Drug and Alcohol Testing Program, 22649-22668 [E9-11289]
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[FR Doc. E9–11139 Filed 5–13–09; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 61, 63, 65, 91, 120, 121,
135
[Docket No. FAA–2008–0937; Amendment
Nos. 61–122, 63–37, 65–53, 91–307, 120–
0, 121–343, 135–117]
RIN 2120–AJ37
Drug and Alcohol Testing Program
AGENCY: Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule.
SUMMARY: This action amends the FAA’s
drug and alcohol regulations to place
them in a new part. The FAA is not
making any substantive changes to the
drug and alcohol regulations in this
rulemaking.
DATES:
Effective Date: July 13, 2009.
FOR FURTHER INFORMATION CONTACT:
Rafael Ramos, Office of Aerospace
Medicine, Drug Abatement Division,
AAM–800, Federal Aviation
Administration, 800 Independence
Avenue, SW., Washington, DC 20591;
telephone (202) 267–8442; facsimile
(202) 267–5200; e-mail
drugabatement@faa.gov.
Background
SUPPLEMENTARY INFORMATION:
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Authority for Rulemaking
The FAA’s authority to issue rules
regarding aviation safety is found in
Title 49 of United States Code. Subtitle
I, section 106, describes the authority of
the FAA Administrator. Subtitle VII,
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Aviation Programs, describes in more
detail the scope of the FAA’s authority.
These rules were originally
promulgated under the authority
described in Subtitle VII, Part A Chapter
451—Alcohol and Controlled
Substances Testing. Under section
45102, the FAA is charged with
prescribing regulations for air carriers
and foreign air carriers to establish and
to conduct preemployment, reasonable
suspicion, random, and post-accident
drug and alcohol testing. Some of these
rules, for example those dealing with
contract air traffic controllers, were
promulgated under the FAA’s general
rulemaking authority in 49 U.S.C.
44701(a)(5).
This rule is intended to reorganize the
requirements for drug and alcohol
testing into a single part. It also clarifies
the rules by, for example, replacing
references to appendices I and J with
references to part 120. It is expected that
this rule will simplify locating specific
provisions and changes to those
provisions for individuals and entities
required to comply with the FAA’s drug
and alcohol testing requirements. For
this reason, the changes are within the
scope of our authority and are a
reasonable and necessary exercise of our
statutory obligations.
The regulations governing FAArequired drug and alcohol testing
requirements currently are scattered
throughout Chapter I of Title 14, Code
of Federal Regulations. Requirements
for affected certificated airmen are
located in parts 61, 63, 65, and 67.
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Requirements for affected air carriers
and operators are located in parts 91,
121 and 135. Requirements for affected
air traffic control facilities and air traffic
controllers are included in subpart B of
part 65. Requirements for repair stations
certificated under part 145, and
contractors, who elect to have drug and
alcohol testing programs, are included
in appendices I and J of part 121.
At this time, the FAA is working on
a major revision of its drug and alcohol
testing regulations. Given the
complexity of that revision and the time
it will take to complete the rulemaking
process, the FAA has concluded that in
the interim it makes sense to pull the
existing regulations together in one
place. The FAA expects that doing so
will clarify the requirements for testing,
and simplify locating specific
provisions and changes to those
provisions for individuals and entities
that have drug and alcohol testing
programs.
This rulemaking will gather the
existing regulations into the new part,
remove them from their existing
locations, and provide cross references
in parts 91 and 135 to the new part.
Appendices I and J themselves set
forth the requirements for drug and
alcohol testing programs. Some
provisions in the current regulations in
appendices I and J are duplicative. For
example, the definitions in the
appendices are mostly verbatim
duplications. In addition, some of the
terms defined in the appendices I and
J are used in parts 121 and 135. Because
the drug and alcohol testing provisions
of 121 and 135 are being moved to new
part 120, it makes sense to move those
definitions up to subpart A of new part
120. We are therefore including all the
definitions in section 120.7 of subpart
A.
The FAA has begun moving away
from using the separate terms ‘‘antidrug
program’’ and ‘‘alcohol misuse
prevention program’’ in favor of ‘‘drug
testing program’’ and ‘‘alcohol testing
program’’ where appropriate. For
example, in this rulemaking, we use the
term ‘‘drug testing program’’ instead of
‘‘antidrug program’’ in § 120.101 and
‘‘alcohol testing program’’ instead of
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120.11 Refusal to submit to a drug or alcohol test by a part 61 certificate holder.
120.13 Refusal to submit to a drug or alcohol test by a part 63 certificate holder.
120.15 Refusal to submit to a drug or alcohol test by a part 65 certificate holder.
120.17 Use of prohibited drugs .............................................................
Subpart C 120.19 Misuse of alcohol .....................................................
Subpart C 120.21 Testing for alcohol ....................................................
120.31 Prohibited drugs .........................................................................
120.33 Use of prohibited drugs .............................................................
120.35 Testing for prohibited drugs .......................................................
Subpart D 120.37 Misuse of alcohol .....................................................
Subpart D 120.39 Testing for alcohol ....................................................
Part 120 subpart E .................................................................................
Part 120 subpart F .................................................................................
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The following table shows the
derivation of the regulations contained
in this final rule:
Refusal to submit to a drug or alcohol test.
63.12b
65.23
Refusal to submit to a drug or alcohol test.
Refusal to submit to a drug or alcohol test.
65.46 Use of prohibited drugs.
65.46a Misuse of alcohol.
65.46b Testing for alcohol.
121.429 and 135.353 Prohibited drugs.
121.455 and 135.249 Use of prohibited drugs.
121.457 and 135.251 Testing for prohibited drugs.
121.458 and 135.253 Misuse of alcohol.
121.459 and 135.255 Testing for alcohol.
Part 121 appendix I.
Part 121 appendix J.
commerce of the United States. In
developing U.S. standards, this Trade
Act requires agencies to consider
international standards and, where
appropriate, that they be the basis of
U.S. standards. Fourth, the Unfunded
Mandates Reform Act of 1995 (Pub. L.
104–4) requires agencies to prepare a
written assessment of the costs, benefits,
and other effects of proposed or final
rules that include a Federal mandate
likely to result in the expenditure by
State, local, or tribal governments, in the
aggregate, or by the private sector, of
$100 million or more annually (adjusted
for inflation with base year of 1995).
In conducting these analyses, FAA
has determined this rule—(1) Has
benefits which do justify its costs, is not
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Organization of New Part 120
Based in whole or in part on 14 CFR parts 61, 63, 65, 121, and 135
sections or paragraphs
Final Rule part 120 section or paragraph
Regulatory Evaluation, Regulatory
Flexibility Determination, International
Trade Analysis, and Unfunded
Mandates Assessment
Changes to Federal regulations must
undergo several economic analyses.
First, Executive Order 12866 directs that
each Federal agency shall propose or
adopt a regulation only upon a reasoned
determination that the benefits of the
intended regulation justify its costs.
Second, the Regulatory Flexibility Act
of 1980 (Pub. L. 96–354) requires
agencies to analyze the economic
impact of regulatory changes on small
entities. Third, the Trade Agreements
Act (Pub. L. 96–39) prohibits agencies
from setting standards that create
unnecessary obstacles to the foreign
‘‘alcohol misuse prevention program’’ in
§ 120.21(a). However, the Operations
Specifications A449 relating to drug and
alcohol testing is still titled ‘‘Antidrug
and Alcohol Misuse Prevention Program
Operations Specifications’’.
The language in the rules governing
the requirements for part 119 certificate
holders to conduct drug and alcohol
testing is mostly identical for both 121
and 135 operations. There is some
language that is unique to operations
under part 135. To limit duplication and
the potential for confusion related to
having multiple regulations dealing
with the same requirements, the FAA is
combining the drug and alcohol testing
requirements in current parts 121 and
135 rather than having separate part 120
subparts for 121 or 135. Provisions
unique to operations conducted under
part 135 are placed at the end of
relevant sections.
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a significant regulatory action as defined
in the Executive Order and is not
significant as defined in DOT’s
Regulatory Policies and Procedures; (2)
will not have a significant impact on a
substantial number of small entities; (3)
will have no effect on barriers to
international trade; and (4) does not
impose an unfunded mandate on state,
local, or tribal governments, or on the
private sector.
Department of Transportation Order
DOT 2100.5 prescribes policies and
procedures for simplification, analysis,
and review of regulations. If the
expected cost impact is so minimal that
a proposed or final rule does not
warrant a full evaluation, this order
permits that a statement to that effect
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and the basis for it be included in the
preamble if a full regulatory evaluation
of the cost and benefits is not prepared.
Such a determination has been made for
this final rule. The reasoning for this
determination follows: The FAA is not
making any substantive changes to the
drug and alcohol regulations in this
rulemaking. This action amends the
FAA’s drug and alcohol regulations to
place them in a new part. This rule
imposes no costs and provides no
accrual of benefits; and therefore, this
rule will have no economic impact.
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Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980
(RFA) 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
regulation.’’ To achieve that principle,
the RFA requires agencies to solicit and
consider flexible regulatory proposals
and 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 Act.
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 1980 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 rule imposes no costs and
provides no accrual of benefits; and
therefore, this rule will have no
economic impact. This action amends
the FAA’s drug and alcohol regulations
to place them in a new part. The FAA
is not making any substantive changes
to the drug and alcohol regulations in
this rulemaking. Therefore, as the
Acting FAA Administrator, I certify that
this rule will not have a significant
economic impact on a substantial
number of small entities.
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International Trade Analysis
The Trade Agreements Act of 1979
(Pub. L. 96–39), as amended by the
Uruguay Round Agreements Act (Pub.
L. 103–465), prohibits Federal agencies
from establishing standards or engaging
in related activities that create
unnecessary obstacles to the foreign
commerce of the United States.
Pursuant to these Acts, the
establishment of standards is not
considered an unnecessary obstacle to
the foreign commerce of the United
States, so long as the standard has a
legitimate domestic objective, such as
the protection of safety, and does not
operate in a manner that excludes
imports that meet this objective. 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 will have only a
domestic impact and therefore will not
create unnecessary obstacles to the
foreign commerce of the United States.
Unfunded Mandates Determination
Title II of the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104–4)
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 an
expenditure of $100 million or more
(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 $136.1
million in lieu of $100 million.
This final rule does not contain such
a mandate. The requirements of Title II
do not apply.
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
rulemaking action qualifies for the
categorical exclusion identified in
paragraph 307(k) 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 (May 18, 2001). We
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22651
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.
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
Federal Government and the States, or
on the distribution of power and
responsibilities among the various
levels of government, and, therefore,
does not have federalism implications.
International Civil Aviation
Organization (ICAO) and Joint Aviation
Regulations
In keeping with U.S. obligations
under the Convention on International
Civil Aviation, it is FAA policy to
comply with ICAO Standards and
Recommended Practices to the
maximum extent practicable. The FAA
has determined that this final rule does
not conflict with any international
agreement of the United States.
Paperwork Reduction Act
Information collection requirements
associated with the final rule have been
approved previously by the Office of
Management and Budget (OMB) under
the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C.
3507(d)) and have been assigned OMB
Control Numbers 2105–0529, 2120–
0535, 2120–0685, 2120–0689.
Good Cause Justification for Adoption
Without Prior Notice
We find good cause exists under 5
U.S.C. 553(b)(B) and (d)(3) to implement
this final rule immediately without
prior notice and comment. This rule
merely reorganizes existing regulations
governing drug and alcohol testing into
their own part and makes clarifying
changes to the existing parts of the rules
necessitated by the reorganization.
Proprietary or Confidential Business
Information
Do not file in the docket information
that you consider to be proprietary or
confidential business information. Send
or deliver this information directly to
the person identified in the FOR FURTHER
INFORMATION CONTACT section of this
document. You must mark the
information that you consider
proprietary or confidential. If you send
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the information on a disk or CD–ROM,
mark the outside of the disk or CD–ROM
and also identify electronically within
the disk or CD–ROM the specific
information that is proprietary or
confidential.
Under § 11.35(b), when we are aware
of proprietary information filed with a
comment, we do not place it in the
docket. We hold it in a separate file to
which the public does not have access,
and place a note in the docket that we
have received it. If we receive a request
to examine or copy this information, we
treat it as any other request under the
Freedom of Information Act (5 U.S.C.
552). We process such a request under
the DOT procedures found in 49 CFR
part 7.
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Availability of Rulemaking Documents
You can get an electronic copy of
rulemaking documents using the
Internet by—
1. Searching the Federal eRulemaking
Portal (https://www.regulations.gov);
2. Visiting the FAA’s Regulations and
Policies Web page at https://
www.faa.gov/regulation_policies/; or
3. Accessing the Government Printing
Office’s Web page at https://
www.gpoaccess.gov/fr/.
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 (202) 267–9680. Make sure to
identify the amendment number or
docket number of this rulemaking.
Anyone is able to search the
electronic form of all comments
received into any of our dockets by the
name of the individual submitting the
comment (or signing the comment, if
submitted on behalf of an association,
business, labor union, etc.). You may
review DOT’s complete Privacy Act
statement in the Federal Register
published on April 11, 2000 (Volume
65, Number 70; Pages 19477–78) or you
may visit https://DocketsInfo.dot.gov.
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. If
you are a small entity and you have a
question regarding this document, you
may contact your local FAA official, or
the person listed under the FOR FURTHER
INFORMATION CONTACT heading at the
beginning of the preamble. You can find
out more about SBRFA on the Internet
at https://www.faa.gov/
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regulations_policies/rulemaking/
sbre_act/.
List of Subjects
14 CFR Part 61
Aircraft, Airmen, Alcohol abuse,
Aviation safety, Drug abuse, Recreation
and recreation areas, Reporting and
recordkeeping requirements, Security
measures, Teachers.
Authority: 49 U.S.C. 106(g), 40113, 44701–
44703, 44707, 44709–44711, 45102–45103,
45301–45302.
§ 61.14
[Removed and Reserved]
2. Section 61.14 is removed and
reserved.
■
PART 63—CERTIFICATION: FLIGHT
CREWMEMBERS OTHER THAN
PILOTS
14 CFR Part 63
Aircraft, Airmen, Alcohol abuse,
Aviation safety, Drug abuse, Navigation
(air), Reporting and recordkeeping
requirements, Security measures.
