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Issued as part of the process of public consultation by CASA’s Regulatory Development Management Branch

Document NPRM 0703SS – July 2007

Notice of Proposed Rule Making

Drug and Alcohol Testing Programme for the Aviation

Industry

Proposed Part 99 of the Civil Aviation Safety Regulations 1998 (CASR)

Who this NPRM applies to It is expected that this proposal will affect the following persons in the aviation community: Flight crew, cabin crew (flight attendants), flight instructors, aircraft dispatchers, aircraft maintenance and repair personnel, aviation security personnel including screeners, air traffic controllers, baggage handlers, ground refuellers and other personnel with airside access including contractors.


Drug and Alcohol Testing Programme for

the Aviation Industry

Document NPRM 0703SS Page 1 of 24

Foreword

Context of this NPRM The purpose of this Notice of Proposed Rule Making (NPRM) is to initiate formal public consultation on a proposal to introduce a Drug and Alcohol Testing Programme, including an independent random testing regime and drug and alcohol management plans (DAMPs) for personnel undertaking safety-sensitive aviation activities in the Australian aviation industry.

Background On 18 March 2004, the Australian Transport Safety Bureau (ATSB) publicly released its report on a fatal accident that occurred at Hamilton Island in September 2002. A finding of that report was that the possible adverse effects on pilot performance of fatigue, recent cannabis use and post-alcohol impairment could not be discounted. In that report, the ATSB made a number of recommendations relating to the Civil Aviation Safety Authority (CASA) and the Department of Transport and Regional Services (DOTARS) jointly establishing the safety benefits of the introduction of a drug and alcohol testing programme for personnel understanding safety sensitive aviation activities in the Australian aviation industry. A review was undertaken by DOTARS and CASA, who produced a report on the "Safety Benefits of Introducing Drug and Alcohol Testing for Safety-Sensitive Personnel in the Aviation Industry" in January 2006. Annex A sets out the 17 recommendations of the DOTARS/CASA report. The full report is available at: http://www.dotars.gov.au/aviation/safety/drug.aspx The report was accepted in May 2006 by the Minister for Transport and Regional Services who agreed that all recommendations in the report should be implemented in the interests of the safety of air navigation. An initial discussion group of Government and Industry participants to consider issues around a Drug and Alcohol Testing Programme in the aviation industry was established as a prelude to CASA’s normal consultative processes which are conducted through the Standards Consultative Committee (SCC). The group met on three occasions on 1 June 2006, 4 July 2006 and 8 August 2006. The group was made up of representatives from airports, airlines, charter operators, flying training organisations, and Airservices Australia. A joint CASA / Industry / DOTARS project team was established on April 2007, under the auspices of the SCC, to consider how best to implement the recommendations of the DOTARS/CASA report. This team has provided subject matter expertise input into the Drug and Alcohol Testing Programme development process, supplementing the direction by the Minister to CASA to implement the recommendations set out in the January 2006 report.





The Aviation Legislation Amendment (2007 Measures No. 1) Bill 2007, is currently being considered by Parliament to provide an explicit regulatory power in the Civil Aviation Act 1988 for the regulatory proposals contained in this NPRM. The proposals in this NPRM are contingent on the proposed amendments to the Act becoming law.

Proposed regulatory changes CASA intends to establish a new Part 99 of the Civil Aviation Safety Regulations (CASRs) to cover all personnel undertaking safety-sensitive aviation activities, as defined in the Bill, who will be subject to the drug and alcohol testing programme. To this end, employers of safety-sensitive personnel will be required to have a Drug and Alcohol Management Plan and CASA intends to manage a random testing regime for all personnel undertaking safety-sensitive aviation activities.

How you can help us CASA is responsible under the Civil Aviation Act 1988, amongst other functions, for developing and promulgating appropriate, clear and concise aviation safety standards. In the performance of this function and the exercise of its powers, CASA must, where appropriate, consult with government, commercial, industrial, consumer and other relevant bodies and organisations.

Civil Aviation Act 1988 subsection 9(1)(c) and section 16

CASA is committed to working cooperatively with the aviation industry to maintain and enhance aviation safety. This is especially important as far as the development of standards and regulatory material is concerned.

CASA Standards Development and Rule Making Manual, 2.6.1

To ensure clear and relevant safety standards, CASA needs the benefit of your knowledge as an aviator, aviation consumer and/or provider of related products and services by completing the Response Form provided in this NPRM and returning it to CASA by 27 August 2007. I would like to thank you for expressing interest in this proposal and emphasise that no regulatory changes will be undertaken until all NPRM responses and submissions received by the closing date of 27 August 2007 have been considered. Greg Hood Group General Manager Personnel Licensing, Education & Training Group

26 July 2007





Contents Abbreviations ........................................................................................................ 4

1. The Consultation Process .............................................................................. 5What CASA does with your comments ................................................................................ 6

2. The Proposal .................................................................................................... 62.1 Purpose of this NPRM ......................................................................................... 6

2.2 Objective .............................................................................................................. 6

2.3 Overview .............................................................................................................. 7

