06-3277. Antidrug and Alcohol Misuse Prevention Programs for Personnel Engaged in Specified Aviation Activities

AGENCY:

Federal Aviation Administration (FAA); DOT.

ACTION:

Final rule; delay of compliance date.

SUMMARY:

The FAA is delaying the compliance date for the final rule clarifying that contractors, including subcontractors at any tier, must be subject to drug and alcohol testing. This action is necessary because it has come to our attention that some original equipment manufacturers (OEMs) and other entities may be confused regarding whether they are performing maintenance or preventive maintenance duties subject to drug and alcohol testing, or manufacturing duties not subject to testing. The effective date of April 10, 2006, will remain the same, but this action extends the compliance date until October 10, 2006, which gives OEMs and others sufficient time to determine what work is subject to drug and alcohol testing.

DATES:

The effective date of the final rule published at 71 FR 1666 (January 10, 2006) remains April 10, 2006, but the compliance date is delayed until October 10, 2006.

FOR FURTHER INFORMATION CONTACT:

Diane J. Wood, Manager, Drug Abatement Division, AAM-800, Office of Aerospace Medicine, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone [phone].

SUPPLEMENTARY INFORMATION:

Availability of Final Rule

You can get an electronic copy using the Internet by:

(1) Searching the Department of Transportation's electronic Docket Management System (DMS) Web page (http://dms.dot.gov/​search);

(2) Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/​regulations_​policies/;;; or

(3) Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/​fr/​index.html.

You can also get a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by calling [phone]. Make sure to identify the docket number, notice number, or amendment number of this rulemaking.

Small Business Regulatory Enforcement Fairness Act

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. Therefore, any small entity that has a question regarding this document may contact their local FAA official, or the person listed under FOR FURTHER INFORMATION CONTACT. You can find out more about SBRFA on the Internet at our site, http://www.faa.gov/​regulations_​policies/​rulemaking/​sbre_​act/​.

Authority for this Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in subtitle VII, part A, chapter 451, section 45102, Alcohol and Controlled Substances Testing Programs. Under section 45102, the FAA is charged with prescribing regulations to establish programs for drug and alcohol testing of employees performing safety-sensitive functions for air carriers and to take certificate or other action when an employee violates the testing regulations. This regulation is within the scope of the FAA's authority because it will provide more time for entities opting to conduct drug and alcohol testing and to identify which employees are performing a safety-sensitive function for a regulated employer by contract. This rulemaking is a current example of FAA's continuing effort to ensure that only drug- and alcohol-free individuals perform safety-sensitive functions for regulated employers.

The Final Rule

The FAA issued a final rule to clarify that each person who performs a safety-sensitive function for a regulated employer by contract, including by subcontract at any tier, is subject to testing (71 FR 1666, January 10, 2006). The rulemaking clarified that there is no differentiation between levels of contractors when safety-sensitive work is being performed.

Since the inception of the drug and alcohol testing regulations in 1988 and 1994, respectively, (53 FR 47024, November 11, 1988; 59 FR 42922, August 19, 1994), individuals performing maintenance and preventive maintenance for air carriers operating under part 121, 135, or section 135.1(c) operators have been required to be subject to drug and alcohol testing. Contractors, including subcontractors, have been filing their drug and alcohol testing programs with the FAA since the inception of the regulations. It has long been recognized by the regulated air carrier employers and their contractors/subcontractors that drug and alcohol testing has been required for maintenance and preventive maintenance duties. Approximately 4,300 contractors, including certificated repair stations and companies without certificates, have filed their drug and alcohol testing programs and more than 3,000 of these contractors have been inspected by the Drug Abatement Division inspectors during the last 15 years.

Although it has been clear that outsourcing the maintenance services does not relieve the air carriers of their obligations to require testing of the individuals performing safety-sensitive work, some individuals performing safety-sensitive functions by contract may not have been subject to testing. It has come to our attention that some original equipment manufacturers (OEMs) and other entities may be confused as to whether they are performing manufacturing or maintenance and preventive maintenance duties. This distinction is important because employees engaged solely in manufacturing are not subject to drug and alcohol testing, but those performing maintenance or preventive maintenance are subject to drug and alcohol testing. As we had done in 1988, when entities began testing for the first time, we have decided to provide the contractors, including subcontractors at any tier, extra time for complying with the drug and alcohol testing regulations for the first time.