■
14 CFR Part 65
Air traffic controllers, Aircraft,
Airmen, Airports, Alcohol abuse,
Aviation safety, Drug abuse, Reporting
and recordkeeping requirements,
Security measures.
§ 63.12b
14 CFR Part 91
Afghanistan, Agriculture, Air traffic
control, Aircraft, Airmen, Airports,
Aviation safety, Canada, Cuba, Ethiopia,
Freight, Mexico, Noise control, Political
candidates, Reporting and
recordkeeping requirements,
Yugoslavia.
14 CFR Part 120
Alcoholism, Air carriers, Air traffic
control, Airmen, Alcohol abuse, Alcohol
testing, Aviation safety, Charter flights,
Commercial air tour operators, Contract
air traffic controllers, Drug abuse, Drug
testing, Operators, Reporting and
recordkeeping requirements, Safety,
Safety-sensitive, Transportation.
3. The authority citation for part 63
continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701–
44703, 44707, 44709–44711, 45102–45103,
45301–45302.
[Removed and Reserved]
4. Section 63.12b is removed and
reserved.
■
PART 65—CERTIFICATION: AIRMEN
OTHER THAN FLIGHT
CREWMEMBERS
5. The authority citation for part 65
continues to read as follows:
■
Authority: 49 U.S.C. 106(g). 40113, 44701–
44703, 44707, 44709–44711, 45102–45103,
45301–45302.
§ 65.23
[Removed and Reserved]
6. Section 65.23 is removed and
reserved.
■
§ 65.46
[Removed and Reserved]
7. Section 65.46 is removed and
reserved.
■
§ 65.46a
[Removed and Reserved]
8. Section 65.46a is removed and
reserved.
■
14 CFR Part 121
Air carriers, Aircraft, Airmen, Alcohol
abuse, Aviation safety, Charter flights,
Drug abuse, Drug testing, Reporting and
recordkeeping requirements, Safety,
Transportation.
§ 65.46b
14 CFR Part 135
Air taxis, Aircraft, Airmen, Alcohol
abuse, Aviation safety, Drug abuse, Drug
testing, Reporting and recordkeeping
requirements.
■
The Final Rule
In consideration of the foregoing, the
Federal Aviation Administration adds
part 120 and amends parts 61, 63, 65,
91, 121, and 135 of Title 14 of the Code
of Federal Regulations (14 CFR parts 61,
63, 65, 91, 121, 135), as follows:
■
PART 61—CERTIFICATION: PILOTS,
FLIGHT INSTRUCTORS, AND GROUND
INSTRUCTORS
1. The authority citation for part 61
continues to read as follows:
■
PO 00000
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Fmt 4700
Sfmt 4700
[Removed and Reserved]
9. Section 65.46b is removed and
reserved.
■
PART 91—GENERAL OPERATING AND
FLIGHT RULES
10. The authority citation for part 91
continues to read as follows:
Authority: 49 U.S.C. 106(g), 1155, 40103,
40113, 40120, 44101, 44111, 44701, 44704,
44709, 44711, 44712, 44715, 44716, 44717,
44722, 46306, 46315, 46316, 46504, 46506–
46507, 47122, 47508, 47528–47531, articles
12 and 29 of the Convention on International
Civil Aviation (61 Stat. 1180).
11. Section 91.147(d) is revised to
read as follows:
■
§ 91.147 Passenger-carrying flights for
compensation or hire.
*
*
*
*
*
(d) The Operator must register and
implement its drug and alcohol testing
programs in accordance with part 120 of
this chapter.
*
*
*
*
*
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12. Section 91.1047(c)(3) is revised to
read as follows:
■
§ 91.1047 Drug and alcohol misuse
education program.
*
*
*
*
*
(c) * * *
(3) The degree to which the program
manager’s company testing program is
comparable to the federally mandated
drug and alcohol testing program
required under part 120 of this chapter
regarding the information in paragraphs
(c)(1) and (c)(2) of this section.
*
*
*
*
*
■ 13. Add Part 120 to read as follows:
PART 120—DRUG AND ALCOHOL
TESTING PROGRAM
Subpart A—General
Sec.
120.1 Applicability.
120.3 Purpose.
120.5 Procedures.
120.7 Definitions.
Subpart B—Individuals Certificated Under
Parts 61, 63, and 65
120.11 Refusal to submit to a drug or
alcohol test by a Part 61 certificate
holder.
120.13 Refusal to submit to a drug or
alcohol test by a Part 63 certificate
holder.
120.15 Refusal to submit to a drug or
alcohol test by a Part 65 certificate
holder.
Subpart C—Air Traffic Controllers
120.17 Use of prohibited drugs.
120.19 Misuse of alcohol.
120.21 Testing for alcohol.
Subpart D—Part 119 Certificate Holders
Authorized To Conduct Operations Under
Part 121 or Part 135 or Operators Under
§ 91.147 of This Chapter and SafetySensitive Employees
120.31 Prohibited drugs.
120.33 Use of prohibited drugs.
120.35 Testing for prohibited drugs.
120.37 Misuse of alcohol.
120.39 Testing for alcohol.
Subpart E—Drug Testing Program
Requirements
Scope.
120.103
General.
120.105
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120.101
Employees who must be tested.
18:53 May 13, 2009
Subpart F—Alcohol Testing Program
Requirements
120.201 Scope.
120.203 General.
120.205 Preemption of State and local laws.
120.207 Other requirements imposed by
employers.
120.209 Requirement for notice.
120.211 Applicable Federal regulations.
120.213 Falsification.
120.215 Covered employees.
120.217 Tests required.
120.219 Handling of test results, record
retention, and confidentiality.
120.221 Consequences for employees
engaging in alcohol-related conduct.
120.223 Alcohol misuse information,
training, and substance abuse
professionals.
120.225 How to implement an alcohol
testing program.
120.227 Employees located outside the U.S.
Authority: 49 U.S.C. 106(g), 40101–40103,
40113, 40120, 41706, 41721, 44106, 44701,
44702, 44703, 44709, 44710, 44711, 45101–
45105, 46105, 46306.
Subpart A—General
§ 120.1
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Applicability.
This part applies to the following
persons:
(a) All air carriers and operators
certificated under part 119 of this
chapter authorized to conduct
operations under part 121 or part 135 of
this chapter, all air traffic control
facilities not operated by the FAA or by
or under contract to the U.S. military;
and all operators as defined in 14 CFR
91.147.
(b) All individuals who perform,
either directly or by contract, a safetysensitive function listed in subpart E or
subpart F of this part.
(c) All part 145 certificate holders
who perform safety-sensitive functions
and elect to implement a drug and
alcohol testing program under this part.
(d) All contractors who elect to
implement a drug and alcohol testing
program under this part.
§ 120.3
120.107 Substances for which testing
must be conducted.
120.109 Types of drug testing required.
120.111 Administrative and other matters.
120.113 Medical Review Officer, Substance
Abuse Professional, and employer
responsibilities.
120.115 Employee Assistance Program
(EAP).
120.117 Implementing a drug testing
program.
VerDate Nov<24>2008
120.119 Annual reports.
120.121 Preemption.
120.123 Drug testing outside of the territory
of the United States.
120.125 Waivers from 49 CFR 40.21.
Purpose.
The purpose of this part is to establish
a program designed to help prevent
accidents and injuries resulting from the
use of prohibited drugs or the misuse of
alcohol by employees who perform
safety-sensitive functions in aviation.
§ 120.5
Procedures.
Each employer having a drug and
alcohol testing program under this part
must ensure that all drug and alcohol
testing conducted pursuant to this part
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complies with the procedures set forth
in 49 CFR part 40.
§ 120.7
Definitions.
For the purposes of this part, the
following definitions apply:
(a) Accident means an occurrence
associated with the operation of an
aircraft which takes place between the
time any individual boards the aircraft
with the intention of flight and all such
individuals have disembarked, and in
which any individual suffers death or
serious injury, or in which the aircraft
receives substantial damage.
(b) Alcohol means the intoxicating
agent in beverage alcohol, ethyl alcohol,
or other low molecular weight alcohols,
including methyl or isopropyl alcohol.
(c) Alcohol concentration (or content)
means the alcohol in a volume of breath
expressed in terms of grams of alcohol
per 210 liters of breath as indicated by
an evidential breath test under subpart
F of this part.
(d) Alcohol use means the
consumption of any beverage, mixture,
or preparation, including any
medication, containing alcohol.
(e) Contractor is an individual or
company that performs a safetysensitive function by contract for an
employer or another contractor.
(f) Covered employee means an
individual who performs, either directly
or by contract, a safety-sensitive
function listed in §§ 120.105 and
120.215 for an employer (as defined in
paragraph (i) of this section). For
purposes of pre-employment testing
only, the term ‘‘covered employee’’
includes an individual applying to
perform a safety-sensitive function.
(g) DOT agency means an agency (or
‘‘operating administration’’) of the
United States Department of
Transportation administering
regulations requiring drug testing (14
CFR part 61 et al.; 46 CFR part 16; 49
CFR parts 199, 219, and 382) in
accordance with 49 CFR part 40.
(h) Employee is an individual who is
hired, either directly or by contract, to
perform a safety-sensitive function for
an employer, as defined in paragraph (i)
of this section. An employee is also an
individual who transfers into a position
to perform a safety-sensitive function for
an employer.
(i) Employer is a part 119 certificate
holder with authority to operate under
parts 121 and/or 135 of this chapter, an
operator as defined in § 91.147 of this
chapter, or an air traffic control facility
not operated by the FAA or by or under
contract to the U.S. Military. An
employer may use a contract employee
who is not included under that
employer’s FAA-mandated drug testing
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program to perform a safety-sensitive
function only if that contract employee
is included under the contractor’s FAAmandated drug testing program and is
performing a safety-sensitive function
on behalf of that contractor (i.e., within
the scope of employment with the
contractor.)
(j) Hire means retaining an individual
for a safety-sensitive function as a paid
employee, as a volunteer, or through
barter or other form of compensation.
(k) Performing (a safety-sensitive
function): an employee is considered to
be performing a safety-sensitive
function during any period in which he
or she is actually performing, ready to
perform, or immediately available to
perform such function.
(l) Positive rate for random drug
testing means the number of verified
positive results for random drug tests
conducted under subpart E of this part,
plus the number of refusals of random
drug tests required by subpart E of this
part, divided by the total number of
random drug test results (i.e., positives,
negatives, and refusals) under subpart E
of this part.
(m) Prohibited drug means marijuana,
cocaine, opiates, phencyclidine (PCP),
and amphetamines, as specified in 49
CFR 40.85.
(n) Refusal to submit to alcohol test
means that a covered employee has
engaged in conduct including but not
limited to that described in 49 CFR
40.261, or has failed to remain readily
available for post-accident testing as
required by subpart F of this part.
(o) Refusal to submit to drug test
means that an employee engages in
conduct including but not limited to
that described in 49 CFR 40.191.
(p) Safety-sensitive function means a
function listed in §§ 120.105 and
120.215.
(q) Verified negative drug test result
means a drug test result from an HHScertified laboratory that has undergone
review by an MRO and has been
determined by the MRO to be a negative
result.
(r) Verified positive drug test result
means a drug test result from an HHScertified laboratory that has undergone
review by an MRO and has been
determined by the MRO to be a positive
result.
(s) Violation rate for random alcohol
testing means the number of 0.04, and
above, random alcohol confirmation test
results conducted under subpart F of
this part, plus the number of refusals of
random alcohol tests required by
subpart F of this part, divided by the
total number of random alcohol
screening tests (including refusals)
conducted under subpart F of this part.
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Subpart B—Individuals Certificated
Under Parts 61, 63, and 65
§ 120.11 Refusal to submit to a drug or
alcohol test by a Part 61 certificate holder.
(a) This section applies to all
individuals who hold a certificate under
part 61 of this chapter and who are
subject to drug and alcohol testing
under this part.
(b) Refusal by the holder of a
certificate issued under part 61 of this
chapter to take a drug or alcohol test
required under the provisions of this
part is grounds for:
(1) Denial of an application for any
certificate, rating, or authorization
issued under part 61 of this chapter for
a period of up to 1 year after the date
of such refusal; and
(2) Suspension or revocation of any
certificate, rating, or authorization
issued under part 61 of this chapter.
§ 120.13 Refusal to submit to a drug or
alcohol test by a Part 63 certificate holder.
(a) This section applies to all
individuals who hold a certificate under
part 63 of this chapter and who are
subject to drug and alcohol testing
under this part.
(b) Refusal by the holder of a
certificate issued under part 63 of this
chapter to take a drug or alcohol test
required under the provisions of this
part is grounds for:
(1) Denial of an application for any
certificate, rating, or authorization
issued under part 63 of this chapter for
a period of up to 1 year after the date
of such refusal; and
(2) Suspension or revocation of any
certificate, rating, or authorization
issued under part 63 of this chapter.
§ 120.15 Refusal to submit to a drug or
alcohol test by a Part 65 certificate holder.
(a) This section applies to all
individuals who hold a certificate under
part 65 of this chapter and who are
subject to drug and alcohol testing
under this part.
(b) Refusal by the holder of a
certificate issued under part 65 of this
chapter to take a drug or alcohol test
required under the provisions of this
part is grounds for:
(1) Denial of an application for any
certificate, rating, or authorization
issued under part 65 of this chapter for
a period of up to 1 year after the date
of such refusal; and
(2) Suspension or revocation of any
certificate, rating, or authorization
issued under part 65 of this chapter.
Subpart C—Air Traffic Controllers
§ 120.17
Use of prohibited drugs.
(a) Each employer shall provide each
employee performing a function listed
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in subpart E of this part, and his or her
supervisor, with the training specified
in that subpart. No employer may use
any contractor to perform an air traffic
control function unless that contractor
provides each of its employees
performing that function for the
employer, and his or her supervisor,
with the training specified in subpart E
of this part.
(b) No employer may knowingly use
any individual to perform, nor may any
individual perform for an employer,
either directly or by contract, any air
traffic control function while that
individual has a prohibited drug, as
defined in subpart E of this part, in his
or her system.