2.4 Personnel undertaking safety-sensitive aviation activities ................................... 7

2.5 What will the permitted limits for drugs and alcohol be, and what drugs will be tested for by CASA and Industry? ....................................................................... 9

2.6 What types of testing will be conducted by CASA? ............................................. 9

2.7 What offences will be created for personnel to whom the drug and alcohol requirements apply? ............................................................................................ 10

2.8 Which organisations will be required to have a DAMP? ...................................... 11

2.9 How will DAMP Organisations establish their DAMPs? ...................................... 12

2.10 How will DAMP Organisations be required to deal with their contractors? ......... 12

2.11 What will be the minimum requirements for a DAMP? ........................................ 12

2.12 Auditing by CASA ................................................................................................ 14

2.13 Privacy issues ...................................................................................................... 14

2.14 Implications for medical certificates and the demerit point system ..................... 14

3. Benefits and Impacts ...................................................................................... 153.1 Safety impact of the introduction of a Drug and Alcohol Testing Programme ..... 15

3.2 Cost Benefit Analysis ........................................................................................... 15

3.3 Industry costs ....................................................................................................... 16

4. Implementation and Review ........................................................................... 164.1 Random Testing regime ....................................................................................... 16

4.2 Drug and Alcohol Management Plans ................................................................. 16

NPRM Response Form .........................................................................................

YOU CAN RESPOND ONLINE OR BY FAX, POST OR E-MAIL 19

A web-based online response form is offered as an alternative to the printed form in this NPRM. Online submission is the preferred method of sending your comments to CASA. If you are connected to the Internet, type casa.gov.au/newrules/ors into your web browser and follow the links for this NPRM.

Annex A – 17 Recommendations arising from the Safety Benefits of Introducing Drug and Alcohol Testing for Safety-Sensitive Personnel for the Aviation Industry ............................................................................................ A1





Abbreviations

ARFFS Aerodrome Rescue and Fire Fighting Services ATC Air Traffic Control ATSB Air Transport Safety Bureau BAC Blood Alcohol Content CAR Civil Aviation Regulations 1988 CASA Civil Aviation Safety Authority CASR Civil Aviation Safety Regulations 1998 CBA Cost Benefit Analysis DAMP Drug and Alcohol Management Plan DOTARS Department of Transport and Regional Services MRO Medical Review Officer NATA National Association of Testing Authorities NFRM Notice of Final Rule Making NPRM Notice of Proposed Rule Making NZ New Zealand OBPR Office of Best Practice Regulation (of the Productivity

Commission) OLDP Office of Legislative Drafting and Publishing (of the

Attorney-Generals Department) SCC Standards Consultative Committee





1. The Consultation Process

1.1 CASA is committed to working cooperatively with the aviation industry to maintain and enhance aviation safety. For that purpose, CASA has set up a joint CASA/ Industry forum, the Standards Consultative Committee (SCC), to involve the aviation industry formally during the development phase of regulatory material. The SCC brings together CASA staff and representatives from a diverse range of aviation industry organisations to work jointly, under a formal process during the development phase of regulatory material. The SCC examines proposed regulatory changes to determine if they are worth pursuing and assists CASA in the allocation of priorities to those projects. Aviation industry experts then work together with CASA staff in subordinate groups (SCC Sub-Committees and project teams) on the detailed development of regulatory material (both new regulations and amendments). 1.2 Development of this proposal has been a joint CASA/Industry/DOTARS undertaking. Following development of the initial framework by the CASA/DOTARS development team, discussion has continued internally between CASA’s Regulatory Development Management Branch, operational and support Groups, and the Legal Services Group, as well as externally with the Office of Legislative Drafting and Publishing of the Attorney-General’s Department (OLDP), the SCC, and the Productivity Commission’s Office of Best Practice Regulation (OBPR). 1.3 On 2 May 2006 the then Minister for Transport & Regional Services, Warren Truss announced that drug and alcohol testing would be introduced to the aviation sector. A copy of the media release and report titled “Safety Benefits of Introducing Drug and Alcohol Testing for Safety-Sensitive Personnel in the Aviation Industry” is available on the DOTARS website at http://www.dotars.gov.au/aviation/safety/drug.aspx. Annex A of this NPRM contains the 17 recommendations made in that report. 1.4 The SCC discussed the issue of implementing the Minister’s decision to introduce a Drug and Alcohol Testing Programme for all personnel undertaking safety-sensitive aviation activities in the aviation industry. The discussion and action items from the SCC meeting of 3 May 2006 were documented as follows:

“The Minister for Transport and Regional Services, the Honourable Warren Truss, MP, has issued a Media Release on Drug and Alcohol Testing. The press release stated that the government had accepted all of the 17 recommendations made by the Department of Transport and Regional Services in its report on this subject and CASA now had the responsibility of drafting the regulations applicable to aviation safety. The SCC chair noted that many members had been involved in consultation with DOTARS in the compilation of the report. It was noted that as the Final report and all its recommendations had been accepted by the Minister, CASA would go straight to an NPRM. This would give the public an opportunity to provide comment on the regulatory approach adopted by CASA in meeting the Government’s directed policy”.

