own programs, instead of being covered under 
another company's program or using a service agent with already-
established procedures.
     An additional 2.5% of maintenance workers would be subject 
to the antidrug and alcohol misuse prevention programs under that rule.
     The number of employees in the maintenance sector grows at 
1.5% per year.
     There would be two supervisors per contractor and that the 
attrition rate for mechanics was approximately 10% per year.
    The FAA requests comments on these assumptions.
    The FAA also assumed the following values:
     Price of a drug test--$45;
     Price of an alcohol test--$34;
     Time for a drug test (hours)--0.75;
     Time for an alcohol test (hours)--0.75;
     One instructor for every 20 supervisors and/or employees 
to be trained
     Maintenance employee salary--$33.07/hour;
     Maintenance supervisor salary--$39.68/hour;
     Instructor--$36.37/hour;
     Clerical--$18.62/hour;
    The FAA requests comments on these assumptions.
Testing Costs
    All employees who are subject to drug and alcohol testing under FAA 
regulations in the United States are subject to the following types of 
tests: pre-employment (for drugs only), random, post-accident, 
reasonable cause/suspicion, return-to-duty, and follow-up. The 2005 
Regulatory Evaluation considered the cost of testing to include the 
actual cost of the test, as well as the cost of the employee's time.
    Please answer the following questions.
    RE 1. For each year of the last 10 years, please provide the number 
of (a) drug and (b) alcohol tests conducted on aviation personnel who 
perform safety-sensitive functions and the number of positive tests, 
regardless of whether maintenance personnel are currently tested under 
the particular program described. If maintenance personnel are 
currently tested, please provide the number of (a) drug and (b) alcohol 
tests conducted on maintenance personnel that perform safety-sensitive 
functions and the number of positive tests for such personnel 
separately. For an example of the type of data that the FAA seeks, see 
the table below from the 2005 Regulatory Evaluation.
[GRAPHIC] [TIFF OMITTED] TP17MR14.004

    RE 2. What types of testing are required for (a) drugs and (b) 
alcohol (e.g., pre-employment, post-accident, reasonable cause/
suspicion, random, return-to-duty, follow-up, other (please specify))?
    RE 3. What types of personnel are subject to (a) drug and (b) 
alcohol testing in the relevant country, company, or among the members 
of the association (e.g., pilots, flight attendants, air traffic 
controllers, flight dispatchers, maintenance personnel, other (please 
specify))?
    RE 4. Is drug and alcohol testing currently conducted in the 
relevant country? If not, how would a requirement to drug and alcohol 
test be met (i.e. travel to a different country, implement a testing 
program within the relevant country, or other (please specify))? If 
traveling to another country, what is the distance from the relevant 
country? How much time will be spent traveling?
    RE 5. What is the cost of (a) the drug test and (b) the alcohol 
test per person? Do or would the costs differ for different categories 
of tests (i.e., pre-employment, post-accident, reasonable cause/
suspicion, random, periodic, return-to-duty, follow-up, or other 
(please specify))? How long does it take for an employee to complete 
each of these tests? If screening tests for (a) drugs or (b) alcohol 
are or would be conducted, followed by confirmatory testing when the 
screening test is positive, what are or would be the costs associated 
with conducting (a) the screening test and (b) the confirmatory test?
    RE 6. How many maintenance personnel in the relevant country or in 
a particular company or group of companies perform safety-sensitive 
maintenance functions? How many of them perform safety-sensitive 
maintenance functions on aircraft operated by part 121 air carriers 
(and are not directly employed by such air carriers)? How many are 
subject to drug and alcohol testing?
    RE 7. How many new employees are hired to perform safety-sensitive 
maintenance functions per year? How many maintenance employees who 
perform safety-sensitive functions leave per year? The FAA will need to 
be able to estimate testing costs in future years. See the table below 
for an example from the 2005 Regulatory Evaluation.