(c) No employer shall knowingly use
any individual to perform, nor may any
individual perform for an employer,
either directly or by contract, any air
traffic control function if the individual
has a verified positive drug test result
on, or has refused to submit to, a drug
test required by subpart E of this part
and the individual has not met the
requirements of subpart E of this part for
returning to the performance of safetysensitive duties.
(d) Each employer shall test each of
its employees who perform any air
traffic control function in accordance
with subpart E of this part. No employer
may use any contractor to perform any
air traffic control function unless that
contractor tests each employee
performing such a function for the
employer in accordance with subpart E
of this part.
§ 120.19
Misuse of alcohol.
(a) This section applies to covered
employees who perform air traffic
control duties directly or by contract for
an employer that is an air traffic control
facility not operated by the FAA or the
US military.
(b) Alcohol concentration. No covered
employee shall report for duty or remain
on duty requiring the performance of
safety-sensitive functions while having
an alcohol concentration of 0.04 or
greater. No employer having actual
knowledge that an employee has an
alcohol concentration of 0.04 or greater
shall permit the employee to perform or
continue to perform safety-sensitive
functions.
(c) On-duty use. No covered employee
shall use alcohol while performing
safety-sensitive functions. No employer
having actual knowledge that a covered
employee is using alcohol while
performing safety-sensitive functions
shall permit the employee to perform or
continue to perform safety-sensitive
functions.
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(d) Pre-duty use. No covered
employee shall perform air traffic
control duties within 8 hours after using
alcohol. No employer having actual
knowledge that such an employee has
used alcohol within 8 hours shall
permit the employee to perform or
continue to perform air traffic control
duties.
(e) Use following an accident. No
covered employee who has actual
knowledge of an accident involving an
aircraft for which he or she performed
a safety-sensitive function at or near the
time of the accident shall use alcohol for
8 hours following the accident, unless
he or she has been given a post-accident
test under subpart F of this part or the
employer has determined that the
employee’s performance could not have
contributed to the accident.
(f) Refusal to submit to a required
alcohol test. A covered employee may
not refuse to submit to any alcohol test
required under subpart F of this part.
An employer may not permit an
employee who refuses to submit to such
a test to perform or continue to perform
safety-sensitive functions.
§ 120.21
Testing for alcohol.
(a) Each air traffic control facility not
operated by the FAA or the U.S. military
must establish an alcohol testing
program in accordance with the
provisions of subpart F of this part.
(b) No employer shall use any
individual who meets the definition of
covered employee in subpart A of this
part to perform a safety-sensitive
function listed in subpart F of this part
unless that individual is subject to
testing for alcohol misuse in accordance
with the provisions of that subpart.
Subpart D—Part 119 Certificate
Holders Authorized To Conduct
Operations under Part 121 or Part 135
or Operators Under § 91.147 of This
Chapter and Safety-Sensitive
Employees
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§ 120.31
Prohibited drugs.
(a) Each certificate holder or operator
shall provide each employee performing
a function listed in subpart E of this
part, and his or her supervisor, with the
training specified in that subpart.
(b) No certificate holder or operator
may use any contractor to perform a
function listed in subpart E of this part
unless that contractor provides each of
its employees performing that function
for the certificate holder or operator,
and his or her supervisor, with the
training specified in that subpart.
§ 120.33
Use of prohibited drugs.
(a) This section applies to individuals
who perform a function listed in subpart
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18:53 May 13, 2009
Jkt 217001
E of this part for a certificate holder or
operator. For the purpose of this section,
an individual who performs such a
function pursuant to a contract with the
certificate holder or the operator is
considered to be performing that
function for the certificate holder or the
operator.
(b) No certificate holder or operator
may knowingly use any individual to
perform, nor may any individual
perform for a certificate holder or an
operator, either directly or by contract,
any function listed in subpart E of this
part while that individual has a
prohibited drug, as defined in that
subpart, in his or her system.
(c) No certificate holder or operator
shall knowingly use any individual to
perform, nor shall any individual
perform for a certificate holder or
operator, either directly or by contract,
any safety-sensitive function if that
individual has a verified positive drug
test result on, or has refused to submit
to, a drug test required by subpart E of
this part and the individual has not met
the requirements of that subpart for
returning to the performance of safetysensitive duties.
§ 120.35
Testing for prohibited drugs.
(a) Each certificate holder or operator
shall test each of its employees who
perform a function listed in subpart E of
this part in accordance with that
subpart.
(b) Except as provided in paragraph
(c) of this section, no certificate holder
or operator may use any contractor to
perform a function listed in subpart E of
this part unless that contractor tests
each employee performing such a
function for the certificate holder or
operator in accordance with that
subpart.
(c) If a certificate holder conducts an
on-demand operation into an airport at
which no maintenance providers are
available that are subject to the
requirements of subpart E of this part
and emergency maintenance is required,
the certificate holder may use
individuals not meeting the
requirements of paragraph (b) of this
section to provide such emergency
maintenance under both of the
following conditions:
(1) The certificate holder must give
written notification of the emergency
maintenance to the Drug Abatement
Program Division, AAM–800, 800
Independence Avenue, SW.,
Washington, DC 20591, within 10 days
after being provided same in accordance
with this paragraph. A certificate holder
must retain copies of all such written
notifications for two years.
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(2) The aircraft must be reinspected
by maintenance personnel who meet the
requirements of paragraph (b) of this
section when the aircraft is next at an
airport where such maintenance
personnel are available.
(d) For purposes of this section,
emergency maintenance means
maintenance that—
(1) Is not scheduled and
(2) Is made necessary by an aircraft
condition not discovered prior to the
departure for that location.
§ 120.37
Misuse of alcohol.
(a) General. This section applies to
covered employees who perform a
function listed in subpart F of this part
for a certificate holder. For the purpose
of this section, an individual who meets
the definition of covered employee in
subpart F of this part is considered to be
performing the function for the
certificate holder.
(b) Alcohol concentration. No covered
employee shall report for duty or remain
on duty requiring the performance of
safety-sensitive functions while having
an alcohol concentration of 0.04 or
greater. No certificate holder having
actual knowledge that an employee has
an alcohol concentration of 0.04 or
greater shall permit the employee to
perform or continue to perform safetysensitive functions.
(c) On-duty use. No covered employee
shall use alcohol while performing
safety-sensitive functions. No certificate
holder having actual knowledge that a
covered employee is using alcohol
while performing safety-sensitive
functions shall permit the employee to
perform or continue to perform safetysensitive functions.
(d) Pre-duty use. (1) No covered
employee shall perform flight
crewmember or flight attendant duties
within 8 hours after using alcohol. No
certificate holder having actual
knowledge that such an employee has
used alcohol within 8 hours shall
permit the employee to perform or
continue to perform the specified
duties.
(2) No covered employee shall
perform safety-sensitive duties other
than those specified in paragraph (d)(1)
of this section within 4 hours after using
alcohol. No certificate holder having
actual knowledge that such an employee
has used alcohol within 4 hours shall
permit the employee to perform or to
continue to perform safety-sensitive
functions.
(e) Use following an accident. No
covered employee who has actual
knowledge of an accident involving an
aircraft for which he or she performed
a safety-sensitive function at or near the
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time of the accident shall use alcohol for
8 hours following the accident, unless
he or she has been given a post-accident
test under subpart F of this part, or the
employer has determined that the
employee’s performance could not have
contributed to the accident.
(f) Refusal to submit to a required
alcohol test. A covered employee must
not refuse to submit to any alcohol test
required under subpart F of this part. A
certificate holder must not permit an
employee who refuses to submit to such
a test to perform or continue to perform
safety-sensitive functions.
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§ 120.39
Testing for alcohol.
(a) Each certificate holder must
establish an alcohol testing program in
accordance with the provisions of
subpart F of this part.
(b) Except as provided in paragraph
(c) of this section, no certificate holder
or operator may use any individual who
meets the definition of covered
employee in subpart A of this part to
perform a safety-sensitive function
listed in that subpart F of this part
unless that individual is subject to
testing for alcohol misuse in accordance
with the provisions of that subpart.
(c) If a certificate holder conducts an
on-demand operation into an airport at
which no maintenance providers are
available that are subject to the
requirements of subpart F of this part
and emergency maintenance is required,
the certificate holder may use
individuals not meeting the
requirements of paragraph (b) of this
section to provide such emergency
maintenance under both of the
following conditions:
(1) The certificate holder must give
written notification of the emergency
maintenance to the Drug Abatement
Program Division, AAM–800, 800
Independence Avenue, SW.,
Washington, DC 20591, within 10 days
after being provided same in accordance
with this paragraph. A certificate holder
must retain copies of all such written
notifications for two years.
(2) The aircraft must be reinspected
by maintenance personnel who meet the
requirements of paragraph (b) of this
section when the aircraft is next at an
airport where such maintenance
personnel are available.
(d) For purposes of this section,
emergency maintenance means
maintenance that—
(1) Is not scheduled and
(2) Is made necessary by an aircraft
condition not discovered prior to the
departure for that location.
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Subpart E—Drug Testing Program
Requirements
§ 120.101
Scope.
This subpart contains the standards
and components that must be included
in a drug testing program required by
this part.
§ 120.103
General.
(a) Purpose. The purpose of this
subpart is to establish a program
designed to help prevent accidents and
injuries resulting from the use of
prohibited drugs by employees who
perform safety-sensitive functions.
(b) DOT procedures. (1) Each
employer shall ensure that drug testing
programs conducted pursuant to 14 CFR
parts 65, 91, 121, and 135 comply with
the requirements of this subpart and the
‘‘Procedures for Transportation
Workplace Drug Testing Programs’’
published by the Department of
Transportation (DOT) (49 CFR part 40).
(2) An employer may not use or
contract with any drug testing
laboratory that is not certified by the
Department of Health and Human
Services (HHS) under the National
Laboratory Certification Program.
(c) Employer responsibility. As an
employer, you are responsible for all
actions of your officials, representatives,
and service agents in carrying out the
requirements of this subpart and 49 CFR
part 40.
(d) Applicable Federal Regulations.
The following applicable regulations
appear in 49 CFR or 14 CFR:
(1) 49 CFR Part 40—Procedures for
Transportation Workplace Drug Testing
Programs
(2) 14 CFR:
(i) § 67.107—First-Class Airman
Medical Certificate, Mental.
(ii) § 67.207—Second-Class Airman
Medical Certificate, Mental.
(iii) § 67.307—Third-Class Airman
Medical Certificate, Mental.
(iv) § 91.147—Passenger carrying
flight for compensation or hire.
(e) Falsification. No individual may
make, or cause to be made, any of the
following:
(1) Any fraudulent or intentionally
false statement in any application of a
drug testing program.
(2) Any fraudulent or intentionally
false entry in any record or report that
is made, kept, or used to show
compliance with this part.
(3) Any reproduction or alteration, for
fraudulent purposes, of any report or
record required to be kept by this part.
§ 120.105
Employees who must be tested.
Each employee, including any
assistant, helper, or individual in a
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training status, who performs a safetysensitive function listed in this section
directly or by contract (including by
subcontract at any tier) for an employer
as defined in this subpart must be
subject to drug testing under a drug
testing program implemented in
accordance with this subpart. This
includes full-time, part-time, temporary,
and intermittent employees regardless
of the degree of supervision. The safetysensitive functions are:
(a) Flight crewmember duties.
(b) Flight attendant duties.
(c) Flight instruction duties.
(d) Aircraft dispatcher duties.
(e) Aircraft maintenance and
preventive maintenance duties.
(f) Ground security coordinator
duties.
(g) Aviation screening duties.
(h) Air traffic control duties.
§ 120.107 Substances for which testing
must be conducted.
Each employer shall test each
employee who performs a safetysensitive function for evidence of
marijuana, cocaine, opiates,
phencyclidine (PCP), and
amphetamines during each test required
by § 120.109.
§ 120.109
Types of drug testing required.
Each employer shall conduct the
types of testing described in this section
in accordance with the procedures set
forth in this subpart and the DOT
‘‘Procedures for Transportation
Workplace Drug Testing Programs’’ (49
CFR part 40).
(a) Pre-employment drug testing. (1)
No employer may hire any individual
for a safety-sensitive function listed in
§ 120.105 unless the employer first
conducts a pre-employment test and
receives a verified negative drug test
result for that individual.
(2) No employer may allow an
individual to transfer from a nonsafetysensitive to a safety-sensitive function
unless the employer first conducts a
pre-employment test and receives a
verified negative drug test result for the
individual.
(3) Employers must conduct another
pre-employment test and receive a
verified negative drug test result before
hiring or transferring an individual into
a safety-sensitive function if more than
180 days elapse between conducting the
pre-employment test required by
paragraphs (a)(1) or (2) of this section
and hiring or transferring the individual
into a safety-sensitive function,
resulting in that individual being
brought under an FAA drug testing
program.
(4) If the following criteria are met, an
employer is permitted to conduct a pre-
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employment test, and if such a test is
conducted, the employer must receive a
negative test result before putting the
individual into a safety-sensitive
function:
(i) The individual previously
performed a safety-sensitive function for
the employer and the employer is not
required to pre-employment test the
individual under paragraphs (a)(1) or (2)
of this section before putting the
individual to work in a safety-sensitive
function;
(ii) The employer removed the
individual from the employer’s random
testing program conducted under this
subpart for reasons other than a verified
positive test result on an FAA-mandated
drug test or a refusal to submit to such
testing; and
(iii) The individual will be returning
to the performance of a safety-sensitive
function.
(5) Before hiring or transferring an
individual to a safety-sensitive function,
the employer must advise each
individual that the individual will be
required to undergo pre-employment
testing in accordance with this subpart,
to determine the presence of marijuana,
cocaine, opiates, phencyclidine (PCP),
and amphetamines, or a metabolite of
those drugs in the individual’s system.
The employer shall provide this same
notification to each individual required
by the employer to undergo preemployment testing under paragraph
(a)(4) of this section.
(b) Random drug testing. (1) Except as
provided in paragraphs (b)(2) through
(b)(4) of this section, the minimum
annual percentage rate for random drug
testing shall be 50 percent of covered
employees.
