March 14, 2005
Docket Management System
Department of Transportation
Room PL-401
400 Seventh Street, NW
Washington, District of Columbia 20590-0001
Docket No. FAA-2004-19835
Following are the comments of the Drug & Alcohol Testing Industry Association (DATIA) on the Notice of Proposed Rulemaking for the Federal Aviation Administration and Department of Transportation’s amendments to the Disqualification for Airman and Medical Certificate Holders Based on Alcohol Violations and Refusals to Submit to Drug or Alcohol Testing.
DATIA is a 1,200-member national trade association representing the full spectrum of drug and alcohol testing service agents including laboratories, collection sites, C/TPAs, BATs, MROs, SAPs, employers, and testing device manufacturers. DATIA’s mission includes working closely with key policy makers in federal agencies and in congress to ensure that the interests of the industry are heard and taken into account when changes in drug and alcohol testing rules are proposed. We appreciate the opportunity to comment on this rulemaking.
DATIA generally supports FAA’s proposals, but does not see the need to make a refusal to submit to a pre-employment test a medically disqualifying factor. We feel that the FAA should be follow the lead of other modes of transportation and only require that a person who refuses to submit to a pre-employment test cannot be hired in a covered (safety-sensitive) position.
14 CFR 61.14, 63.12(b), and 65.23
DATIA supports FAA’s amendment to include refusals to take a return-to-duty test, and make the airmen medical certificate requirements consistent with the general requirements in 49 CFR Part 40. However, we do not see the need to make a refusal to submit to a pre-employment test a medically disqualifying factor. As the FAA is seeking to make these regulations consistent with Part 40, DATIA recommends that the same wording regarding pre-employment refusals be used in this section as in Part 40.191(a)1 and 2:
§40.191 What is a refusal to take a DOT drug test, and what are the consequences?
(a) As an employee, you have refused to take a drug test if you:
(1) Fail to appear for any test (except a pre-employment test) within a reasonable time, as determined by the employer, consistent with applicable DOT agency regulations, after being directed to do so by the employer. This includes the failure of an employee (including an owner-operator) to appear for a test when called by a C/TPA (see §40.61(a);
(2) Fail to remain at the testing site until the testing process is complete; Provided, That an employee who leaves the testing site before the testing process commences (see §40.63(c)) for a pre-employment test is not deemed to have refused a test;
These sections make it clear that DOT does not view refusals-to-test on a pre-employment test in the same light as refusals-to-test on other DOT-mandated drug tests.
DATIA also supports the change to refusals to submit to return to duty tests in 14 CFR 67.107(b)(2), 67.207(b)(2), and 67.307(b)(2). In general, DATIA supports adding refusals to test as a medically disqualifying factor, but not for pre-employment tests.
14 CFR 91.17(a) and (c)
DATIA applauds FAA’s proposal to recognize current breath alcohol testing technology. As noted in the rulemaking, breath alcohol technology has been used by other DOT-regulated industries, including aviation, since 1994, and is a more cost-efficient, less invasive, and widely-used technology.
14 CFR Part 121, Appendix I, Section II and Appendix J, Section I.D.
DATIA supports clarifying this section to include remaining readily available for post-accident alcohol testing. DATIA also supports FAA’s proposal to change the wording referring to 49 CFR 40.191 and 40.261 to “conduct provided” because those sections do not constitute an exhaustive list of interference with a test.
14 CFR Part 121, Appendix I, VI.D.2, and Appendix J, Section V.D.2
As DATIA supports the amendment to include a refusal to submit to a return-to-duty tests as a basis for receiving an airman medical certificate, we also support the proposed reporting requirements for return to duty refusals.
14 CFR Part 121, Appendix I, Sections VII.C.1, 2, 3, 4, and 6
DATIA agrees that the MRO should submit information regarding a verified positive drug test to the Federal Air Surgeon within two (2) working days, and that an employer’s SAP reports to the Federal Air Surgeon should also be two (2) working days, and for both to retain copies of their reports.
Further, DATIA commends the clarification that will avoid fraudulent use of airman medical certificates by requiring employers to verify that an airman being returned to duty has been issued a new airman certificate that is dated after the verified positive or refusal to test.
14 CFR 65.46a(f), 121.458(f), and 135.253(f)
DATIA supports making this section consistent with Part 40, and changing the wording to “any” required alcohol test instead of listing individual types of tests.
Thank you for the opportunity to submit comments on this rulemaking. If you have questions, please feel free to contact me at 703.548.0901 or mmoskal@datia.org.
Sincerely,
Melissa Moskal
Executive Director