[[Page 14627]]

[GRAPHIC] [TIFF OMITTED] TP17MR14.005

    RE 7. What is or would be the annual cost per person of each 
category of staff required to conduct testing (collection personnel, 
laboratory personnel, other (please specify))?
Training and Education Costs
    In the United States, for each drug and alcohol testing program, 
the employer must train employees and supervisors on the effects and 
consequences of drug use on personal health, safety, and work 
environment, as well as the manifestations and behavioral cues that may 
indicate drug use and abuse. The regulations do not specify the amount 
of time associated with this training; in the 2005 Regulatory 
Evaluation, the FAA assumed 30 minutes.
    Under current regulations, supervisors who will make reasonable 
cause/suspicion determinations must receive at least 60 minutes for 
each program (for a total of 120 minutes). Supervisors must also 
receive recurrent training under the FAA's drug testing rules. The 
rules do not say when the recurrent training must occur or how long it 
must be; however, the FAA recommends recurrent training every 12 to 18 
months and that it include an element on alcohol testing. For the 2005 
Regulatory Evaluation, the FAA assumed that the recurrent training 
occurs every 12 months and takes 60 minutes.
    Please answer the following questions.
    RE 8. What are or would be the initial and recurrent training and 
education costs, on a per person basis? For:
    a. Employees subject to testing,
    b. Supervisors,
    c. Persons authorized to determine whether there is reasonable 
cause/suspicion to believe that an employee may be under the influence 
of alcohol or drugs while performing, or within a certain amount of 
time before or after performing, a safety-sensitive function and that 
the employee should be tested on that basis,
    d. Specimen collectors,
    e. Persons responsible for analyzing specimens for alcohol, drugs, 
or their metabolites,
    f. Persons involved in determining or recommending the appropriate 
course of treatment and/or education for an employee who has tested 
positive for drugs or alcohol,
    g. Other personnel involved in the drug or alcohol testing program 
(please specify)?
    RE 9. How many personnel in category (g) of question RE8 receive or 
would receive (1) initial and (2) recurrent training and/or education 
annually?
    RE 10. What was or would be the cost of developing any necessary 
training program initially, including materials, and what is or would 
be the annual cost, including materials, of maintaining it? What types 
of training materials are or would be required?
    RE 11. What are or would be the annual costs of the staff required 
to conduct training? How many staff would be required to conduct 
training?

[[Page 14628]]

    RE 12. How often is/must/would recurrent training be conducted?
Program Development and Maintenance Costs
    Under the rule for which the 2005 Regulatory Evaluation was 
conducted, it was assumed that each affected maintenance provider would 
have to devote resources to developing drug and alcohol testing 
programs. In addition, each affected maintenance provider would have to 
spend time to produce information required to either obtain an 
operations specification for its part 145 certificate or register its 
drug and alcohol program with the FAA. At the FAA, the submitted 
information would have to be processed and entered into the appropriate 
database.
    In calculating program development costs in the 2005 Regulatory 
Evaluation, the FAA assumed 16 hours for start-up program development. 
The FAA estimated that, for affected maintenance providers that chose 
to register with the FAA, it would take each one 20 minutes at $21 per 
hour to gather the required information and submit it to the FAA. At 
the FAA, the submitted information has to be processed. In the 2005 
Regulatory Evaluation, the FAA estimated that an administrative 
assistant, an FG-7 being paid at about $25.00 per hour, would enter 
this information into a database. The FAA assumed that administrative 
assistants would need 10 minutes to input the information.
    Please answer the following questions.
    RE 13. How much would it cost (besides training costs already 
addressed above or cost to do the actual testing) to develop a drug and 
alcohol testing program? What would be the annual program maintenance 
costs (besides training costs already addressed above)? What items are 
included in both of these types of costs?
    RE 14. Is the drug and alcohol testing program regulated by an 
agency of a government? If so, how much time per year is required to 
prepare and maintain required documentation and submit information to 
the responsible regulatory authority? What information items must be 
submitted? How long does it take for the company to gather this 
information? How long does it take for the responsible regulatory 
authority to process the submission? Who at the responsible regulatory 
authority processes these submissions?
    RE 15. How many submissions must be made per year?
    RE 16. What are or would be the costs of staff required to evaluate 
employees who have tested positive for drugs or alcohol and to provide 
any needed education and/or treatment? What would the cost of treatment 
be, in terms of employees time and opportunity cost? How many such 
staff would be needed? What are or would be the other costs associated 
with any program of treatment and/or education?
    RE 17. What are or would be the costs for a laboratory in the 
relevant country to obtain HHS, its equivalent, or more stringent 
certification, including both fees and the costs of any actions that 
would need to be taken to meet the applicable certification standards? 
Please specify the certification standards being used as a point of 
reference in any comments.
    RE 18. Is shipping specimens to an existing HHS-certified or DOT 
approved laboratory a reasonable alternative? What would be the costs 
associated with packaging and shipping specimens to one of the existing 
HHS-certified laboratories for testing?
Annual Documentation Costs
    The FAA's drug testing regulations require each company to document 
both the initial and recurrent training for supervisory personnel who 
make reasonable cause determinations. In the 2005 Regulatory 
Evaluation, the FAA assumed that the cost of this documentation is 
about $1.30 per record, which included record creation, filing, and 
storage. The same sort of documentation is needed for the supervisors 
who determine whether reasonable suspicion exists concerning probable 
alcohol misuse. The FAA assumed the cost of this documentation is also 
about $1.30 per record. The FAA's existing regulations require 
documentation of such things as:
     Training of employees in the requirements of the antidrug 
program;
     All reasonable cause/suspicion cases;
     If a post-accident alcohol test is not administered within 
2 hours following the accident, the reasons the test was not promptly 
administered;
     If a post-accident alcohol test is not administered within 
8 hours following the accident, the reasons the test was not promptly 
administered;
     Refusal to submit to a required drug or alcohol test (the 
company must also notify the FAA); and
     Medical Review Officer (MRO) reports of verified positive 
drug test results for employees holding airman medical certificates 
issued by the FAA under 14 CFR part 67. (Both the MRO and the company 
must also notify the FAA.)
    Please answer the following questions.
    RE 19. What are or would be the annual recordkeeping or other 
documentation costs associated with the drug and/or alcohol testing 
program?
    RE 20. Who maintains or would maintain any required documentation 
(e.g., employer, government agency, other (please specify))?
    RE 21. What documentation is or would be required to be maintained 
by and/or submitted to the responsible regulatory agency? How much time 
would be needed to prepare and/or submit the documentation?
    RE 22. What is the format for recordkeeping?
Accident Prevention Benefits
    The FAA indicated in the 2005 Regulatory Evaluation that it 
believed it was possible that illegal drug use or alcohol misuse by 
members of the aviation community may have contributed to additional 
accidents or incidents. The FAA acknowledged the fact that there had 
not been any aviation accidents directly attributed to a maintenance 
worker misusing or abusing drugs or alcohol.\5\ However, as the table 
below shows, maintenance employees had among the highest positive rates 
on alcohol and drug tests among aviation-related employees, so the 
connection between illegal drug use and alcohol misuse and maintenance-
related accidents certainly could exist. The FAA stated that it was 
important to note that not only are maintenance workers rarely tested 
after an accident (only 0.05% and 0.09% of maintenance workers are 
administered post-accident alcohol and drug tests, respectively), but 
it would be difficult to directly tie poor maintenance work, due to 
inappropriate drug use or alcohol misuse, to an accident that may occur 
weeks or months later, particularly with the widespread use of contract 
workers at many different tiers.
---------------------------------------------------------------------------