(2) The Administrator’s decision to
increase or decrease the minimum
annual percentage rate for random drug
testing is based on the reported positive
rate for the entire industry. All
information used for this determination
is drawn from the statistical reports
required by § 120.119. In order to ensure
reliability of the data, the Administrator
considers the quality and completeness
of the reported data, may obtain
additional information or reports from
employers, and may make appropriate
modifications in calculating the
industry positive rate. Each year, the
Administrator will publish in the
Federal Register the minimum annual
percentage rate for random drug testing
of covered employees. The new
minimum annual percentage rate for
random drug testing will be applicable
starting January 1 of the calendar year
following publication.
(3) When the minimum annual
percentage rate for random drug testing
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is 50 percent, the Administrator may
lower this rate to 25 percent of all
covered employees if the Administrator
determines that the data received under
the reporting requirements of this
subpart for two consecutive calendar
years indicate that the reported positive
rate is less than 1.0 percent.
(4) When the minimum annual
percentage rate for random drug testing
is 25 percent, and the data received
under the reporting requirements of this
subpart for any calendar year indicate
that the reported positive rate is equal
to or greater than 1.0 percent, the
Administrator will increase the
minimum annual percentage rate for
random drug testing to 50 percent of all
covered employees.
(5) The selection of employees for
random drug testing shall be made by a
scientifically valid method, such as a
random-number table or a computerbased random number generator that is
matched with employees’ Social
Security numbers, payroll identification
numbers, or other comparable
identifying numbers. Under the
selection process used, each covered
employee shall have an equal chance of
being tested each time selections are
made.
(6) As an employer, you must select
and test a percentage of employees at
least equal to the minimum annual
percentage rate each year.
(i) As an employer, to determine
whether you have met the minimum
annual percentage rate, you must divide
the number of random testing results for
safety-sensitive employees by the
average number of safety-sensitive
employees eligible for random testing.
(A) To calculate whether you have
met the annual minimum percentage
rate, count all random positives, random
negatives, and random refusals as your
‘‘random testing results.’’
(B) To calculate the average number of
safety-sensitive employees eligible for
random testing throughout the year, add
the total number of safety-sensitive
employees eligible for testing during
each random testing period for the year
and divide that total by the number of
random testing periods. Only safetysensitive employees are to be in an
employer’s random testing pool, and all
safety-sensitive employees must be in
the random pool. If you are an employer
conducting random testing more often
than once per month (e.g., you select
daily, weekly, bi-weekly) you do not
need to compute this total number of
safety-sensitive employees more than on
a once per month basis.
(ii) As an employer, you may use a
service agent to perform random
selections for you, and your safety-
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22657
sensitive employees may be part of a
larger random testing pool of safetysensitive employees. However, you
must ensure that the service agent you
use is testing at the appropriate
percentage established for your industry
and that only safety-sensitive employees
are in the random testing pool. For
example:
(A) If the service agent has your
employees in a random testing pool for
your company alone, you must ensure
that the testing is conducted at least at
the minimum annual percentage rate
under this part.
(B) If the service agent has your
employees in a random testing pool
combined with other FAA-regulated
companies, you must ensure that the
testing is conducted at least at the
minimum annual percentage rate under
this part.
(C) If the service agent has your
employees in a random testing pool
combined with other DOT-regulated
companies, you must ensure that the
testing is conducted at least at the
highest rate required for any DOTregulated company in the pool.
(7) Each employer shall ensure that
random drug tests conducted under this
subpart are unannounced and that the
dates for administering random tests are
spread reasonably throughout the
calendar year.
(8) Each employer shall require that
each safety-sensitive employee who is
notified of selection for random drug
testing proceeds to the collection site
immediately; provided, however, that if
the employee is performing a safetysensitive function at the time of the
notification, the employer shall instead
ensure that the employee ceases to
perform the safety-sensitive function
and proceeds to the collection site as
soon as possible.
(9) If a given covered employee is
subject to random drug testing under the
drug testing rules of more than one DOT
agency, the employee shall be subject to
random drug testing at the percentage
rate established for the calendar year by
the DOT agency regulating more than 50
percent of the employee’s function.
(10) If an employer is required to
conduct random drug testing under the
drug testing rules of more than one DOT
agency, the employer may—
(i) Establish separate pools for random
selection, with each pool containing the
covered employees who are subject to
testing at the same required rate; or
(ii) Randomly select covered
employees for testing at the highest
percentage rate established for the
calendar year by any DOT agency to
which the employer is subject.
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(11) An employer required to conduct
random drug testing under the anti-drug
rules of more than one DOT agency
shall provide each such agency access to
the employer’s records of random drug
testing, as determined to be necessary
by the agency to ensure the employer’s
compliance with the rule.
(c) Post-accident drug testing. Each
employer shall test each employee who
performs a safety-sensitive function for
the presence of marijuana, cocaine,
opiates, phencyclidine (PCP), and
amphetamines, or a metabolite of those
drugs in the employee’s system if that
employee’s performance either
contributed to an accident or can not be
completely discounted as a contributing
factor to the accident. The employee
shall be tested as soon as possible but
not later than 32 hours after the
accident. The decision not to administer
a test under this section must be based
on a determination, using the best
information available at the time of the
determination, that the employee’s
performance could not have contributed
to the accident. The employee shall
submit to post-accident testing under
this section.
(d) Drug testing based on reasonable
cause. Each employer must test each
employee who performs a safetysensitive function and who is
reasonably suspected of having used a
prohibited drug. The decision to test
must be based on a reasonable and
articulable belief that the employee is
using a prohibited drug on the basis of
specific contemporaneous physical,
behavioral, or performance indicators of
probable drug use. At least two of the
employee’s supervisors, one of whom is
trained in detection of the symptoms of
possible drug use, must substantiate and
concur in the decision to test an
employee who is reasonably suspected
of drug use; except that in the case of
an employer, other than a part 121
certificate holder, who employs 50 or
fewer employees who perform safetysensitive functions, one supervisor who
is trained in detection of symptoms of
possible drug use must substantiate the
decision to test an employee who is
reasonably suspected of drug use.
(e) Return to duty drug testing. Each
employer shall ensure that before an
individual is returned to duty to
perform a safety-sensitive function after
refusing to submit to a drug test
required by this subpart or receiving a
verified positive drug test result on a
test conducted under this subpart the
individual shall undergo a return-toduty drug test. No employer shall allow
an individual required to undergo
return-to-duty testing to perform a
safety-sensitive function unless the
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employer has received a verified
negative drug test result for the
individual. The test cannot occur until
after the SAP has determined that the
employee has successfully complied
with the prescribed education and/or
treatment.
(f) Follow-up drug testing. (1) Each
employer shall implement a reasonable
program of unannounced testing of each
individual who has been hired to
perform or who has been returned to the
performance of a safety-sensitive
function after refusing to submit to a
drug test required by this subpart or
receiving a verified positive drug test
result on a test conducted under this
subpart.
(2) The number and frequency of such
testing shall be determined by the
employer’s Substance Abuse
Professional conducted in accordance
with the provisions of 49 CFR part 40,
but shall consist of at least six tests in
the first 12 months following the
employee’s return to duty.
(3) The employer must direct the
employee to undergo testing for alcohol
in accordance with subpart F of this
part, in addition to drugs, if the
Substance Abuse Professional
determines that alcohol testing is
necessary for the particular employee.
Any such alcohol testing shall be
conducted in accordance with the
provisions of 49 CFR part 40.
(4) Follow-up testing shall not exceed
60 months after the date the individual
begins to perform or returns to the
performance of a safety-sensitive
function. The Substance Abuse
Professional may terminate the
requirement for follow-up testing at any
time after the first six tests have been
conducted, if the Substance Abuse
Professional determines that such
testing is no longer necessary.
§ 120.111
matters.
Administrative and other
(a) MRO record retention
requirements. (1) Records concerning
drug tests confirmed positive by the
laboratory shall be maintained by the
MRO for 5 years. Such records include
the MRO copies of the custody and
control form, medical interviews,
documentation of the basis for verifying
as negative test results confirmed as
positive by the laboratory, any other
documentation concerning the MRO’s
verification process.
(2) Should the employer change
MRO’s for any reason, the employer
shall ensure that the former MRO
forwards all records maintained
pursuant to this rule to the new MRO
within ten working days of receiving
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notice from the employer of the new
MRO’s name and address.
(3) Any employer obtaining MRO
services by contract, including a
contract through a C/TPA, shall ensure
that the contract includes a
recordkeeping provision that is
consistent with this paragraph,
including requirements for transferring
records to a new MRO.
(b) Access to records. The employer
and the MRO shall permit the
Administrator or the Administrator’s
representative to examine records
required to be kept under this subpart
and 49 CFR part 40. The Administrator
or the Administrator’s representative
may require that all records maintained
by the service agent for the employer
must be produced at the employer’s
place of business.
(c) Release of drug testing
information. An employer shall release
information regarding an employee’s
drug testing results, evaluation, or
rehabilitation to a third party in
accordance with 49 CFR part 40. Except
as required by law, this subpart, or 49
CFR part 40, no employer shall release
employee information.
(d) Refusal to submit to testing. Each
employer must notify the FAA within 2
working days of any employee who
holds a certificate issued under part 61,
part 63, or part 65 of this chapter who
has refused to submit to a drug test
required under this subpart. Notification
must be sent to: Federal Aviation
Administration, Office of Aerospace
Medicine, Drug Abatement Division
(AAM–800), 800 Independence Avenue,
SW., Washington, DC 20591, or by fax
to (202) 267–5200.
(e) Permanent disqualification from
service. (1) An employee who has
verified positive drug test results on two
drug tests required by this subpart of
this chapter, and conducted after
September 19, 1994, is permanently
precluded from performing for an
employer the safety-sensitive duties the
employee performed prior to the second
drug test.
(2) An employee who has engaged in
prohibited drug use during the
performance of a safety-sensitive
function after September 19, 1994 is
permanently precluded from performing
that safety-sensitive function for an
employer.
(f) DOT management information
system annual reports. Copies of any
annual reports submitted to the FAA
under this subpart must be maintained
by the employer for a minimum of 5
years.
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jlentini on PROD1PC65 with RULES
§ 120.113 Medical Review Officer,
Substance Abuse Professional, and
Employer Responsibilities.
(a) The employer shall designate or
appoint a Medical Review Officer
(MRO) who shall be qualified in
accordance with 49 CFR part 40 and
shall perform the functions set forth in
49 CFR part 40 and this subpart. If the
employer does not have a qualified
individual on staff to serve as MRO, the
employer may contract for the provision
of MRO services as part of its drug
testing program.
(b) Medical Review Officer (MRO).
The MRO must perform the functions
set forth in subpart G of 49 CFR part 40,
and subpart E of this part. The MRO
shall not delay verification of the
primary test result following a request
for a split specimen test unless such
delay is based on reasons other than the
fact that the split specimen test result is
pending. If the primary test result is
verified as positive, actions required
under this rule (e.g., notification to the
Federal Air Surgeon, removal from
safety-sensitive position) are not stayed
during the 72-hour request period or
pending receipt of the split specimen
test result.
(c) Substance Abuse Professional
(SAP). The SAP must perform the
functions set forth in 49 CFR part 40,
subpart O.
(d) Additional Medical Review
Officer, Substance Abuse Professional,
and Employer Responsibilities
Regarding 14 CFR part 67 Airman
Medical Certificate Holders. (1) As part
of verifying a confirmed positive test
result or refusal to submit to a test, the
MRO must ask and the individual must
answer whether he or she holds an
airman medical certificate issued under
14 CFR part 67 or would be required to
hold an airman medical certificate to
perform a safety-sensitive function for
the employer. If the individual answers
in the affirmative to either question, in
addition to notifying the employer in
accordance with 49 CFR part 40, the
MRO must forward to the Federal Air
Surgeon, at the address listed in
paragraph (d)(5) of this section, the
name of the individual, along with
identifying information and supporting
documentation, within 2 working days
after verifying a positive drug test result
or refusal to submit to a test.
(2) During the SAP interview required
for a verified positive test result or a
refusal to submit to a test, the SAP must
ask and the individual must answer
whether he or she holds or would be
required to hold an airman medical
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certificate issued under 14 CFR part 67
to perform a safety-sensitive function for
the employer. If the individual answers
in the affirmative, the individual must
obtain an airman medical certificate
issued by the Federal Air Surgeon dated
after the verified positive drug test
result date or refusal to test date. After
the individual obtains this airman
medical certificate, the SAP may
recommend to the employer that the
individual may be returned to a safetysensitive position. The receipt of an
airman medical certificate does not alter
any obligations otherwise required by
49 CFR part 40 or this subpart.
(3) An employer must forward to the
Federal Air Surgeon within 2 working
days of receipt, copies of all reports
provided to the employer by a SAP
regarding the following:
(i) An individual who the MRO has
reported to the Federal Air Surgeon
under § 120.113 (d)(1); or
(ii) An individual who the employer
has reported to the Federal Air Surgeon
under § 120.111(d).
(4) The employer must not permit an
employee who is required to hold an
airman medical certificate under 14 CFR
part 67 to perform a safety-sensitive
duty to resume that duty until the
employee has:
(i) Been issued an airman medical
certificate from the Federal Air Surgeon
after the date of the verified positive
drug test result or refusal to test; and
(ii) Met the return to duty
requirements in accordance with 49
CFR part 40.
(5) Reports required under this
section shall be forwarded to the
Federal Air Surgeon, Federal Aviation
Administration, Office of Aerospace
Medicine, Attn: Drug Abatement
Division (AAM–800), 800 Independence
Avenue, SW., Washington, DC 20591.
(6) MROs, SAPs, and employers who
send reports to the Federal Air Surgeon
must keep a copy of each report for 5
years.
§ 120.115
(EAP).
Employee Assistance Program
(a) The employer shall provide an
EAP for employees. The employer may
establish the EAP as a part of its internal
personnel services or the employer may
contract with an entity that will provide
EAP services to an employee. Each EAP
must include education and training on
drug use for employees and training for
supervisors making determinations for
testing of employees based on
reasonable cause.
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22659
(b) EAP education program. (1) Each
EAP education program must include at
least the following elements:
(i) Display and distribution of
informational material;
(ii) Display and distribution of a
community service hot-line telephone
number for employee assistance; and
(iii) Display and distribution of the
employer’s policy regarding drug use in
the workplace.