See http://rrp.casa.gov.au/scc/ for further information on the SCC.





1.5 A project team of Government and Industry participants was then established, with direct linkages to the SCC. To ensure that the project team was inclusive and to ensure that all relevant issues were identified and duly considered, nominations for working group members were sought using the standard SCC process to ensure that it was staffed with subject matter experts who are broadly representative of those who will be affected by the project’s outcomes. The project team met on 3 May, 17 May and 21 June 2007 to discuss and formulate the proposal contained in this NPRM. 1.6 CASA now seeks comments on the proposal from the aviation industry at large and the general public.

What CASA does with your comments 1.7 At the end of the response period for public comments, all submissions will be analysed, evaluated and considered. Subsequent to the closing date for comments, a Notice of Final Rule Making (NFRM) containing a consolidated summary of responses, CASA’s responses, a disposition action, the final regulation amendment and a regulatory impact analysis of the proposed change will be prepared (as a Regulatory Impact Statement) and made available publicly in conjunction with the making of the regulatory amendments. 1.8 CASA is required to register each comment and submission received, but will not individually acknowledge a response unless specifically requested. However, the names of contributors will be published in the subsequent NFRM, except where CASA is specifically requested not to do so.

2. The Proposal

2.1 Purpose of this NPRM 2.1.1 The purpose of this NPRM is to initiate formal public consultation on a new proposed Part 99 of the Civil Aviation Safety Regulations (CASRs) relating to the introduction of a Drug and Alcohol Testing Programme for personnel undertaking safety-sensitive aviation activities in the aviation industry.

2.2 Objective 2.2.1 The objective of this proposal is to twofold:

• create legislation to enable CASA to require certain aviation industry participants to have in place a drug and alcohol management plan in the interests of the safety of air navigation.

• proposed regulations will also allow for the random testing of personnel undertaking safety-sensitive aviation activities for alcohol and specified drugs.

2.2.2 This proposal addresses the recommendations of the report on the “Safety Benefits of Introducing Drug and Alcohol Testing for Safety-Sensitive Personnel in the Aviation Industry” as set out in Annex A.





2.3 Overview 2.3.1 CASA intends to establish a Drug and Alcohol Testing Programme for personnel undertaking safety-sensitive aviation activities, in the CASRs. The programme will have two elements:

• First, industry will be required to establish drug and alcohol management plans ("DAMP") ("Industry Component"). See paragraph 2.8 below for organisations required to have a DAMP (i.e. "DAMP Organisations"). See paragraph 2.10 below for options in dealing with contractors.

• Second, CASA will conduct scalable random drug and alcohol testing in relation to all individuals who fall within the definition of personnel undertaking safety-sensitive aviation activities ("CASA Component"). Such random drug and alcohol testing will be driven by reasonable risk assessment so as to maximise the effectiveness of any testing undertaken.

2.3.2 It is anticipated that as part of the drug and alcohol testing programme, both CASA and industry will undertake activities in relation to drug and alcohol awareness and education. The intention is that testing by CASA and industry will be conducted as a component of a broader initiative designed to assist those associated with the civil aviation industry, to better understand the significance of drug and alcohol use in their environment, and to ensure that those people are aware of the serious risks posed by possible impairment caused by alcohol or drug use in that particular environment.

2.4 Personnel undertaking safety-sensitive aviation activities 2.4.1 Such persons should include all persons, including government officers, who undertake safety-sensitive aviation activities, meaning activities that impact directly or indirectly on the safety of civil air operations in Australian territory or the operation of Australian aircraft outside Australian territory. Safety-sensitive aviation activities will include but are not limited to the following activities:

• flight crew activities; • cabin crew activities; • flight instructor activities; • aircraft dispatcher and load controller activities; • activities involving aircraft maintenance and repair; • aviation security activities including activities involving screening; • air traffic controller activities; • baggage handling activities; • ground refuelling activities; • activities conducted “airside”; • activities undertaken by a person falling within the meaning of the following

definitions in regulation 2 of the CAR: "flight crew member", "crew member", "operating crew", "airship instructor", "authorised flight instructor", "balloon flight instructor" and "chief flying instructor";

• activities undertaken by a person holding a "flight crew licence" as that term is defined in regulation 2 of the CAR;





• activities undertaken by a person permitted to undertake maintenance activities pursuant to regulation 42ZC of the CAR;

• activities undertaken by a person appointed as a maintenance controller pursuant to regulation 42ZV of the CAR;

• activities undertaken by a person falling within the meaning of the following definitions in the Aviation Transport Security Act 2004: "airport security guard" and "screening officer";

• activities undertaken by a person falling within the meaning of “security officer” as defined in the Air Navigation Regulations 1947;

• activities undertaken by a person who holds an air traffic control licence or activities undertaken by a person who holds a flight service officer licence issued under Part 65 of the Regulations;

• activities undertaken by a person falling within the meaning of the definition of "ground handling agent" in regulation 92.010(1) of the Regulations;

• activities undertaken by a person falls within the definition of the term "servicing" in regulation 2 of the CAR;

• activities undertaken by a person appointed as a reporting officer for an aerodrome under regulation 139.125 or regulation 139.300 of the Regulations;

• activities undertaken by a person appointed as a works safety officer for aerodrome works pursuant to regulation 139.130 or regulation 139.135 of the Regulations;

• activities undertaken by a person appointed to conduct aerodrome serviceability inspections pursuant to regulation 139.220 of the Regulations;

• activities undertaken by a persons appointed to conduct aerodrome technical inspections pursuant to regulation 39.230 of the Regulations;

• activities undertaken by persons who undertake or provide aerodrome rescue and fire fighting services pursuant to subpart 139.H of the Regulations; and

• activities undertaken by a person falling within the meaning of the definition of a “deemed employee” under regulation 92.085 of the Regulations.