    \5\ That analysis was limited to maintenance workers because 
that was the population affected by that rulemaking.

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

[[Page 14629]]

[GRAPHIC] [TIFF OMITTED] TP17MR14.006

    The 2005 Regulatory Evaluation indicated that, while there had been 
no documented aviation accidents in the United States in the time 
period analyzed that were directly attributed to misuse or abuse of 
drugs or alcohol by maintenance personnel, the FAA believed it was 
possible that such misuse or abuse may have contributed to aviation-
related accidents. The FAA believed it was prudent to base the 
estimated benefits of the final rule on avoiding one part 135 accidents 
over the next 10 years, thus avoiding a total of 5 fatalities and a 
destroyed or damaged airplane. The FAA estimated the benefits of 
avoided fatalities at $15 million. This number of accidents, 
fatalities, and destroyed airplanes was less than 1% of all 
maintenance-related accidents that had occurred; the FAA considered 
these benefits to be reasonable. The total benefits in the 2005 
regulatory evaluation were calculated by assuming an equally likely 
chance of avoiding these accidents in each of the next 10 years. Total 
benefits summed to $15.07 million ($10.59 million, discounted).
    Please answer the following questions.
    RE 22. What benefits has the relevant country/company seen from 
drug and alcohol testing?
    RE 23. Are you aware of any accidents in which drug or alcohol 
misuse by safety-sensitive aviation personnel (e.g. pilots, flight 
attendants, maintenance personnel, air traffic controllers, flight 
dispatchers, other (please specify)) may have caused or contributed to 
the accident? Please describe the circumstances and identify the type 
of safety-sensitive personnel whose drug or alcohol misuse may have 
caused or contributed to the accident. Were there any fatalities, 
injuries, or damage to aircraft? If so, please describe. How many 
confirmed positive drug and alcohol tests occur annually in the 
country/company?
    RE 24. Have industry participants experienced a savings in 
insurance premiums as a result of drug and alcohol testing?