(2) The employer’s policy shall
include information regarding the
consequences under the rule of using
drugs while performing safety-sensitive
functions, receiving a verified positive
drug test result, or refusing to submit to
a drug test required under the rule.
(c) EAP training program. (1) Each
employer shall implement a reasonable
program of initial training for
employees. The employee training
program must include at least the
following elements:
(i) The effects and consequences of
drug use on individual health, safety,
and work environment;
(ii) The manifestations and behavioral
cues that may indicate drug use and
abuse; and
(iii) Documentation of training given
to employees and employer’s
supervisory personnel.
(2) The employer’s supervisory
personnel who will determine when an
employee is subject to testing based on
reasonable cause shall receive specific
training on specific, contemporaneous
physical, behavioral, and performance
indicators of probable drug use in
addition to the training specified in
§ 120.115 (c).
(3) The employer shall ensure that
supervisors who will make reasonable
cause determinations receive at least 60
minutes of initial training.
(4) The employer shall implement a
reasonable recurrent training program
for supervisory personnel making
reasonable cause determinations during
subsequent years.
(5) The employer shall identify the
employee and supervisor for EAP
training in the employer’s drug testing
plan submitted to the FAA for approval.
§ 120.117
program.
Implementing a drug testing
(a) Each company must meet the
requirements of this subpart. Use the
following chart to determine whether
your company must obtain an Antidrug
and Alcohol Misuse Prevention Program
Operations Specification or whether you
must register with the FAA:
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If you are . . .
You must . . .
(1) A part 119 certificate holder with authority to
operate under parts 121 and/or 135.
(2) A sightseeing operator as defined in
§ 91.147 of this chapter.
(3) An air traffic control facility not operated by
the FAA or by or under contract to the U.S.
Military.
(4) A part 145 certificate holder who has your
own drug testing program.
Obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification by contacting your FAA Principal Operations Inspector.
Register with the FAA by contacting the Flight Standards District Office nearest to your principal place of business.
Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM–800),
800 Independence Avenue, SW., Washington, DC 20591.
(5) A contractor who has your own drug testing
program.
(b) Use the following chart for
implementing a drug testing program if
you are applying for a part 119
certificate with authority to operate
under parts 121 or 135 of this chapter,
if you intend to begin operations as
Obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification by contacting your Principal Maintenance Inspector or register with the FAA, Office of Aerospace
Medicine, Drug Abatement Division (AAM–800), 800 Independence Avenue, SW., Washington, DC 20591, if you opt to conduct your own drug testing program.
Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM–800),
800 Independence Avenue, SW., Washington, DC 20591, if you opt to conduct your own
drug testing program.
defined in § 91.147 of this chapter, or if
you intend to begin air traffic control
operations (not operated by the FAA or
by or under contract to the U.S.
Military). Use it to determine whether
you need to have an Antidrug and
Alcohol Misuse Prevention Program
Operations Specification, or whether
you need to register with the FAA. Your
employees who perform safety-sensitive
functions must be tested in accordance
with this subpart. The chart follows:
If you . . .
You must . . .
(1) Apply for a part 119 certificate with authority to operate under parts
121 or 135.
(i) Have an Antidrug and Alcohol Misuse Prevention Program Operations Specification.
(ii) Implement an FAA drug testing program no later than the date you
start operations, and
(iii) Meet the requirements of this subpart.
(i) Register with the FAA, by contacting the Flight Standards District
Office nearest to your principal place of business prior to starting operations.
(ii) Implement an FAA drug testing program no later than the date you
start operations, and
(iii) Meet the requirements of this subpart.
(i) Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM–800), 800 Independence Avenue, SW., Washington, DC 20591 prior to starting operations.
(ii) Implement an FAA drug testing program no later than the date you
start operations, and
(iii) Meet the requirements of this subpart.
(2) Intend to begin operations as defined in § 91.147 of this chapter .....
(3) Intend to begin air traffic control operations (at an air traffic control
facility not operated by the FAA or by or under contract to the U.S.
military).
(c) If you are an individual or
company that intends to provide safetysensitive services by contract to a part
119 certificate holder with authority to
operate under parts 121 and/or 135 of
this chapter, an operation as defined in
§ 91.147 of this chapter, or an air traffic
control facility not operated by the FAA
or by or under contract to the U.S.
military, use the following chart to
determine what you must do if you opt
to have your own drug testing program.
If you . . .
And you opt to conduct your own drug program, you must . . .
(1) Are a part 145 certificate holder ...................
(i) Have an Antidrug and Alcohol Misuse Prevention Program Operations Specification or register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM–800), 800
Independence Avenue, SW., Washington, DC 20591,
(ii) Implement an FAA drug testing program no later than the date you start performing safetysensitive functions for a part 119 certificate holder with authority to operate under parts 121
or 135, or operator as defined in § 91.147 of this chapter, and
(iii) Meet the requirements of this subpart as if you were an employer.
(i) Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM–800),
800 Independence Avenue, SW., Washington, DC 20591,
(ii) Implement an FAA drug testing program no later than the date you start performing safetysensitive functions for a part 119 certificate holder with authority to operate under parts 121
or 135, or operator as defined in § 91.147 of this chapter, or an air traffic control facility not
operated by the FAA or by or under contract to the U.S. Military, and
(iii) Meet the requirements of this subpart as if you were an employer.
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(2) Are a contractor ............................................
(d) Obtaining an Antidrug and
Alcohol Misuse Prevention Program
Operations Specification. (1) To obtain
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an Antidrug and Alcohol Misuse
Prevention Program Operations
Specification, you must contact your
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FAA Principal Operations Inspector or
Principal Maintenance Inspector.
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Provide him/her with the following
information:
(i) Company name.
(ii) Certificate number.
(iii) Telephone number.
(iv) Address where your drug and
alcohol testing program records are
kept.
(v) Whether you have 50 or more
safety-sensitive employees, or 49 or
fewer safety-sensitive employees. (Part
119 certificate holders with authority to
operate only under part 121 of this
chapter are not required to provide this
information.)
(2) You must certify on your Antidrug
and Alcohol Misuse Prevention Program
Operations Specification issued by your
FAA Principal Operations Inspector or
Principal Maintenance Inspector that
you will comply with this part and 49
CFR part 40.
(3) You are required to obtain only
one Antidrug and Alcohol Misuse
Prevention Program Operations
Specification to satisfy this requirement
under this part.
(4) You must update the Antidrug and
Alcohol Misuse Prevention Program
Operations Specification when any
changes to the information contained in
the Operation Specification occur.
(e) Registering a drug and alcohol
testing program with the FAA. (1) To
register with the FAA, submit the
following information:
(i) Company name.
(ii) Telephone number.
(iii) Address where your drug and
alcohol testing program records are
kept.
(iv) Type of safety-sensitive functions
you perform for an employer (such as
flight instruction duties, aircraft
dispatcher duties, maintenance or
preventive maintenance duties, ground
security coordinator duties, aviation
screening duties, air traffic control
duties).
(v) Whether you have 50 or more
safety-sensitive employees, or 49 or
fewer covered employees.
(vi) A signed statement indicating
that: your company will comply with
this part and 49 CFR part 40; and, if you
are a contractor, you intend to provide
safety-sensitive functions by contract to
a part 119 certificate holder with
authority to operate under part 121 and/
or part 135 of this chapter, an operator
as defined in § 91.147 of this chapter, or
an air traffic control facility not
operated by the FAA or by or under
contract to the U.S. military.
(2) Send this information in the form
and manner prescribed by the
Administrator, in duplicate to: The
Federal Aviation Administration, Office
of Aerospace Medicine, Drug Abatement
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Division (AAM–800), 800 Independence
Avenue, SW., Washington, DC 20591.
(3) Update the registration
information as changes occur. Send the
updates in duplicate to the address
specified in paragraph (e)(2) of this
section.
(4) This registration will satisfy the
registration requirements for both your
drug testing program under this subpart
and your alcohol testing program under
subpart F of this part.
§ 120.119
Annual reports.
(a) Annual reports of testing results
must be submitted to the FAA by March
15 of the succeeding calendar year for
the prior calendar year (January 1
through December 31) in accordance
with the following provisions:
(1) Each part 121 certificate holder
shall submit an annual report each year.
(2) Each entity conducting a drug
testing program under this part, other
than a part 121 certificate holder, that
has 50 or more employees performing a
safety-sensitive function on January 1 of
any calendar year shall submit an
annual report to the FAA for that
calendar year.
(3) The Administrator reserves the
right to require that aviation employers
not otherwise required to submit annual
reports prepare and submit such reports
to the FAA. Employers that will be
required to submit annual reports under
this provision will be notified in writing
by the FAA.
(b) As an employer, you must use the
Management Information System (MIS)
form and instructions as required by 49
CFR part 40 (at 49 CFR 40.26 and
subpart H to 49 CFR part 40). You may
also use the electronic version of the
MIS form provided by DOT. The
Administrator may designate means
(e.g., electronic program transmitted via
the Internet) other than hard-copy, for
MIS form submission. For information
on where to submit MIS forms and for
the electronic version of the form, see:
https://www.faa.gov/about/office_org/
headquarters_offices/avs/offices/aam/
drug_alcohol/.
(c) A service agent may prepare the
MIS report on behalf of an employer.
However, a company official (e.g.,
Designated Employer Representative as
defined in 49 CFR part 40) must certify
the accuracy and completeness of the
MIS report, no matter who prepares it.
§ 120.121
Preemption.
(a) The issuance of 14 CFR parts 65,
91, 121, and 135 by the FAA preempts
any State or local law, rule, regulation,
order, or standard covering the subject
matter of 14 CFR parts 65, 91, 121, and
135, including but not limited to, drug
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22661
testing of aviation personnel performing
safety-sensitive functions.
(b) The issuance of 14 CFR parts 65,
91, 121, and 135 does not preempt
provisions of state criminal law that
impose sanctions for reckless conduct of
an individual that leads to actual loss of
life, injury, or damage to property
whether such provisions apply
specifically to aviation employees or
generally to the public.
§ 120.123 Drug testing outside the territory
of the United States.
(a) No part of the testing process
(including specimen collection,
laboratory processing, and MRO actions)
shall be conducted outside the territory
of the United States.
(1) Each employee who is assigned to
perform safety-sensitive functions solely
outside the territory of the United States
shall be removed from the random
testing pool upon the inception of such
assignment.
(2) Each covered employee who is
removed from the random testing pool
under this section shall be returned to
the random testing pool when the
employee resumes the performance of
safety-sensitive functions wholly or
partially within the territory of the
United States.
(b) The provisions of this subpart
shall not apply to any individual who
performs a function listed in § 120.105
by contract for an employer outside the
territory of the United States.
§ 120.125
Waivers from 49 CFR 40.21.
An employer subject to this part may
petition the Drug Abatement Division,
Office of Aerospace Medicine, for a
waiver allowing the employer to stand
down an employee following a report of
a laboratory confirmed positive drug test
or refusal, pending the outcome of the
verification process.
(a) Each petition for a waiver must be
in writing and include substantial facts
and justification to support the waiver.
Each petition must satisfy the
substantive requirements for obtaining a
waiver, as provided in 49 CFR 40.21.
(b) Each petition for a waiver must be
submitted to the Federal Aviation
Administration, Office of Aerospace
Medicine, Drug Abatement Division
(AAM–800), 800 Independence Avenue,
SW., Washington, DC 20591.
(c) The Administrator may grant a
waiver subject to 49 CFR 40.21(d).
Subpart F—Alcohol Testing Program
Requirements
§ 120.201
Scope.
This subpart contains the standards
and components that must be included
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§ 120.211
in an alcohol testing program required
by this part.
§ 120.203
General.
(a) Purpose. The purpose of this
subpart is to establish programs
designed to help prevent accidents and
injuries resulting from the misuse of
alcohol by employees who perform
safety-sensitive functions in aviation.
(b) Alcohol testing procedures. Each
employer shall ensure that all alcohol
testing conducted pursuant to this
subpart complies with the procedures
set forth in 49 CFR part 40. The
provisions of 49 CFR part 40 that
address alcohol testing are made
applicable to employers by this subpart.
(c) Employer responsibility. As an
employer, you are responsible for all
actions of your officials, representatives,
and service agents in carrying out the
requirements of the DOT agency
regulations.
§ 120.205
laws.
Preemption of State and local
(a) Except as provided in paragraph
(a)(2) of this section, these regulations
preempt any State or local law, rule,
regulation, or order to the extent that:
(1) Compliance with both the State or
local requirement and this subpart is not
possible; or
(2) Compliance with the State or local
requirement is an obstacle to the
accomplishment and execution of any
requirement in this subpart.
(b) The alcohol testing requirements
of this title shall not be construed to
preempt provisions of State criminal
law that impose sanctions for reckless
conduct leading to actual loss of life,
injury, or damage to property, whether
the provisions apply specifically to
transportation employees or employers
or to the general public.
§ 120.207 Other requirements imposed by
employers.
Except as expressly provided in these
alcohol testing requirements, nothing in
this subpart shall be construed to affect
the authority of employers, or the rights
of employees, with respect to the use or
possession of alcohol, including any
authority and rights with respect to
alcohol testing and rehabilitation.
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§ 120.209
Requirement for notice.
Before performing an alcohol test
under this subpart, each employer shall
notify a covered employee that the
alcohol test is required by this subpart.
No employer shall falsely represent that
a test is administered under this
subpart.
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Applicable Federal regulations.
The following applicable regulations
appear in 49 CFR and 14 CFR:
(a) 49 CFR Part 40—Procedures for
Transportation Workplace Drug Testing
Programs
(b) 14 CFR:
(1) § 67.107—First-Class Airman
Medical Certificate, Mental.
(2) § 67.207—Second-Class Airman
Medical Certificate, Mental.
(3) § 67.307—Third-Class Airman
Medical Certificate, Mental.
(4) § 91.147—Passenger carrying
flights for compensation or hire.
§ 120.213
Falsification.
No individual may make, or cause to
be made, any of the following:
(a) Any fraudulent or intentionally
false statement in any application of an
alcohol testing program.
(b) Any fraudulent or intentionally
false entry in any record or report that
is made, kept, or used to show
compliance with this subpart.