2.4.2 "Airside" means any part of an aerodrome up to and including its perimeter whether or not it is fenced, but excluding any part of the aerodrome that may be lawfully accessed by a member of the public without a specific authorisation by or on behalf of the aerodrome operator. Without affecting the generality of the foregoing, part of an aerodrome includes any of the following at the aerodrome:

• aircraft movement or parking areas; • an air traffic control facility; • an installation or equipment used for air navigation; • a hangar or other building for use by aircraft; • a school or other building used for flying training; • a place where maintenance is conducted on aircraft or aircraft parts; and • a place where aircraft or aircraft parts are manufactured.

2.4.3 It is intended that the regulations will also specify holders of particular ‘civil aviation authorisations’ etc whose activities will also be considered to be safety-sensitive aviation activities. The personnel who undertake any of the activities listed in paragraph 2.4.1 may be subject to testing in both the Industry Component and CASA Component of the Drug and Alcohol Testing Programme.





2.4.4 In addition, a DAMP Organisation may choose to test any other personnel who perform any activity which, in the opinion of the DAMP Organisation, may impact on civil aviation safety, i.e. the list of safety-sensitive aviation activities is not exhaustive and if a DAMP Organisation considers that a particular activity that is not expressly listed above could impact directly or indirectly on the safety of civil air operations, then the DAMP Organisation may test a person undertaking that activity.

2.5 What will the permitted limits for drugs and alcohol be, and what drugs will be tested for by CASA and Industry? 2.5.1 Both the Industry Component and the CASA Component of the programme will test for alcohol as well as cocaine, cannabis, opioids, amphetamines and benzodiazepines ("testable drugs"1). 2.5.2 The limits for alcohol and testable drugs ("permitted levels"2) will be as follows:

• for cocaine, cannabis, opioids, amphetamines ("Illicit Drugs") and benzodiazepines - below the relevant "confirmatory target concentrations" set out in Australian/NZ Standard 4308 for urine testing or Australian/NZ Standard 4760 for saliva testing, as confirmed by an appropriately qualified medical practitioner or medical review officer ("MRO"); and

• for alcohol - a blood alcohol content ("BAC") of below 0.02%, as confirmed by an appropriately qualified medical practitioner or MRO.

2.5.3 Role of MRO:

• Independent and Impartial Advocate; • Gatekeeper for the integrity and accuracy of the drug testing process; • Quality assurance review; • Direct contact with the candidate; • Timely Flow; and • Confidentiality.

2.5.4 Medical review of drug test results protects both employees and employers from the liabilities inherent in any drug-testing program. The integrity of a testing program depends on its fairness and accuracy: no individual should be labelled a substance abuser in error. The Medical Review Officer (MRO) plays a central role in ensuring that this does not happen. After interviewing a donor, the MRO may deem it necessary to consult with laboratory or collection site officials, refer the case to a local physician for a face-to-face interview and physical examination (a rare occurrence), or order a retest of the original specimen.

1 Section 33(1) of the Bill defines testable drug as "a drug specified in an instrument under subsection (2). Section 33(2) in turn provides that "The Minister may, by legislative instrument, specify a drug for the purposes of the definition of testable drug in subsection (1)."

2 Section 33(1) of the Bill uses the term "permitted level" when defining "positive test result". "positive test result, in relation to a drug or alcohol test of a body sample, means a finding by the person or body who was authorised under the regulations to conduct the test that the test reveals: (a) the presence of alcohol or a testable drug in the sample; and (b) if the test determined the level of alcohol or testable drug in the sample and a permitted level for alcohol or that drug is specified in the regulations—that the permitted level has been exceeded."





2.5.5 Upon conclusion of this process, the MRO will:

• determine that the result is scientifically accurate, lacks legitimate medical explanation, and report the result as positive; or

• determine that a legitimate medical explanation exists, substantiate and document that explanation, and report the result as negative.

2.6 What types of testing will be conducted by CASA? 2.6.1 Random Testing: Random testing will ensure the veracity of the tests, provide a deterrence factor and a means of reaching up to 50,000 personnel undertaking safety-sensitive aviation activities, not covered by a drug and alcohol management plan. 2.6.2 To better ensure compliance and to offer some deterrent effect, a confirmed positive result may lead to a range of enforcement actions. 2.6.3 CASA random testing will take place by:

• saliva and/or urine tests for testable drugs except for alcohol; and/or • breathalyser tests for alcohol.