Also, on March 8, 2006, the FAA received a request to extend the compliance date for the January 10, 2006, final rule. The petition was submitted jointly by nine associations, including the Regional Airline Association, and the Air Transport Association of America. This petition requested the FAA to extend the effective date “until 6 months after the issuance of the appropriate guidance by the FAA.” Specifically, the petition requested guidance on “what constitutes maintenance” and how higher tier contractors and employers can ensure compliance by lower tier entities.

In response to the petition and in consideration of other industry communications, we have decided to delay the compliance date for the clarification regarding subcontractors for 6 months, until October 10, 2006. We believe that the extension of the compliance date provided in this final rule will give OEMs and other entities that are not already conducting testing additional time to determine if their work is subject to drug and alcohol testing. The extra time will also give these entities an opportunity to decide whether to conduct their own testing programs or to make arrangements to have their employees covered under the testing programs of the employers with whom they contract. In response to the request for guidance, we will soon provide more substantive guidance on a range of subjects such as cleaning of aircraft, entertainment system components, deicing, and decorative plating. In addition, we will provide a contact person to whom industry can direct questions concerning maintenance and preventative maintenance.

Paperwork Reduction Act

There are no new requirements for information collection associated with this amendment because this is only an extension of time for entities complying for the first time with the drug and alcohol testing regulations.

International Compatibility

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to comply with International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has reviewed the corresponding ICAO Standards and Recommended Practices and has identified no differences with these proposed regulations.

Good Cause for “No Notice”

Sections 553(b)(3)(B) and 553(d)(3) of the Administrative Procedures Act (APA) (5 U.S.C. Sections 553(b)(3)(B) and 553(d)(3)) authorize agencies to dispense with certain notice procedures for rules when they find “good cause” to do so. Under section 553(b)(3)(B), the requirements of notice and opportunity for comment do not apply when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” The FAA finds that notice and public comment on this final rule are impracticable. For the APA, “impracticable” means that, if notice and comment procedures were followed, they would defeat the purpose of the rule. As explained previously, the purpose of this final rule is to extend the compliance date for subcontractors performing safety-sensitive functions for a regulated employer to be covered under a drug and alcohol testing program. The effective date of this clarification remains April 10, 2006. This final rule extends the compliance date until October 10, 2006. Coordinating and issuing rulemaking documents will take time under current procedures. We cannot issue a notice, receive comments, and issue a final rule before the current effective date. OEMs and other entities that had not previously chosen to implement drug and alcohol testing may need additional time before the compliance date to identify which employees are performing maintenance or preventive maintenance duties and to implement their drug and alcohol testing programs for these employees. Any delay in issuing this final rule could cause OEMs and other entities confusion if they try to establish drug and alcohol testing programs too quickly and for the wrong employees. Therefore, it is “impracticable” to provide notice and opportunity to comment.

Good Cause for Immediate Adoption

In accordance with 5 U.S.C. 553(b)(3)(B), FAA finds good cause for issuing this rule without prior notice and comment. Seeking public comment is impracticable, unnecessary, and contrary to the public interest. This delay of compliance date will give OEMs and other entities sufficient time to implement their drug and alcohol testing programs for the first time or to become covered under an employer's drug and alcohol testing program, in accordance with 14 CFR part 121, appendices I and J. Given the imminence of the effective date, seeking prior public comments on this temporary delay would have been impracticable, as well as contrary to the public interest in the orderly promulgation and implementation of this rule.

Executive Order 12866 and DOT Regulatory Policies and Procedures

Executive Order 12866, Regulatory Planning and Review, directs the FAA to assess both he costs and benefits of a regulatory change. We are not allowed to propose or adopt a regulation unless we make a reasoned determination that the benefits of the intended regulation justify its costs. Our assessment of this proposal indicates that its economic impact is minimal. Since its costs and benefits do not make it a “significant regulatory action” as defined in the Order, we have not prepared a “regulatory impact analysis.” Similarly, we have not prepared a “regulatory evaluation,” which is the written cost/benefit analysis ordinarily required for all rulemaking proposals under the DOT Regulatory and Policies and Procedures. We do not need to do the latter analysis where the economic impact of a proposal is minimal.