(c) Any reproduction or alteration, for
fraudulent purposes, of any report or
record required to be kept by this
subpart.
§ 120.215
Covered employees.
(a) Each employee, including any
assistant, helper, or individual in a
training status, who performs a safetysensitive function listed in this section
directly or by contract (including by
subcontract at any tier) for an employer
as defined in this subpart must be
subject to alcohol testing under an
alcohol testing program implemented in
accordance with this subpart. This
includes full-time, part-time, temporary,
and intermittent employees regardless
of the degree of supervision. The safetysensitive functions are:
(1) Flight crewmember duties.
(2) Flight attendant duties.
(3) Flight instruction duties.
(4) Aircraft dispatcher duties.
(5) Aircraft maintenance or preventive
maintenance duties.
(6) Ground security coordinator
duties.
(7) Aviation screening duties.
(8) Air traffic control duties.
(b) Each employer must identify any
employee who is subject to the alcohol
testing regulations of more than one
DOT agency. Prior to conducting any
alcohol test on a covered employee
subject to the alcohol testing regulations
of more than one DOT agency, the
employer must determine which DOT
agency authorizes or requires the test.
§ 120.217
Tests required.
(a) Pre-employment alcohol testing.
As an employer, you may, but are not
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required to, conduct pre-employment
alcohol testing under this subpart. If you
choose to conduct pre-employment
alcohol testing, you must comply with
the following requirements:
(1) You must conduct a preemployment alcohol test before the first
performance of safety-sensitive
functions by every covered employee
(whether a new employee or someone
who has transferred to a position
involving the performance of safetysensitive functions).
(2) You must treat all safety-sensitive
employees performing safety-sensitive
functions the same for the purpose of
pre-employment alcohol testing (i.e.,
you must not test some covered
employees and not others).
(3) You must conduct the preemployment tests after making a
contingent offer of employment or
transfer, subject to the employee passing
the pre-employment alcohol test.
(4) You must conduct all preemployment alcohol tests using the
alcohol testing procedures of 49 CFR
part 40.
(5) You must not allow a covered
employee to begin performing safetysensitive functions unless the result of
the employee’s test indicates an alcohol
concentration of less than 0.04. If a preemployment test result under this
paragraph indicates an alcohol
concentration of 0.02 or greater but less
than 0.04, the provisions of § 120.221(f)
apply.
(b) Post-accident alcohol testing. (1)
As soon as practicable following an
accident, each employer shall test each
surviving covered employee for alcohol
if that employee’s performance of a
safety-sensitive function either
contributed to the accident or cannot be
completely discounted as a contributing
factor to the accident. The decision not
to administer a test under this section
shall be based on the employer’s
determination, using the best available
information at the time of the
determination, that the covered
employee’s performance could not have
contributed to the accident.
(2) If a test required by this section is
not administered within 2 hours
following the accident, the employer
shall prepare and maintain on file a
record stating the reasons the test was
not promptly administered. If a test
required by this section is not
administered within 8 hours following
the accident, the employer shall cease
attempts to administer an alcohol test
and shall prepare and maintain the
same record. Records shall be submitted
to the FAA upon request of the
Administrator or his or her designee.
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(3) A covered employee who is
subject to post-accident testing shall
remain readily available for such testing
or may be deemed by the employer to
have refused to submit to testing.
Nothing in this section shall be
construed to require the delay of
necessary medical attention for injured
people following an accident or to
prohibit a covered employee from
leaving the scene of an accident for the
period necessary to obtain assistance in
responding to the accident or to obtain
necessary emergency medical care.
(c) Random alcohol testing. (1) Except
as provided in paragraphs (c)(2) through
(c)(4) of this section, the minimum
annual percentage rate for random
alcohol testing will be 25 percent of the
covered employees.
(2) The Administrator’s decision to
increase or decrease the minimum
annual percentage rate for random
alcohol testing is based on the violation
rate for the entire industry. All
information used for this determination
is drawn from MIS reports required by
this subpart. In order to ensure
reliability of the data, the Administrator
considers the quality and completeness
of the reported data, may obtain
additional information or reports from
employers, and may make appropriate
modifications in calculating the
industry violation rate. Each year, the
Administrator will publish in the
Federal Register the minimum annual
percentage rate for random alcohol
testing of covered employees. The new
minimum annual percentage rate for
random alcohol testing will be
applicable starting January 1 of the
calendar year following publication.
(3)(i) When the minimum annual
percentage rate for random alcohol
testing is 25 percent or more, the
Administrator may lower this rate to 10
percent of all covered employees if the
Administrator determines that the data
received under the reporting
requirements of this subpart for two
consecutive calendar years indicate that
the violation rate is less than 0.5
percent.
(ii) When the minimum annual
percentage rate for random alcohol
testing is 50 percent, the Administrator
may lower this rate to 25 percent of all
covered employees if the Administrator
determines that the data received under
the reporting requirements of this
subpart for two consecutive calendar
years indicate that the violation rate is
less than 1.0 percent but equal to or
greater than 0.5 percent.
(4)(i) When the minimum annual
percentage rate for random alcohol
testing is 10 percent, and the data
received under the reporting
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requirements of this subpart for that
calendar year indicate that the violation
rate is equal to or greater than 0.5
percent but less than 1.0 percent, the
Administrator will increase the
minimum annual percentage rate for
random alcohol testing to 25 percent of
all covered employees.
(ii) When the minimum annual
percentage rate for random alcohol
testing is 25 percent or less, and the data
received under the reporting
requirements of this subpart for that
calendar year indicate that the violation
rate is equal to or greater than 1.0
percent, the Administrator will increase
the minimum annual percentage rate for
random alcohol testing to 50 percent of
all covered employees.
(5) The selection of employees for
random alcohol testing shall be made by
a scientifically valid method, such as a
random-number table or a computerbased random number generator that is
matched with employees’ Social
Security numbers, payroll identification
numbers, or other comparable
identifying numbers. Under the
selection process used, each covered
employee shall have an equal chance of
being tested each time selections are
made.
(6) As an employer, you must select
and test a percentage of employees at
least equal to the minimum annual
percentage rate each year.
(i) As an employer, to determine
whether you have met the minimum
annual percentage rate, you must divide
the number of random alcohol screening
test results for safety-sensitive
employees by the average number of
safety-sensitive employees eligible for
random testing.
(A) To calculate whether you have
met the annual minimum percentage
rate, count all random screening test
results below 0.02 breath alcohol
concentration, random screening test
results of 0.02 or greater breath alcohol
concentration, and random refusals as
your ‘‘random alcohol screening test
results.’’
(B) To calculate the average number of
safety-sensitive employees eligible for
random testing throughout the year, add
the total number of safety-sensitive
employees eligible for testing during
each random testing period for the year
and divide that total by the number of
random testing periods. Only safetysensitive employees are to be in an
employer’s random testing pool, and all
safety-sensitive employees must be in
the random pool. If you are an employer
conducting random testing more often
than once per month (e.g., you select
daily, weekly, bi-weekly) you do not
need to compute this total number of
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22663
safety-sensitive employees more than on
a once per month basis.
(ii) As an employer, you may use a
service agent to perform random
selections for you, and your safetysensitive employees may be part of a
larger random testing pool of safetysensitive employees. However, you
must ensure that the service agent you
use is testing at the appropriate
percentage established for your industry
and that only safety-sensitive employees
are in the random testing pool. For
example:
(A) If the service agent has your
employees in a random testing pool for
your company alone, you must ensure
that the testing is conducted at least at
the minimum annual percentage rate
under this part.
(B) If the service agent has your
employees in a random testing pool
combined with other FAA-regulated
companies, you must ensure that the
testing is conducted at least at the
minimum annual percentage rate under
this part.
(C) If the service agent has your
employees in a random testing pool
combined with other DOT-regulated
companies, you must ensure that the
testing is conducted at least at the
highest rate required for any DOTregulated company in the pool.
(7) Each employer shall ensure that
random alcohol tests conducted under
this subpart are unannounced and that
the dates for administering random tests
are spread reasonably throughout the
calendar year.
(8) Each employer shall require that
each covered employee who is notified
of selection for random testing proceeds
to the testing site immediately;
provided, however, that if the employee
is performing a safety-sensitive function
at the time of the notification, the
employer shall instead ensure that the
employee ceases to perform the safetysensitive function and proceeds to the
testing site as soon as possible.
(9) A covered employee shall only be
randomly tested while the employee is
performing safety-sensitive functions;
just before the employee is to perform
safety-sensitive functions; or just after
the employee has ceased performing
such functions.
(10) If a given covered employee is
subject to random alcohol testing under
the alcohol testing rules of more than
one DOT agency, the employee shall be
subject to random alcohol testing at the
percentage rate established for the
calendar year by the DOT agency
regulating more than 50 percent of the
employee’s functions.
(11) If an employer is required to
conduct random alcohol testing under
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the alcohol testing rules of more than
one DOT agency, the employer may—
(i) Establish separate pools for random
selection, with each pool containing the
covered employees who are subject to
testing at the same required rate; or
(ii) Randomly select such employees
for testing at the highest percentage rate
established for the calendar year by any
DOT agency to which the employer is
subject.
(d) Reasonable suspicion alcohol
testing. (1) An employer shall require a
covered employee to submit to an
alcohol test when the employer has
reasonable suspicion to believe that the
employee has violated the alcohol
misuse prohibitions in §§ 120.19 or
120.37.
(2) The employer’s determination that
reasonable suspicion exists to require
the covered employee to undergo an
alcohol test shall be based on specific,
contemporaneous, articulable
observations concerning the appearance,
behavior, speech or body odors of the
employee. The required observations
shall be made by a supervisor who is
trained in detecting the symptoms of
alcohol misuse. The supervisor who
makes the determination that reasonable
suspicion exists shall not conduct the
breath alcohol test on that employee.
(3) Alcohol testing is authorized by
this section only if the observations
required by paragraph (d)(2) of this
section are made during, just preceding,
or just after the period of the work day
that the covered employee is required to
be in compliance with this rule. An
employee may be directed by the
employer to undergo reasonable
suspicion testing for alcohol only while
the employee is performing safetysensitive functions; just before the
employee is to perform safety-sensitive
functions; or just after the employee has
ceased performing such functions.
(4)(i) If a test required by this section
is not administered within 2 hours
following the determination made under
paragraph (d)(2) of this section, the
employer shall prepare and maintain on
file a record stating the reasons the test
was not promptly administered. If a test
required by this section is not
administered within 8 hours following
the determination made under
paragraph (d)(2) of this section, the
employer shall cease attempts to
administer an alcohol test and shall
state in the record the reasons for not
administering the test.
(ii) Notwithstanding the absence of a
reasonable suspicion alcohol test under
this section, no covered employee shall
report for duty or remain on duty
requiring the performance of safetysensitive functions while the employee
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is under the influence of, or impaired
by, alcohol, as shown by the behavioral,
speech, or performance indicators of
alcohol misuse, nor shall an employer
permit the covered employee to perform
or continue to perform safety-sensitive
functions until:
(A) An alcohol test is administered
and the employee’s alcohol
concentration measures less than 0.02;
or
(B) The start of the employee’s next
regularly scheduled duty period, but not
less than 8 hours following the
determination made under paragraph
(d)(2) of this section that there is
reasonable suspicion that the employee
has violated the alcohol misuse
provisions in §§ 120.19 or 120.37.
(iii) No employer shall take any action
under this subpart against a covered
employee based solely on the
employee’s behavior and appearance in
the absence of an alcohol test. This does
not prohibit an employer with authority
independent of this subpart from taking
any action otherwise consistent with
law.
(e) Return-to-duty alcohol testing.
Each employer shall ensure that before
a covered employee returns to duty
requiring the performance of a safetysensitive function after engaging in
conduct prohibited in §§ 120.19 or
120.37 the employee shall undergo a
return-to-duty alcohol test with a result
indicating an alcohol concentration of
less than 0.02. The test cannot occur
until after the SAP has determined that
the employee has successfully complied
with the prescribed education and/or
treatment.
(f) Follow-up alcohol testing. (1) Each
employer shall ensure that the employee
who engages in conduct prohibited by
§§ 120.19 or 120.37, is subject to
unannounced follow-up alcohol testing
as directed by a SAP.
(2) The number and frequency of such
testing shall be determined by the
employer’s SAP, but must consist of at
least six tests in the first 12 months
following the employee’s return to duty.
(3) The employer must direct the
employee to undergo testing for drugs in
accordance with subpart E of this part,
in addition to alcohol, if the SAP
determines that drug testing is necessary
for the particular employee. Any such
drug testing shall be conducted in
accordance with the provisions of 49
CFR part 40.
(4) Follow-up testing shall not exceed
60 months after the date the individual
begins to perform, or returns to the
performance of, a safety-sensitive
function. The SAP may terminate the
requirement for follow-up testing at any
time after the first six tests have been
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conducted, if the SAP determines that
such testing is no longer necessary.
(5) A covered employee shall be
tested for alcohol under this section
only while the employee is performing
safety-sensitive functions, just before
the employee is to perform safetysensitive functions, or just after the
employee has ceased performing such
functions.
(g) Retesting of covered employees
with an alcohol concentration of 0.02 or
greater but less than 0.04. Each
employer shall retest a covered
employee to ensure compliance with the
provisions of § 120.221(f) if the
employer chooses to permit the
employee to perform a safety-sensitive
function within 8 hours following the
administration of an alcohol test
indicating an alcohol concentration of
0.02 or greater but less than 0.04.
§ 120.219 Handling of test results, record
retention, and confidentiality.
(a) Retention of records. (1) General
requirement. In addition to the records
required to be maintained under 49 CFR
part 40, employers must maintain
records required by this subpart in a
secure location with controlled access.
(2) Period of retention.
(i) Five years.
(A) Copies of any annual reports
submitted to the FAA under this subpart
for a minimum of 5 years.
(B) Records of notifications to the
Federal Air Surgeon of refusals to
submit to testing and violations of the
alcohol misuse prohibitions in this
chapter by covered employees who hold
medical certificates issued under part 67
of this chapter.
(C) Documents presented by a covered
employee to dispute the result of an
alcohol test administered under this
subpart.
(D) Records related to other violations
of §§ 120.19 or 120.37.
(ii) Two years. Records related to the
testing process and training required
under this subpart.