2.6.4 All CASA testing will take place in Australia. At this point CASA does not intend to have any analysis of test samples conducted overseas but it may do so in the future if it considers it appropriate to do so. 2.6.5 If random testing reveals an initial positive test result, the person authorised by CASA to conduct drug and alcohol testing will direct the person who has produced the positive test not to undertake any activities described in paragraph 2.4.1 As is noted below, a refusal to stop undertaking such activities will constitute an offence. 2.6.6 The person authorised by CASA to conduct the drug and alcohol testing will, in the case of a person employed by a DAMP Organisation, contracted by a DAMP Organisation or employed by an entity contracted by a DAMP Organisation, inform a person responsible for the supervision of the person of the initial positive test result and of the person's obligation to stop undertaking the activities described in paragraph 2.4.1.

2.7 What offences will be created for personnel to whom the drug and alcohol requirements apply? 2.7.1 The Regulations will create the following offences for individuals:

• undertaking any safety-sensitive aviation activities when a test result from a CASA random test for alcohol or testable drugs reveals the presence of alcohol or testable drugs above the permitted level, as confirmed by an appropriately qualified medical practitioner or MRO. It is intended that: ° if an initial test for any of the testable drugs other than alcohol indicates an

initial positive result, then a National Association of Testing Authorities (NATA) accredited laboratory will conduct a confirmatory test in accordance with the relevant standard to verify the presence of testable drugs above the permitted levels. The confirmatory test will be confirmed by an appropriately qualified medical practitioner or MRO; and





° if an initial breathalyser test for alcohol shows a result above the permitted level, an additional breathalyser test for alcohol will be conducted approximately 20 minutes after the initial test to verify the first result. The confirmatory test will be confirmed by an appropriately qualified medical practitioner or MRO.

2.7.2 It is intended that it will be a strict liability offence for a person to:

• refuse to submit to a drug or alcohol test to be administered by a person authorised by CASA to conduct drug and alcohol testing;

• refuse to submit to a drug or alcohol test of the type that a person authorised by CASA to conduct drug and alcohol testing requests the person to undertake. It is intended that this will be a strict liability offence;

• refuse to stop and provide your name and address when asked to do so by a person authorised by CASA to conduct drug and alcohol testing. It is intended that this will be a strict liability offence;

• provide a name and address which is false when asked to provide a name and address by a person authorised by CASA to conduct drug and alcohol testing. It is intended that this will be a strict liability offence;

• tamper with or substituting samples in the testing process; and/or • refuse to stand down from undertaking an activity described in paragraph 2.4

above when requested by a person authorised by CASA to conduct drug and alcohol testing.

2.8 Which Organisations will be required to have a DAMP? 2.8.1 The Regulations will require the following organisations to have a DAMP ("DAMP Organisations"):

• air transport operators and flying training providers – ie those who hold an Air Operator Certificate issued under s.28 of the Civil Aviation Act 1988 ("Act");

• air traffic service provider – i.e. those who hold an approval as an air traffic service provider issued under Regulation 172.260 of the CASR;

• aviation maintenance and repair businesses – ie those who hold a certificate of approval issued under regulation 30(2A) of the CAR;

• aerodrome rescue and firefighting services providers – ie those who are approved as an ARFFS provider under Division 139.H.5 of the CASR;

• aeronautical telecommunication service and radionavigation service providers – ie those who hold an approval as defined in Regulation 171.010 of the CASR;

• aerodrome operators – i.e. those who hold any of the following civil aviation authorisations: ° aerodrome certificate issued under Regulation 139.050 of the CASR; or ° registration of aerodrome issued under Regulation 139.265 of the CASR.

• other entities required by CASA to have a DAMP. Contractors who undertake safety-sensitive aviation activities (as defined in paragraph 2.4 above) for the civil aviation industry may be required by CASA to develop a DAMP that meets the requirements specified in the Regulations. CASA may, by instrument, specify the contractors who fall within this category.





2.9 How will DAMP Organisations establish their DAMPs? 2.9.1 DAMP Organisations must have their own DAMP and ensure that the DAMP complies with the requirements set out in the Regulations (see paragraph 2.11 below for the requirements). CASA will offer guidance material which smaller organisations may choose to use to develop their DAMP. However, it will be each DAMP Organisation's responsibility to ensure that it complies with the requirements set out in the Regulations. 2.9.2 The Regulations will create an offence in relation to a DAMP Organisation's failure to implement its DAMP in accordance with the requirements set out in the Regulations. 2.9.3 DAMP Organisations will be responsible for the costs of implementing their DAMPs, including testing costs.

2.10 How will DAMP Organisations be required to deal with their contractors? 2.10.1 The Regulations will require DAMP Organisations to assess whether the activities of their contractors (with whom the DAMP Organisation has an ongoing relationship) could be considered to comprise any of the activities described in paragraph 2.4 above. If they do, then the DAMP Organisation must be satisfied that the contractor:

• has a DAMP which complies with the minimum requirements of a DAMP in the Regulations; or

• agrees to comply with the DAMP Organisation's own DAMP; or • has agreed to comply with another DAMP Organisation's DAMP which complies

with the minimum requirements of a DAMP specified in the Regulations. 2.10.2 It is intended that it will be a strict liability offence for a DAMP Organisation who uses a contractor which does not satisfy the terms of paragraph 2.10.1.