B. International Compatibility

    In keeping with the United States' obligations under the Chicago 
Convention, it is FAA policy to conform to ICAO Standards and 
Recommended Practices to the maximum extent practicable. The FAA has 
determined that there are no ICAO Standards and Recommended Practices 
that exactly correspond to the regulations being considered for 
proposal, as ICAO neither requires nor recommends that Member States 
implement testing of aviation personnel with safety-sensitive 
responsibilities for alcohol or drugs. As discussed in the Background 
section of this preamble, however, there are a number of ICAO standards 
and recommended practices that address the misuse of drugs and alcohol 
by such personnel and recognize the potential hazard that such 
substance misuse may pose to aviation safety.

C. 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 ANPRM qualifies for the categorical exclusion 
identified in paragraph 312d and involves no extraordinary 
circumstances.

V. Executive Order Determinations

A. Executive Order 12866, Regulatory Planning and Review, Executive 
Order 13563, Improving Regulation and Regulatory Review and DOT 
Regulatory Policies and Procedures

    The FAA is soliciting comments on the potential costs and benefits 
of the initiatives in the ANPRM. This ANPRM has been drafted and 
reviewed in accordance with Executive Order 12866 and Executive Order 
13563. This ANPRM has been reviewed by the Office of Management and 
Budget and is considered ``significant'' under the Department of 
Transportation's Regulatory Policies and Procedures.

B. Executive Order 13132, Federalism

    The FAA has analyzed this ANPRM under the principles and criteria 
of Executive Order 13132, Federalism. The agency has determined that 
this action would not have a substantial direct effect on the States, 
or the relationship between the Federal 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.

C. Executive Order 13211, Regulations That Significantly Affect Energy 
Supply, Distribution, or Use

    The FAA analyzed this ANPRM under Executive Order 13211, Actions 
Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use (May 18, 2001). The agency has determined that it 
would not be a ``significant energy action'' under the executive order 
and likely would not have a significant adverse effect on the supply, 
distribution, or use of energy.

VI. Additional Information

A. Comments Invited

    The FAA invites interested persons to participate in this 
rulemaking by submitting written comments, data, or views. The Agency 
also invites comments relating to 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, or a

[[Page 14630]]

specific question posed by the FAA, and fully explain the rationale for 
any comment, include supporting data, if applicable. To ensure the 
docket does not contain duplicate comments, commenters should send only 
one copy of written comments, or if comments are filed electronically, 
commenters should submit only one time. The FAA requests that all 
comments be submitted in English.
    The FAA will file in the docket all comments it receives, as well 
as a report summarizing each substantive public contact with FAA 
personnel concerning this ANPRM. Before acting on this ANPRM, the FAA 
will consider all comments it receives on or before the closing date 
for comments. The FAA will consider comments filed after the comment 
period has closed if it is possible to do so without incurring expense 
or delay. The Agency may change its potential proposals in light of the 
comments it receives.
    Proprietary or Confidential Business Information: Do not file 
proprietary or confidential business information in the docket. Such 
information must be sent or delivered directly to any of the persons 
identified in the FOR FURTHER INFORMATION CONTACT section of this 
document, and marked as proprietary or confidential. If submitting 
information on a disk or CD ROM, mark the outside of the disk or CD 
ROM, and identify electronically within the disk or CD ROM the specific 
information that is proprietary or confidential.
    Under 14 CFR 11.35(b), if the FAA is aware of proprietary 
information filed with a comment, the Agency does not place it in the 
docket. It is held in a separate file to which the public does not have 
access, and the FAA places a note in the docket that it has received 
it. If the FAA receives a request to examine or copy this information, 
it treats it as any other request under the Freedom of Information Act 
(5 U.S.C. 552). The FAA processes such a request under Department of 
Transportation procedures found in 49 CFR part 7.

B. Availability of Rulemaking Documents

    Electronic copies of rulemaking documents may be obtained from the 
Internet by--
    1. Searching the Federal eRulemaking Portal (http://www.regulations.gov);
    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 Federal Digital 
System at http://www.gpo.gov/fdsys/.
    Copies may also be obtained 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. 
Commenters must identify the docket or notice number of this 
rulemaking.
    All documents the FAA considered in developing this ANPRM, 
including economic analyses and technical reports, may be accessed from 
the Internet through the Federal eRulemaking Portal referenced in item 
(1) above.

    Issued in Washington, DC, under the authority set forth in 49 
U.S.C. 44733 on: March 5, 2014.
James R. Fraser,
Federal Air Surgeon.
[FR Doc. 2014-05653 Filed 3-14-14; 8:45 am]
BILLING CODE 4910-13-P
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