[Federal Register Volume 65, Number 9 (Thursday, January 13, 2000)]
[Proposed Rules]
[Pages 2079-2080]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-862]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 121 and 129
[Docket No. 27066; Notice No. 92-18]
RIN 2120-AE79
Antidrug Program and Alcohol Misuse Prevention Program for
Employees of Foreign Air Carriers Engaged in Specified Aviation
Activities
AGENCY: Federal Aviation Administration, DOT.
ACTION: Withdrawal of proposed rule.
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SUMMARY: The Omnibus Transportation Employee Testing Act of 1991 (the
Act) authorized the Federal Aviation Administration (FAA) Administrator
to prescribe regulations that would require foreign air carriers to
establish drug and alcohol testing programs for employees performing
safety-sensitive aviation functions, but only to the extent such
regulations are consistent with the international obligations of the
United States and take into consideration any applicable laws and
regulations of foreign countries. This document withdraws the proposed
rulemaking to require foreign air carriers to establish drug and
alcohol testing programs for their employees performing safety-
sensitive aviation functions within the territory of the United States.
The FAA has determined that through the International Civil Aviation
Organization (ICAO) multilateral action has been taken to support an
aviation environment free of substance abuse. However, if the threat to
aviation safety posed by substance abuse has increased or requires
additional efforts and the international community has not adequately
responded, the FAA will take appropriate action, including, if
necessary, the reinitiation of this rulemaking.
DATES: The proposed rule is withdrawn as of January 13, 2000.
FOR FURTHER INFORMATION CONTACT: Ms. Diane J. Wood, Office of Aviation
Medicine, Drug Abatement Division (AAM-800), Federal Aviation
Administration, 800 Independence Ave., SW., Washington, DC 20591;
telephone (202) 267-8442.
SUPPLEMENTARY INFORMATION:
Background
In the Omnibus Transportation Employee Testing Act of 1991, the
Administrator was authorized, among other things, to prescribe
regulations requiring foreign air carriers to implement drug and
alcohol testing programs, but only if such regulations as were
consistent with the international obligations of the United States. The
Administrator was also directed to take into consideration foreign laws
and regulations.
Pursuant to this statute, in December 1992, the FAA issued an
advance notice of proposed rulemaking (ANPRM) in which a number of
questions about the legal, practical, and cultural issues associated
with testing were posed [57 FR 59473]. The FAA received 65 comments on
the ANPRM, most of which were provided by foreign governments of
foreign air carriers. Nineteen of the comments were procedural,
requesting an extension of the comment period. Three comments were
received that supported the concept of unilateral imposition of testing
requirements on foreign air carriers. The remaining comments stated
objection in whole or in part to the possible unilateral imposition of
testing requirements on foreign air carriers in the United States. In
February 1994, the FAA issued a notice of proposed rulemaking (NPRM) to
require foreign air carriers operating to the United States to
implement testing programs like those required of U.S. carriers unless
multilateral action was taken to support an international aviation
environment free of substance abuse [59 FR 7420].
The FAA cited as a specific example of such action the work in
progress by an International Civil Aviation Organization (ICAO) working
group to develop guidance material on substance abuse prevention
methodologies. ICAO is a treaty organization through which the
signatory countries (known as the ``Contracting States'') develop and
promote safe and efficient international aviation. There are currently
more than 180 Contracting States (including the United States),
covering virtually every part of the world. The Contracting States
[[Page 2080]]
look to ICAO for standards, recommended practices, and guidance on
issues related to aviation.
A significant number of the foreign governments for foreign air
carriers that responded to the NPRM expressed support for deferring to
ICAO to take action on substance abuse prevention. Their comments also
reiterated the concerns expressed following publication of the ANPRM,
with further discussion of the possible adverse consequences and costs
that would likely follow any imposition of mandatory testing programs.
Several commenters noted that the laws of the jurisdiction in which
their employees are hired could prohibit employers from complying with
mandatory testing regulations imposed by the United States.
The commenters that favored imposition of regulations requiring
drug and alcohol testing on foreign air carriers primarily raised two
issues: first, that safety demands imposition of the regulations; and
second, that U.S. carriers would be placed at a competitive
disadvantage by being required to incur costs not faced by foreign air
carriers.