2.11 What will be the minimum requirements for a DAMP? 2.11.1 The Regulations will provide that a DAMP must contain provisions which provide that:

• the DAMP applies to personnel employed by the DAMP who perform or are available to perform the activities described in paragraph 2.4 above, including the personnel of contractors described in paragraph 2.4 above;

• drug and alcohol testing will be conducted: ° pre-employment in relation to a position that will involve performing a

safety-sensitive aviation activity (or, in the case of contractors' personnel, before the contractors' personnel start work with the DAMP Organisation for the first time in relation to a safety-sensitive aviation activity);

° for reasonable suspicion;





° post accident or serious incident;3 and ° following rehabilitation and return to work.

• the Regulations will not prohibit random testing or other types of testing that a DAMP Organisation may wish to undertake;

• personnel who perform or are available to perform the activities described in paragraph 2.4 above are to be precluded from undertaking any activity described in paragraph 2.4 if an initial test, conducted either by CASA or a DAMP Organisation, reveals a result above the permitted level for alcohol or a positive initial test result for testable drugs;

• if an initial test, conducted either by or on behalf of CASA or a DAMP Organisation, reveals a result above the permitted level for alcohol or a positive initial test result for testable drugs, then the personnel the subject of the initial positive test result cannot be returned to any activity described in paragraph 2.4 above until the DAMP Organisation is satisfied that the personnel does not have concentrations of alcohol or testable drugs above the permitted levels. A DAMP Organisation may be so satisfied through: ° additional initial testing; or ° a confirmed negative test result following an initial positive test; and/or ° consultation with a MRO or an appropriately qualified medical practitioner.

The steps taken to verify a person's concentrations of alcohol or testable drugs following an initial positive test must be undertaken in a timely fashion as appropriate in the individual circumstances of the case.

• a confirmatory test will be undertaken when an initial test reveals a positive test result for alcohol or any testable drug;

• confirmatory test results are to be analysed by a MRO or other appropriately qualified medical practitioner engaged by the DAMP Organisation for the purpose of verifying the results of any confirmatory test undertaken;

• personnel who perform or are available to perform the activities described in paragraph 2.4 above are encouraged to bring to the attention of their employer their use of prescribed drugs or over-the-counter drugs that may affect the performance of their duties (ie self-referral);

• personnel who perform or are available to perform the activities described in paragraph 2.4 above are educated and made aware of the risks of drug and alcohol use in the civil aviation industry;

• there will be regular reporting to CASA of all results of initial and confirmatory testing undertaken (whether the results are negative or positive), edited to remove personal information, and such reporting will be in a format provided by CASA; and

3 "Serious incident" is defined in s.30DL of the Act as follows: "serious incident means an occurrence that is associated with the operation or maintenance of an aircraft where either or both of the following applies: (a) the occurrence gives rise to a danger of death or serious harm to a person; (b) the occurrence gives rise to a danger of serious damage to an aircraft or other property (whether or not property on the aircraft)."





• without limiting the disciplinary action that can be undertaken by a DAMP Organisation in appropriate circumstances, a DAMP Organisation may rehabilitate personnel or refer them to a substance abuse professional where clinically indicated (recommended by a MRO or an appropriately qualified medical practitioner) or as appropriate (e.g. self-referral), and the provision of other relevant support.

2.12 Auditing by CASA 2.12.1 CASA will conduct audits of DAMP Organisations to confirm that:

• DAMPs comply with the requirements set out in the Regulations; • DAMPs are being implemented; and • DAMP Organisations that have an ongoing relationship with contractors who

perform any of the activities described in paragraph 2.4 above comply with paragraph 2.11 above.

2.13 Privacy issues 2.13.1 CASA will handle information that it collects under the drug and alcohol programme in accordance with the Privacy Act 1988 ("Privacy Act"), including the information privacy principles. 2.13.2 DAMP Organisations which fall within the definition of an "organisation" under s.6C of the Privacy Act must comply with the Privacy Act, including the handling of information in accordance with the National Privacy Principles. 2.13.3 DAMP Organisations which do not fall within the defined of an "organisation" under s.6C of the Privacy Act will also be required to handle information in accordance with the National Privacy Principles. 2.13.4 The Attorney-General's Department will be involved in the development of regulations to ensure that personal information collected by DAMP Organisations and CASA under the programme is adequately protected.

2.14 Implications for medical certificates and the demerit point system 2.14.1 If a person's confirmatory test results verify the presence of alcohol or testable drugs above the permitted levels, whether or not a person is guilty of an offence in relation to drug and alcohol use under the Regulations, and that person holds a medical certificate, then it is intended that CASA will be able to:

• use the information that it has in relation to a person's drug and alcohol test results and/or their conviction as the basis of a direction that an applicant for the issue of a medical certificate submit to a relevant examination and may provide information about the person's drug and alcohol test results and/or their conviction to the practitioner who will carry out the examination for use by the practitioner; and





• use the information that it has in relation to a person's drug and alcohol test results and/or their conviction as the basis of a direction that a holder of a medical certificate submit to a relevant examination and may provide information about the person's drug and alcohol test results and/or their conviction to the practitioner who will carry out the examination for use by the practitioner.

