After a two-year effort, the Federal Aviation Administration (FAA) has rewritten its 16-year-old rules governing drug and alcohol testing in commercial aviation. An earlier draft of the rules would have placed restrictive hiring procedures on the regional airline industry. While the new rules were published in January, the agency has spent the last several weeks clarifying them.

The new rules cover three critical facets of the workplace -- pre-employment screening, testing subcontractors and the minutiae of filing abuse-prevention programs.

In the last 10 years, more than 19,400 individuals were precluded from getting a safety-sensitive job in the aviation industry because of pre-employment screening, according to the FAA. "Failure of a pre-employment test is a barrier to an individual's entry into a safety-sensitive work. Thus it is vital that the language requiring pre-employment testing be as clear as possible in order to maximize the efficiency of its use. In the absence of the very clear 'hiring' event, some employers have misunderstood the pre-employment testing requirement," the FAA said.

"The FAA believes that certain employers had misunderstood the current requirements." The agency hopes the new language will reduce the number of pre-employment enforcement cases. The FAA started 197 legal proceedings from 2000 to 2002 for screening procedure violations.

In its proposed rule change, the agency wanted to go back to the original 1988 language as a "clearer standard" than the wording adopted in 1994. The agency again wanted employers to test prospective workers before they are hired for safety-sensitive positions.

A number of aviation trade groups, including the Regional Airline Association (RAA), objected to the new wording. "There was some confusion when the rule was issued," said Deborah McElroy, the RAA's executive director. The association managed to get the government to recognize that a variation of the status quo works, she added.

"What we clarified for them," McElroy said, "is that we are not hiring a person to be a pilot, but we are hiring them to be a trainee. It is a legal distinction and a 'bright line event' (no gray area) between a trainee and being hired as a pilot. The training needs to be completed before being hired as a pilot. Before we hire them for a covered function, we have to verify a negative [drug] test."

In the airline industry, McElroy said the training candidates for pilots, flight attendants and mechanics have their drug and alcohol screening completed on the first day of training school. "We can continue with the system where we test on the first day," she said.

It would have been costly and difficult to implement the changes first proposed by the FAA, she added. Instead of an experienced, centralized testing operation, job candidates would have been required to be tested in their hometowns before departing for training school. McElroy said these local test operators might not be familiar with the FAA standards. "By doing it at the training facility, it ensures a higher level of quality than doing it all around the country. It is important because we are talking about people's careers and rights."

The issue is important to the regional airlines, she added, because it is one of the few segments of the industry that is hiring new employees in safety-sensitive positions. McElroy noted that the regional carriers have a thorough system to verify an applicant's background and character before the person reports to training school.

Requirements For Repair Stations, Vendors

In the final wording the FAA adopted on Jan. 12, the agency appeared to be imposing strict new rules on the aircraft servicing industry. "The FAA basically said that we need to begin testing every tier in the safety-sensitive network," said Sarah MacLeod, executive director of the Aeronautical Repair Station Association (ARSA), which has 560 company-members. This could be interpreted to include vendors who are subcontractors to those doing non-safety chores, such as dry-cleaning seat covers or repairing video recorders. She said a literal reading would require Sony, for example, to certify that all of its video recorder servicing employees are screened for drug and alcohol abuse.

"I am the one taking air worthiness responsibly," MacLeod said, placing herself in the role of a mechanic. "I am the one that tests it. I am the one that inspects it. I am the one that makes sure it is cool. I am that performing under the FAA rules. Test me, but don't test everyone below me."

In a Jan. 30 letter, Diane Wood, the manager of the FAA Drug Abatement Division, wrote to MacLeod's group to clarify the final rule. "We did not intend for the final rule to address the issue of 'direct contractor employees' to repair stations, otherwise referred to as 'subcontractors' to employers. We decided not to resolve the issue of testing because ARSA and others stated they believe this was more than clarifying."

Instead, the FAA will begin the supplemental rulemaking process "in the near" future on the issue, Wood wrote.

"We kind of won," MacLeod said, "because we at least delayed the rule."

Prevention Programs Need Less Paperwork

The new rules require new information to be kept on file of those firms participating in the Antidrug and Alcohol Misuse Prevention Programs. Previously, McElroy said vendors had to have a program stamped for approval. The new program, she said, does not require the same amount of updating as before.

Under the old rules, the FAA estimated that the 7,240 plan holders submit 490 amendments each year, The agency said under the new rules, less information will be requested than before and only one statement will be needed instead of two. The new paperwork was to have been filed by Feb. 11.

>>Contact: Deborah McElroy, RAA, (202) 367-1170; Sarah MacLeod, ARSA, (703) 739-9543. Further information is available on the FAA docket at www.dms.dot.gov. Case: FAA-2002-11301.<<