With respect to the first concern, the FAA remains committed to
ensuring aviation safety. However, in light of recent ICAO action, as
well as the significant practical and legal concerns that have been
raised by the commenters, it does not appear that this rulemaking at
this time is the best way to ensure that safety is not compromised.
Because of the ICAO action, the FAA has determined that unilateral
imposition of testing regulations on foreign air carriers is not
warranted.
Several factors were weighed in making this determination. The FAA
has an active program to assess whether foreign air carriers are held
to international standards by their countries of registry--standards
that include medical requirements for flight crewmembers and a
prohibition on the operation of aircraft by impaired pilots.
Also, on February 24, 1998, the 153rd Session of the ICAO Council
met and adopted amendments to the Standards and Recommended Practices
contained in Appendix A of the Chicago Convention. Specifically, a
Standard was adopted which applies to individuals, and prohibits them
from performing safety-critical functions while under the influence of
any psychoactive substance. A psychoactive substance is defined as
``alcohol, opioids, cannabinoids, sedatives and hypnotics, cocaine,
other psychostimulents, hallucinogens, and volatile solvents, whereas
coffee and tobacco are excluded.'' The Standards are required to appear
within the domestic regulations of each Contracting State, unless the
Contracting State has filed a difference with ICAO to disavow the
Standard. The ICAO Council also adopted a Recommended Practice which
encourages the Contracting States to identify and remove personnel who
engage in problematic use of substances. The Recommended Practice
incorporates the ``Manual on Prevention of Problematic Use of
Substances in the Aviation Workplace,'' ICAO Document 9654-AN/945
(``Manual''), the English version of which was published in September
1995. The FAA has reviewed this document and has determined that it
clearly supports a safe aviation environment.
As set forth in the first paragraph of the Manual, ICAO recognizes
that ``[a]viation workers have a special obligation to ensure that they
are capable of performing their duties to the best of their abilities.
Similarly, aviation regulatory authorities and industry employers have
a special obligation to ensure that aviation safety is maintained at a
high level and that precautions necessary to achieve this are
implemented.'' Id. at para.1.1 The Manual further establishes ICAO's
concurrence with the position of the FAA that ``[e]specially in
international aviation, it is fair to say that the responsibility for
hundreds of human lives and vast quantities of valuable property
resting with safety-sensitive personnel in civil aviation make it
imperative that these workers perform their duties in a professional
manner and without any impairment in performance due to substance
use.'' Id. at para. 1.15 Finally, ICAO also recognizes that far from
being simply a U.S. problem, as some commenters to this rulemaking have
asserted, ``[i]t is necessary that aviation regulators and employers
recognize that substance use is a pandemic affecting most if not all
parts of the world.'' They must also realize that ``any employee may be
susceptible to the pressures and influences of the professional and
social environment or certain life events, and it would be dangerous to
assume that aviation is not vulnerable to t he consequences of these
pressures and influences. Prevention efforts should not be delayed
until a significant problem has been identified. Responding only after
an accident has occurred or public trust has been broken defeats the
purpose of prevention.'' Id at para. 1.20 (emphasis added).
The other issue raised by commenters is that of competitive
disadvantage. While the FAA is cognizant of the costs of the antidrug
rules to domestic carriers, those costs alone do not warrant imposition
of similar regulations on foreign air carriers when compared to recent
multilateral actions as well as the legal and practical difficulties in
imposing such rules. The FAA has also determined that the antidrug
rules provide significant benefits to U.S. air carriers in terms of
increased worker productivity, reduced absenteeism and medical costs,
and other benefits associated with workplace substance abuse prevention
programs. Further, companies with active prevention programs could be
perceived by travelers (especially those in the United States) as safer
than companies without such programs providing another benefit to
domestic carriers.
Withdrawal of Proposed Rule
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
reinitiation of this rulemaking.
Issued in Washington, DC, on January 10, 2000.
Robert Poole,
Acting Federal Air Surgeon.
[FR Doc. 00-862 Filed 1-12-00; 8:45 am]
BILLING CODE 4910-13-M