2.14.2 Demerit points are incurred when a person is convicted or found guilty of a strict liability offence under the Regulations, or on payment of the penalty prescribed in connection with the issuance of an infringement notice for such an offence.

3. Benefits and Impacts

3.1 Safety impact of the introduction of a Drug and Alcohol Testing Programme 3.1.1 CASA considers that the introduction of the proposal will enhance aviation safety. 3.1.2 CASA considers there would be a number of positive outcomes associated with the introduction of the proposal including a range of safety benefits:

• education and awareness for personnel undertaking safety-sensitive aviation activities in the aviation industry;

• deterring usage; • identifying personnel who have a problematic use of these substances and

removing them from safety-sensitive aviation activities; • monitoring personnel on return to duty from rehabilitation programmes; and • contributing to comprehensive, operator-managed, drug and alcohol policies.

3.3 Cost Benefit Analysis 3.3.1 A cost benefit analysis (CBA) was conducted on behalf of CASA, and found that the highest net benefit occurs when random testing extends to personnel undertaking safety-sensitive aviation activities in both commercial and private aviation. CASA will manage a random testing regime to test all people who are engaged in safety-sensitive aviation activities. 3.3.2 Some of the highlights from the CBA include:

• the proposal considered is likely to result in a net benefit to the community — although it should be noted that the personal cost to those tested (in terms of reduced civil liberties) has not been quantified;

• the highest net benefit occurs when random testing extends to personnel undertaking safety-sensitive aviation activities in both commercial and the general aviation sector.

3.3.3 The full report is available at: http://rrp.casa.gov.au/project/ss0601.asp.





3.4 Industry costs Developing a drug and alcohol management plan 3.4.1 While CASA will prepare comprehensive guidance material, it is expected that larger aviation employers will need to tailor or develop their own DAMP to their business circumstances. It is anticipated that these costs will be approximately:

• $100 000 for very large employers; • $75 000 for large employers; and • $100 for small employers as they are likely to develop a DAMP based on the

CASA guidance material. Education costs 3.4.2 The commercial sector will need to advise their employees of the introduction of their DAMPs and how it will operate at their business. It has been estimated that it will take one hour per employee to brief all relevant employees. CASA will also deliver an education and awareness campaign in the lead up to the introduction of the Drug and Alcohol Testing Programme. Drug and alcohol testing costs 3.4.3 DAMP drug and alcohol testing will be conducted for:

• pre-employment – the model assumes that all new starters in the commercial rehabilitation and sector will be tested;

• return-to-work testing – for those people whose test is confirmed as positive the model assumes that before they return to work they will be tested again;

• reasonable suspicion testing – the model incorporates the potential for the commercial sector to direct personnel to have a drug and alcohol test if there is reasonable suspicion that the employee is drug or alcohol affected; and

• post accident and serious incident testing.

4. Implementation and Review

4.1 Random Testing regime 4.1.1 CASA intends to contract an independent testing provider to conduct random testing on CASA’s behalf. It is planned to introduce random testing early in 2008.

4.2 Drug and Alcohol Management Plans 4.2.1 Those companies in the aviation industry undertaking safety-sensitive aviation activities will be required to have a drug and alcohol management plan. There will be a transition period of some months between when the regulations are made and the commencement date for DAMPs. This will allow DAMP Organisations sufficient time to consult with their employees and contractors and to develop their DAMPs. Approximately 67,000 people directly employed by these companies will be covered. DAMPs will be regulated and audited by CASA.





4.2.2 Following the making of the regulations, CASA will deliver a two stage, industry focused, education and awareness campaign in the months leading up to the introduction of random testing and the commencement date of drug and alcohol management plans. The first stage of education and awareness will focus on the 120,000 personnel who will come under the random testing regime. The second stage will deliver comprehensive guidance material and workshops for those organisations required to have a drug and alcohol management plan in place. 4.2.3 The monitoring and review of the new regulations will be initially conducted following the commencement of the regulations. Thereafter, monitoring and review will be conducted on an as–required basis and (within 2 years) as required by the Government.





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NPRM Response Form

DRUG AND ALCOHOL TESTING PROGRAMME FOR THE AVIATION INDUSTRY – PROPOSED CASR PART 99

Please complete your response by 27 August 2007 and return it by one of the following means: Online (preferred method*) casa.gov.au/newrules/ors

Fax 1800 653 897 (free call in Australia)

Post (no stamp required in Australia) CASA Regulatory Development Management Branch

Reply Paid 2005, Canberra ACT 2601, Australia

E-mail (use the response format in this NPRM) [email protected]

* A web-based online response form is offered as an alternative to the printed form in this NPRM. Online submission is the preferred method of sending your comments to CASA. If you are connected to the Internet, type casa.gov.au/newrules/ors into your web browser and follow the links for this NPRM.