(A) Documents related to the random
selection process.
(B) Documents generated in
connection with decisions to administer
reasonable suspicion alcohol tests.
(C) Documents generated in
connection with decisions on postaccident tests.
(D) Documents verifying existence of
a medical explanation of the inability of
a covered employee to provide adequate
breath for testing.
(E) Materials on alcohol misuse
awareness, including a copy of the
employer’s policy on alcohol misuse.
(F) Documentation of compliance
with the requirements of § 120.223(a).
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(G) Documentation of training
provided to supervisors for the purpose
of qualifying the supervisors to make a
determination concerning the need for
alcohol testing based on reasonable
suspicion.
(H) Certification that any training
conducted under this subpart complies
with the requirements for such training.
(b) Annual reports. (1) Annual reports
of alcohol testing program results must
be submitted to the FAA by March 15
of the succeeding calendar year for the
prior calendar year (January 1 through
December 31) in accordance with the
provisions of paragraphs (b)(1)(i)
through (iii) of this section.
(i) Each part 121 certificate holder
shall submit an annual report each year.
(ii) Each entity conducting an alcohol
testing program under this part, other
than a part 121 certificate holder, that
has 50 or more employees performing a
safety-sensitive function on January 1 of
any calendar year shall submit an
annual report to the FAA for that
calendar year.
(iii) The Administrator reserves the
right to require that aviation employers
not otherwise required to submit annual
reports prepare and submit such reports
to the FAA. Employers that will be
required to submit annual reports under
this provision will be notified in writing
by the FAA.
(2) As an employer, you must use the
Management Information System (MIS)
form and instructions as required by 49
CFR part 40 (at 49 CFR 40.26 and
appendix H to 49 CFR part 40). You may
also use the electronic version of the
MIS form provided by the DOT. The
Administrator may designate means
(e.g., electronic program transmitted via
the Internet) other than hard-copy, for
MIS form submission. For information
on where to submit MIS forms and for
the electronic version of the form, see:
https://www.faa.gov/about/office_org/
headquarters_offices/avs/offices/aam/
drug_alcohol/.
(3) A service agent may prepare the
MIS report on behalf of an employer.
However, a company official (e.g.,
Designated Employer Representative as
defined in 49 CFR part 40) must certify
the accuracy and completeness of the
MIS report, no matter who prepares it.
(c) Access to records and facilities.
(1) Except as required by law or
expressly authorized or required in this
subpart, no employer shall release
covered employee information that is
contained in records required to be
maintained under this subpart.
(2) A covered employee is entitled,
upon written request, to obtain copies of
any records pertaining to the employee’s
use of alcohol, including any records
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pertaining to his or her alcohol tests in
accordance with 49 CFR part 40. The
employer shall promptly provide the
records requested by the employee.
Access to an employee’s records shall
not be contingent upon payment for
records other than those specifically
requested.
(3) Each employer shall permit access
to all facilities utilized in complying
with the requirements of this subpart to
the Secretary of Transportation or any
DOT agency with regulatory authority
over the employer or any of its covered
employees.
§ 120.221 Consequences for employees
engaging in alcohol-related conduct.
(a) Removal from safety-sensitive
function. (1) Except as provided in 49
CFR part 40, no covered employee shall
perform safety-sensitive functions if the
employee has engaged in conduct
prohibited by §§ 120.19 or 120.37, or an
alcohol misuse rule of another DOT
agency.
(2) No employer shall permit any
covered employee to perform safetysensitive functions if the employer has
determined that the employee has
violated this section.
(b) Permanent disqualification from
service. An employee who violates
§§ 120.19 or 120.37, or who engages in
alcohol use that violates another alcohol
misuse provision of §§ 120.19 or 120.37
and who had previously engaged in
alcohol use that violated the provisions
of §§ 120.19 or 120.37 after becoming
subject to such prohibitions is
permanently precluded from performing
for an employer the safety-sensitive
duties the employee performed before
such violation.
(c) Notice to the Federal Air Surgeon.
(1) An employer who determines that a
covered employee who holds an airman
medical certificate issued under part 67
of this chapter has engaged in alcohol
use that violated the alcohol misuse
provisions of §§ 120.19 or 120.37 shall
notify the Federal Air Surgeon within 2
working days.
(2) Each such employer shall forward
to the Federal Air Surgeon a copy of the
report of any evaluation performed
under the provisions of § 120.223(c)
within 2 working days of the employer’s
receipt of the report.
(3) All documents must be sent to the
Federal Air Surgeon, Federal Aviation
Administration, Office of Aerospace
Medicine, Attn: Drug Abatement
Division (AAM–800), 800 Independence
Avenue, SW., Washington, DC 20591.
(4) No covered employee who is
required to hold an airman medical
certificate in order to perform a safetysensitive duty may perform that duty
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following a violation of this subpart
until the covered employee obtains an
airman medical certificate issued by the
Federal Air Surgeon dated after the
alcohol test result or refusal to test date.
After the covered employee obtains this
airman medical certificate, the SAP may
recommend to the employer that the
covered employee may be returned to a
safety-sensitive position. The receipt of
an airman medical certificate does not
alter any obligations otherwise required
by 49 CFR part 40 or this subpart.
(5) Once the Federal Air Surgeon has
recommended under paragraph (c)(4) of
this section that the employee be
permitted to perform safety-sensitive
duties, the employer cannot permit the
employee to perform those safetysensitive duties until the employer has
ensured that the employee meets the
return to duty requirements in
accordance with 49 CFR part 40.
(d) Notice of refusals. Each covered
employer must notify the FAA within 2
working days of any employee who
holds a certificate issued under part 61,
part 63, or part 65 of this chapter who
has refused to submit to an alcohol test
required under this subpart. Notification
must be sent to: Federal Aviation
Administration, Office of Aerospace
Medicine, Drug Abatement Division
(AAM–800), 800 Independence Avenue,
SW., Washington, DC 20591, or by fax
to (202) 267–5200.
(e) Required evaluation and alcohol
testing. No covered employee who has
engaged in conduct prohibited by
§§ 120.19 or 120.37 shall perform safetysensitive functions unless the employee
has met the requirements of 49 CFR part
40. No employer shall permit a covered
employee who has engaged in such
conduct to perform safety-sensitive
functions unless the employee has met
the requirements of 49 CFR part 40.
(f) Other alcohol-related conduct. (1)
No covered employee tested under this
subpart who is found to have an alcohol
concentration of 0.02 or greater but less
than 0.04 shall perform or continue to
perform safety-sensitive functions for an
employer, nor shall an employer permit
the employee to perform or continue to
perform safety-sensitive functions, until:
(i) The employee’s alcohol
concentration measures less than 0.02;
or
(ii) The start of the employee’s next
regularly scheduled duty period, but not
less than 8 hours following
administration of the test.
(2) Except as provided in paragraph
(f)(1) of this section, no employer shall
take any action under this rule against
an employee based solely on test results
showing an alcohol concentration less
than 0.04. This does not prohibit an
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employer with authority independent of
this rule from taking any action
otherwise consistent with law.
§ 120.223 Alcohol misuse information,
training, and substance abuse
professionals.
(a) Employer obligation to promulgate
a policy on the misuse of alcohol. (1)
General requirements. Each employer
shall provide educational materials that
explain these alcohol testing
requirements and the employer’s
policies and procedures with respect to
meeting those requirements.
(i) The employer shall ensure that a
copy of these materials is distributed to
each covered employee prior to the start
of alcohol testing under the employer’s
FAA-mandated alcohol testing program
and to each individual subsequently
hired for or transferred to a covered
position.
(ii) Each employer shall provide
written notice to representatives of
employee organizations of the
availability of this information.
(2) Required content. The materials to
be made available to employees shall
include detailed discussion of at least
the following:
(i) The identity of the individual
designated by the employer to answer
employee questions about the materials.
(ii) The categories of employees who
are subject to the provisions of these
alcohol testing requirements.
(iii) Sufficient information about the
safety-sensitive functions performed by
those employees to make clear what
period of the work day the covered
employee is required to be in
compliance with these alcohol testing
requirements.
(iv) Specific information concerning
employee conduct that is prohibited by
this chapter.
(v) The circumstances under which a
covered employee will be tested for
alcohol under this subpart.
(vi) The procedures that will be used
to test for the presence of alcohol,
protect the employee and the integrity
of the breath testing process, safeguard
the validity of the test results, and
ensure that those results are attributed
to the correct employee.
(vii) The requirement that a covered
employee submit to alcohol tests
administered in accordance with this
subpart.
(viii) An explanation of what
constitutes a refusal to submit to an
alcohol test and the attendant
consequences.
(ix) The consequences for covered
employees found to have violated the
prohibitions in this chapter, including
the requirement that the employee be
removed immediately from performing
safety-sensitive functions, and the
process in 49 CFR part 40, subpart O.
(x) The consequences for covered
employees found to have an alcohol
concentration of 0.02 or greater but less
than 0.04.
(xi) Information concerning the effects
of alcohol misuse on an individual’s
health, work, and personal life; signs
and symptoms of an alcohol problem;
available methods of evaluating and
resolving problems associated with the
misuse of alcohol; and intervening
when an alcohol problem is suspected,
including confrontation, referral to any
available employee assistance program,
and/or referral to management.
(xii) Optional provisions. The
materials supplied to covered
employees may also include
information on additional employer
policies with respect to the use or
possession of alcohol, including any
consequences for an employee found to
have a specified alcohol level, that are
based on the employer’s authority
independent of this subpart. Any such
additional policies or consequences
must be clearly and obviously described
as being based on independent
authority.
(b) Training for supervisors. Each
employer shall ensure that persons
designated to determine whether
reasonable suspicion exists to require a
covered employee to undergo alcohol
testing under § 120.217(d) of this
subpart receive at least 60 minutes of
training on the physical, behavioral,
speech, and performance indicators of
probable alcohol misuse.
(c) Substance abuse professional
(SAP) duties. The SAP must perform the
functions set forth in 49 CFR part 40,
subpart O, and this subpart.
§ 120.225 How to implement an alcohol
testing program.
(a) Each company must meet the
requirements of this subpart. Use the
following chart to determine whether
your company must obtain an Antidrug
and Alcohol Misuse Prevention Program
Operations Specification or whether you
must register with the FAA:
If you are . . .
You must . . .
(1) A part 119 certificate holder with authority to
operate under parts 121 and/or 135.
(2) An operator as defined in § 91.147 of this
chapter.
(3) An air traffic control facility not operated by
the FAA or by or under contract to the U.S.
Military.
(4) A part 145 certificate holder who has your
own alcohol testing program.
Obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification by contacting your FAA Principal Operations Inspector.
Register with the FAA, by contacting the Flight Standards District Office nearest to your principal place of business.
Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM–800),
800 Independence Avenue, SW., Washington, DC 20591.
jlentini on PROD1PC65 with RULES
(5) A contractor who has your own alcohol testing program.
(b) Use the following chart for
implementing an alcohol testing
program if you are applying for a part
119 certificate with authority to operate
under parts 121 and/or 135 of this
chapter, if you intend to begin
operations as defined in § 91.147 of this
VerDate Nov<24>2008
18:53 May 13, 2009
Jkt 217001
Obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification by contacting your Principal Maintenance Inspector or register with the FAA Office of Aerospace
Medicine, Drug Abatement Division (AAM–800), 800 Independence Avenue, SW., Washington, DC 20591 if you opt to conduct your own alcohol testing program.
Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM–800),
800 Independence Avenue, SW., Washington, DC 20591 if you opt to conduct your own alcohol testing program.
chapter, or if you intend to begin
operations as defined air traffic control
operations (not operated by the FAA or
by or under contract to the U.S.
Military). Use it to determine whether
you need to have an Antidrug and
Alcohol Misuse Prevention Program
PO 00000
Frm 00028
Fmt 4700
Sfmt 4700
Operations Specification, or whether
you need to register with the FAA. Your
employees who perform safety-sensitive
duties must be tested in accordance
with this subpart. The chart follows:
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Federal Register / Vol. 74, No. 92 / Thursday, May 14, 2009 / Rules and Regulations
22667
If you . . .
You must . . .
(1) Apply for a part 119 certificate with authority
to operate under parts 121 and/or 135.
(i) Have an Antidrug and Alcohol Misuse Prevention Program Operations Specification,
(ii) Implement an FAA alcohol testing program no later than the date you start operations, and
(iii) Meet the requirements of this subpart.
(2) Intend to begin operations as defined in
§ 91.147 of this chapter.
(i) Register with the FAA by contacting the Flight Standards District Office nearest your principal place of business prior to starting operations,
(ii) Implement an FAA alcohol testing program no later than the date you start operations, and
(iii) Meet the requirements of this subpart.
(3) Intend to begin air traffic control operations
(at an air traffic control facility not operated
by the FAA or by or under contract to the
U.S. military).
(i) Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM–800),
800 Independence Avenue, SW., Washington, DC 20591 prior to starting operations,
(ii) Implement an FAA alcohol testing program no later than the date you start operations, and
(iii) Meet the requirements of this subpart.
(c) If you are an individual or a
company that intends to provide safetysensitive services by contract to a part
119 certificate holder with authority to
operate under parts 121 and/or 135 of
this chapter or an operator as defined in
§ 91.147 of this chapter, use the
following chart to determine what you
must do if you opt to have your own
alcohol testing program.
And you opt to conduct your own Alcohol Testing Program, you must . . .
(1) Are a part 145 certificate holder ...................
(i) Have an Antidrug and Alcohol Misuse Prevention Program Operations Specifications or register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM–800), 800
Independence Avenue, SW., Washington, DC 20591,
(ii) Implement an FAA alcohol testing program no later than the date you start performing safety-sensitive functions for a part 119 certificate holder with the authority to operate under
parts 121 and/or 135, or operator as defined in § 91.147 of this chapter, and
(iii) Meet the requirements of this subpart as if you were an employer.
(2) Are a contractor ............................................
jlentini on PROD1PC65 with RULES
If you . . .
(i) Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM–800),
800 Independence Avenue, SW., Washington, DC 20591,
(ii) Implement an FAA alcohol testing program no later than the date you start performing safety-sensitive functions for a part 119 certificate holder with authority to operate under parts
121 and/or 135, or operator as defined in § 91.147 of this chapter, and
(iii) Meet the requirements of this subpart as if you were an employer.
