FR Doc 04-27216

[Federal Register: December 14, 2004 (Volume 69, Number 239)]
[Proposed Rules]
[Page 74897-74904]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14de04-35]

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Part V

Department of Transportation

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Federal Aviation Administration

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14 CFR Parts 61, 63, et al.

Disqualification for Airman and Medical Certificate Holders Based on
Alcohol Violations and Refusals to Submit to Drug or Alcohol Testing;
Proposed Rule

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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).

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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

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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

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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: walk-aways 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 cost-efficient,
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 pre-

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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 pre-employment 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 pre-employment 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 post-accident, 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

[[Page 74902]]

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 above-
specified 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 inflation-adjusted 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.

[[Page 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 Sec. 61.14(a) to read as follows:

Sec. 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 Sec. 63.12b(a) to read as follows:

Sec. 63.12b Refusal to submit to a drug or alcohol test.

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 Sec. 65.23(a) to read as follows:

Sec. 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 Sec. 65.46a(f) to read as follows:

Sec. 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 Sec. 67.107(b)(2) to read as follows:

Sec. 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 Sec. 67.207(b)(2) to read as follows:

Sec. 67.207 Mental.

Sec. 67.307 Mental.

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 Sec. 91.17 paragraphs (a)(4), (c)(1) introductory text
and (c)(2) to read as follows:

Sec. 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

[[Page 74904]]

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 Sec. 121.458(f) to read as follows:

Sec. 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 Sec. 135.253(f) to read as follows:

Sec. 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 safety-sensitive 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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