Your Details Please provide relevant information and indicate your acceptance or otherwise of the proposal presented in this Notice of Proposed Rule Making by ticking [ ] the appropriate box below.

Your name: _____________________________________ ARN* (if known): __________

Organisation: ____________________________________ ARN* (if known): __________

Address: ____________________________________________________________________

_____________________________________________________________________________

* Aviation Reference Number, usually your CASA-issued licence or certificate number

Your telephone number (optional): …………………….… (to enable the Project Manager to contact you as necessary)

Do you consent to have your name published as a respondent to this NPRM? YES [ ] NO [ ]

Signed: ………………………………………….. Date: ………………….…

Your affiliation:

Private Industry Association

Airline Union Government Other

Your involvement in the aviation industry:

Consumer Pilot or Flight Crew

Ground or Support Staff

Product or Service Provider

Owner Operator

Your satisfaction with the adequacy of the existing legislation/requirement in relation to this topic (if any):

Very satisfied Satisfied No opinion Dissatisfied Very Dissatisfied





Key proposed changes CASA invites you to advise your acceptance, or otherwise, for the key proposed change contained in this NPRM by indicating your preference and commenting below:

Introduction by regulation of a Drug and Alcohol Testing Programme for personnel undertaking safety-sensitive aviation activities in the Australian aviation industry, with DAMPS to be managed by industry, and audited by CASA, and an independent random testing regime managed by CASA [ ] this is acceptable without any changes [ ] acceptable but would be improved if changes were made [ ] not acceptable but would be acceptable if changes were made [ ] not acceptable under any circumstances [ ] no opinion

Comments (including an estimate of additional costs/impacts if applicable): ___________________ ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________

That regulations should give effect to the proposal as described in section 2.4 of this NPRM - safety sensitive aviation activities [ ] this is acceptable without any changes [ ] acceptable but would be improved if changes were made [ ] not acceptable but would be acceptable if changes were made [ ] not acceptable under any circumstances [ ] no opinion


That regulations should give effect to the proposal as described in section 2.5 of this NPRM – testable drugs [ ] this is acceptable without any changes [ ] acceptable but would be improved if changes were made [ ] not acceptable but would be acceptable if changes were made [ ] not acceptable under any circumstances [ ] no opinion






That regulations should give effect to the proposal as described in section 2.6 of this NPRM – types of testing [ ] this is acceptable without any changes [ ] acceptable but would be improved if changes were made [ ] not acceptable but would be acceptable if changes were made [ ] not acceptable under any circumstances [ ] no opinion


That regulations should give effect to the proposal as described in section 2.7 of this NPRM - offences [ ] this is acceptable without any changes [ ] acceptable but would be improved if changes were made [ ] not acceptable but would be acceptable if changes were made [ ] not acceptable under any circumstances [ ] no opinion


That regulations should give effect to the proposal as described in section 2.8 of this NPRM – DAMP organisations [ ] this is acceptable without any changes [ ] acceptable but would be improved if changes were made [ ] not acceptable but would be acceptable if changes were made [ ] not acceptable under any circumstances [ ] no opinion






That regulations should give effect to the proposal as described in section 2.9 of this NPRM – establishing a DAMP [ ] this is acceptable without any changes [ ] acceptable but would be improved if changes were made [ ] not acceptable but would be acceptable if changes were made [ ] not acceptable under any circumstances [ ] no opinion


That regulations should give effect to the proposal as described in section 2.10 of this NPRM – DAMPs and contractors [ ] this is acceptable without any changes [ ] acceptable but would be improved if changes were made [ ] not acceptable but would be acceptable if changes were made [ ] not acceptable under any circumstances [ ] no opinion


That regulations should give effect to the proposal as described in section 2.11 of this NPRM – Minimum requirements for a DAMP [ ] this is acceptable without any changes [ ] acceptable but would be improved if changes were made [ ] not acceptable but would be acceptable if changes were made [ ] not acceptable under any circumstances [ ] no opinion






General and Specific Comments

Your Response to the Proposed Changes Where you consider coverage of the issues in this NPRM to be adequate, it is not necessary to respond in the space provided.

Any Additional Comments

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Your response ensures balanced consideration by CASA of the interests of the aviation industry and consumers.

Thank you





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Please forward your response to CASA by 27 August 2007

by one of the following means:

Online (preferred method) casa.gov.au/newrules/ors

Fax To: Regulatory Documentation Coordinator

1800 653 897 (free call) or international +612 6217 1691

Post (no stamp required in Australia) Reply Paid 2005

Regulatory Documentation Coordinator CASA’s Regulatory Development Management Branch

Canberra ACT 2601, Australia

E-mail (use the response format in this NPRM) [email protected]

Additional information is available from:

Mike Higgins, Drug and Alcohol Project Manager Post (no stamp required) Reply Paid 2005

Civil Aviation Safety Authority Canberra ACT 2601, Australia

E-mail [email protected]

Telephone: 02 6217 1242 or 131 757 (for the cost of a local call) International +61 2 6217 1242

Fax: 02 6217 1691 International +61 2 6217 1691

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