Economic Evaluation, Regulatory Flexibility Determination, Trade Impact Assessment, and Unfunded Mandates Assessment

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 directs each Federal agency to propose or adopt a regulation only if the agency makes a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (19 U.S.C. section 2531-2533) bans agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Act requires agencies to consider international standards. Where suitable, the Trade Act directs agencies to use those international standards as the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules. This requirement applies only to rules that include a Federal mandate on State, local, or tribal governments, likely to result in a total expenditure of $100 million or more in any one year (adjusted for inflation). In conducting these analyses, the FAA determines that this rule:

(1) Has benefits which justify its costs and is not a “'significant regulatory action”' as defined in the Executive Order and as defined in DOT's Regulatory Policies and Procedures;

(2) Will not have a significant impact on a substantial number of small entities;

(3) Has minimal effects on international trade; and

(4) Does not impose an unfunded mandate on State, local, or tribal governments or on the private sector.

Economic Summary

This rule extends the compliance date for OEMs and other entities to establish their drug and alcohol testing programs or to join the testing programs of the employers for which they are performing safety-sensitive work. This action is necessary because some OEMs and other entities who had not previously chosen to implement drug and alcohol testing may be confused about which employees are subject to drug and alcohol testing. Such contractors, including subcontractors at any tier, may not have separated their manufacturing from their repair duties. These contractors may need additional time before the compliance date to identify which employees are performing maintenance or preventive maintenance duties. These contractors will need to implement their drug and alcohol testing programs for these employees or to join the employees in the testing programs of the employers for which they are performing safety-sensitive work.

Thus, delaying the compliance date for the rule by 6 months will give the regulated entities additional time to determine which employees need to be covered as well as the best options for testing. The FAA believes that this extension will benefit these entities by helping to eliminate any confusion and allowing them to make more informed choices, potentially leading to lower implementation costs.

Regulatory Flexibility Determination

The Regulatory Flexibility Act (RFA) of 1980, 5 U.S.C. 601-612, establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the business, organizations, and governmental jurisdictions subject to the regulation.” To achieve that principle, the RFA requires agencies to solicit and consider flexible regulatory proposals to explain the rationale for their actions. The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.

However, if an agency determines that a proposed or final rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

This final rule merely extends the compliance date for the subcontractor clarification final rule. Its economic impact is minimal. Therefore, as the Administrator of the FAA, I certify that this action will not have a significant economic impact on a substantial number of small entities.

Trade Impact Assessment

The Trade Agreements Act of 1979 prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule and determined that it has only a domestic impact.

Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in a $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $120.7 million in lieu of $100 million.

This final rule does not contain such a mandate. Therefore, the requirements of Title II of the Unfunded Mandates Reform Act of 1995 do not apply.

Executive Order 13132, Federalism

The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. We determined that this action will not have a substantial direct effect on the States, or the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, we have determined that this final rule does not have federalism implications.

Environmental Analysis

FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this proposed rulemaking action qualifies for the categorical exclusion identified in paragraph 312(d) and involves no extraordinary circumstances.

Regulations That Significantly Affect Energy Supply, Distribution, or Use

The FAA has analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 18, 2001). We have determined that it is not a “significant energy action” under the executive order because it is not a “significant regulatory action” under Executive Order 12866, and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

List of Subjects in 14 CFR Part 121

• Air carriers
• Aircraft
• Airmen
• Alcohol abuse
• Alcoholism
• Aviation safety
• Charter flights
• Drug abuse
• Drug testing
• Safety
• Transportation

The Amendment

For the reasons set forth above, the Federal Aviation Administration is delaying the compliance date for the final rule published January 10, 2006 (71 FR 1666) from April 10, 2006 until October 10, 2006. The effective date of the January 10, 2006, final rule remains April 10, 2006.

Issued in Washington, DC, on March 31, 2006.

Marion C. Blakey,

Administrator.