(d)(1) To obtain an Antidrug and
Alcohol Misuse Prevention Program
Operations Specification, you must
contact your FAA Principal Operations
Inspector or Principal Maintenance
Inspector. Provide him/her with the
following information:
(i) Company name.
(ii) Certificate number.
(iii) Telephone number.
(iv) Address where your drug and
alcohol testing program records are
kept.
(v) Whether you have 50 or more
covered employees, or 49 or fewer
covered employees. (Part 119 certificate
holders with authority to operate only
under part 121 of this chapter are not
required to provide this information.)
(2) You must certify on your Antidrug
and Alcohol Misuse Prevention Program
Operations Specification, issued by your
FAA Principal Operations Inspector or
Principal Maintenance Inspector, that
you will comply with this part and 49
CFR part 40.
(3) You are required to obtain only
one Antidrug and Alcohol Misuse
Prevention Program Operations
Specification to satisfy this requirement
under this part.
VerDate Nov<24>2008
18:53 May 13, 2009
Jkt 217001
(4) You must update the Antidrug and
Alcohol Misuse Prevention Program
Operations Specification when any
changes to the information contained in
the Operation Specification occur.
(e)(1) To register with the FAA,
submit the following information:
(i) Company name.
(ii) Telephone number.
(iii) Address where your drug and
alcohol testing program records are
kept.
(iv) Type of safety-sensitive functions
you perform for an employer (such as
flight instruction duties, aircraft
dispatcher duties, maintenance or
preventive maintenance duties, ground
security coordinator duties, aviation
screening duties, air traffic control
duties).
(v) Whether you have 50 or more
covered employees, or 49 or fewer
covered employees.
(vi) A signed statement indicating
that: Your company will comply with
this part and 49 CFR part 40; and, if you
are a contractor, you intend to provide
safety-sensitive functions by contract to
a part 119 certificate holder with
authority to operate under part 121 and/
or 135 of this chapter, an operator as
PO 00000
Frm 00029
Fmt 4700
Sfmt 4700
defined by § 91.147 of this chapter, or
an air traffic control facility not
operated by the FAA or by or under
contract to the U.S. Military.
(2) Send this information in the form
and manner prescribed by the
Administrator, in duplicate to: The
Federal Aviation Administration, Office
of Aerospace Medicine, Drug Abatement
Division (AAM–800), 800 Independence
Avenue, SW., Washington, DC 20591.
(3) Update the registration
information as changes occur. Send the
updates in duplicate to the address
specified in paragraph (e)(2) of this
section.
(4) This registration will satisfy the
registration requirements for both your
drug testing program under subpart E of
this part and your alcohol testing
program under this subpart.
§ 120.227
U.S.
Employees located outside the
(a) No covered employee shall be
tested for alcohol misuse while located
outside the territory of the United
States.
(1) Each covered employee who is
assigned to perform safety-sensitive
functions solely outside the territory of
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Federal Register / Vol. 74, No. 92 / Thursday, May 14, 2009 / Rules and Regulations
the United States shall be removed from
the random testing pool upon the
inception of such assignment.
(2) Each covered employee who is
removed from the random testing pool
under this paragraph shall be returned
to the random testing pool when the
employee resumes the performance of
safety-sensitive functions wholly or
partially within the territory of the
United States.
(b) The provisions of this subpart
shall not apply to any person who
performs a safety-sensitive function by
contract for an employer outside the
territory of the United States.
PART 121—OPERATING
REQUIREMENTS: DOMESTIC, FLAG,
AND SUPPLEMENTAL OPERATIONS
23. Section 135.1(a)(5) is revised to
read as follows:
■
§ 135.1
14. The authority citation for part 121
continues to read as follows:
§ 135.249
Authority: 49 U.S.C. 106(g), 1153, 40101,
40102, 40103, 40113, 41721, 44105, 44106,
44111, 44701–44717, 44722, 44901, 44903,
44904, 44906, 44912, 44914, 44936, 44938,
46103, 46105.
§ 135.251
■
§ 121.429
[Removed and Reserved]
§ 121.455
[Removed and Reserved]
§ 135.255
[Removed and Reserved]
27. Section 135.255 is removed and
reserved.
■
[Removed and Reserved]
§ 135.353
17. Section 121.457 is removed and
reserved.
■
[Removed and Reserved]
28. Section 135.353 is removed and
reserved.
■
[Removed and Reserved]
Issued in Washington, DC, on May 7, 2009.
Lynne A. Osmus,
Acting Administrator.
[FR Doc. E9–11289 Filed 5–13–09; 8:45 am]
18. Section 121.458 is removed and
reserved.
■
§ 121.459
[Removed and Reserved]
26. Section 135.253 is removed and
reserved.
16. Section 121.455 is removed and
reserved.
§ 121.458
[Removed and Reserved]
25. Section 135.251 is removed and
reserved.
■
■
■
§ 121.457
[Removed and Reserved]
24. Section 135.249 is removed and
reserved.
■
§ 135.253
15. Section 121.429 is removed and
reserved.
■
Applicability
(a) * * *
(5) Nonstop Commercial Air Tour
flights conducted for compensation or
hire in accordance with § 119.1(e)(2) of
this chapter that begin and end at the
same airport and are conducted within
a 25-statute-mile radius of that airport;
provided further that these operations
must comply only with the drug and
alcohol testing requirements in
§§ 120.31, 120.33, 120.35, 120.37, and
135.39 of this chapter; and with the
provisions of part 136, subpart A, and
§ 91.147 of this chapter by September
11, 2007.
*
*
*
*
*
[Removed and Reserved]
19. Section 121.459 is removed and
reserved.
BILLING CODE 4910–13–P
Appendix I to Part 121
Reserved]
DEPARTMENT OF TRANSPORTATION
■
[Removed and
20. Appendix I is removed and
reserved.
14 CFR Part 97
Appendix J to Part 121
Reserved]
Standard Instrument Approach
Procedures, and Takeoff Minimums
and Obstacle Departure Procedures;
Miscellaneous Amendments
■
[Docket No. 30666; Amdt. No. 3321]
[Removed and
21. Appendix J is removed and
reserved.
■
AGENCY: Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule.
jlentini on PROD1PC65 with RULES
PART 135—OPERATING
REQUIREMENTS: COMMUTER AND
ON DEMAND OPERATIONS AND
RULES GOVERNING PERSONS ON
BOARD SUCH AIRCRAFT
22. The authority citation for part 135
continues to read as follows:
■
Authority: 49 U.S.C. 106(g), 41706, 40113,
44701–44702, 44705, 44709, 44711–44713,
44715–44717, 44722, 45101–45105.
VerDate Nov<24>2008
18:53 May 13, 2009
Jkt 217001
SUMMARY: This rule establishes, amends,
suspends, or revokes Standard
Instrument Approach Procedures
(SIAPs) and associated Takeoff
Minimums and Obstacle Departure
Procedures for operations at certain
airports. These regulatory actions are
PO 00000
Frm 00030
Fmt 4700
Sfmt 4700
needed because of the adoption of new
or revised criteria, or because of changes
occurring in the National Airspace
System, such as the commissioning of
new navigational facilities, adding new
obstacles, or changing air traffic
requirements. These changes are
designed to provide safe and efficient
use of the navigable airspace and to
promote safe flight operations under
instrument flight rules at the affected
airports.
DATES: This rule is effective May 14,
2009. The compliance date for each
SIAP, associated Takeoff Minimums,
and ODP is specified in the amendatory
provisions.
The incorporation by reference of
certain publications listed in the
regulations is approved by the Director
of the Federal Register as of May 14,
2009.
ADDRESSES: Availability of matter
incorporated by reference in the
amendment is as follows:
For Examination—
1. FAA Rules Docket, FAA
Headquarters Building, 800
Independence Avenue, SW.,
Washington, DC 20591;
2. The FAA Regional Office of the
region in which the affected airport is
located;
3. The National Flight Procedures
Office, 6500 South MacArthur Blvd.,
Oklahoma City, OK 73169 or,
4. The National Archives and Records
Administration (NARA). For
information on the availability of this
material at NARA, call 202–741–6030,
or go to:
https://www.archives.gov/
federal_register/
code_of_federal_regulations/
ibr_locations.html.
Availability—All SIAPs are available
online free of charge. Visit nfdc.faa.gov
to register. Additionally, individual
SIAP and Takeoff Minimums and ODP
copies may be obtained from:
1. FAA Public Inquiry Center (APA–
200), FAA Headquarters Building, 800
Independence Avenue, SW.,
Washington, DC 20591; or
2. The FAA Regional Office of the
region in which the affected airport is
located.
FOR FURTHER INFORMATION CONTACT:
Harry J. Hodges, Flight Procedure
Standards Branch (AFS–420) Flight
Technologies and Programs Division,
Flight Standards Service, Federal
Aviation Administration, Mike
Monroney Aeronautical Center, 6500
South MacArthur Blvd., Oklahoma City,
OK 73169 (Mail Address: P.O. Box
25082 Oklahoma City, OK 73125)
telephone: (405) 954–4164.
E:\FR\FM\14MYR1.SGM
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]]>Agencies
[Federal Register Volume 74, Number 92 (Thursday, May 14, 2009)]
[Rules and Regulations]
[Pages 22649-22668]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-11289]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 61, 63, 65, 91, 120, 121, 135
[Docket No. FAA-2008-0937; Amendment Nos. 61-122, 63-37, 65-53, 91-307,
120-0, 121-343, 135-117]
RIN 2120-AJ37
Drug and Alcohol Testing Program
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This action amends the FAA's drug and alcohol regulations to
place them in a new part. The FAA is not making any substantive changes
to the drug and alcohol regulations in this rulemaking.
DATES: Effective Date: July 13, 2009.
FOR FURTHER INFORMATION CONTACT: Rafael Ramos, Office of Aerospace
Medicine, Drug Abatement Division, AAM-800, Federal Aviation
Administration, 800 Independence Avenue, SW., Washington, DC 20591;
telephone (202) 267-8442; facsimile (202) 267-5200; e-mail
drugabatement@faa.gov.
SUPPLEMENTARY INFORMATION:
Authority for Rulemaking
The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of 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 FAA's
authority.
These rules were originally promulgated under the authority
described in Subtitle VII, Part A Chapter 451--Alcohol and Controlled
Substances Testing. Under section 45102, the FAA is charged with
prescribing regulations for air carriers and foreign air carriers to
establish and to conduct preemployment, reasonable suspicion, random,
and post-accident drug and alcohol testing. Some of these rules, for
example those dealing with contract air traffic controllers, were
promulgated under the FAA's general rulemaking authority in 49 U.S.C.
44701(a)(5).
This rule is intended to reorganize the requirements for drug and
alcohol testing into a single part. It also clarifies the rules by, for
example, replacing references to appendices I and J with references to
part 120. It is expected that this rule will simplify locating specific
provisions and changes to those provisions for individuals and entities
required to comply with the FAA's drug and alcohol testing
requirements. For this reason, the changes are within the scope of our
authority and are a reasonable and necessary exercise of our statutory
obligations.
Background
The regulations governing FAA-required drug and alcohol testing
requirements currently are scattered throughout Chapter I of Title 14,
Code of Federal Regulations. Requirements for affected certificated
airmen are located in parts 61, 63, 65, and 67.
[[Page 22650]]
Requirements for affected air carriers and operators are located in
parts 91, 121 and 135. Requirements for affected air traffic control
facilities and air traffic controllers are included in subpart B of
part 65. Requirements for repair stations certificated under part 145,
and contractors, who elect to have drug and alcohol testing programs,
are included in appendices I and J of part 121.
At this time, the FAA is working on a major revision of its drug
and alcohol testing regulations. Given the complexity of that revision
and the time it will take to complete the rulemaking process, the FAA
has concluded that in the interim it makes sense to pull the existing
regulations together in one place. The FAA expects that doing so will
clarify the requirements for testing, and simplify locating specific
provisions and changes to those provisions for individuals and entities
that have drug and alcohol testing programs.
This rulemaking will gather the existing regulations into the new
part, remove them from their existing locations, and provide cross
references in parts 91 and 135 to the new part.
Appendices I and J themselves set forth the requirements for drug
and alcohol testing programs. Some provisions in the current
regulations in appendices I and J are duplicative. For example, the
definitions in the appendices are mostly verbatim duplications. In
addition, some of the terms defined in the appendices I and J are used
in parts 121 and 135. Because the drug and alcohol testing provisions
of 121 and 135 are being moved to new part 120, it makes sense to move
those definitions up to subpart A of new part 120. We are therefore
including all the definitions in section 120.7 of subpart A.
The FAA has begun moving away from using the separate terms
``antidrug program'' and ``alcohol misuse prevention program'' in favor
of ``drug testing program'' and ``alcohol testing program'' where
appropriate. For example, in this rulemaking, we use the term ``drug
testing program'' instead of ``antidrug program'' in Sec. 120.101 and
``alcohol testing program'' instead of ``alcohol misuse prevention
program'' in Sec. 120.21(a). However, the Operations Specifications
A449 relating to drug and alcohol testing is still titled ``Antidrug
and Alcohol Misuse Prevention Program Operations Specifications''.
The language in the rules governing the requirements for part 119
certificate holders to conduct drug and alcohol testing is mostly
identical for both 121 and 135 operations. There is some language that
is unique to operations under part 135. To limit duplication and the
potential for confusion related to having multiple regulations dealing
with the same requirements, the FAA is combining the drug and alcohol
testing requirements in current parts 121 and 135 rather than having
separate part 120 subparts for 121 or 135. Provisions unique to
operations conducted under part 135 are placed at the end of relevant
sections.
Organization of New Part 120
The following table shows the derivation of the regulations
contained in this final rule:
------------------------------------------------------------------------
Based in whole or in part on 14
Final Rule part 120 section or CFR parts 61, 63, 65, 121, and
paragraph 135 sections or paragraphs
------------------------------------------------------------------------
120.11 Refusal to submit to a drug or 61.14 Refusal to submit to a
alcohol test by a part 61 certificate drug or alcohol test.
holder.
120.13 Refusal to submit to a drug or 63.12b Refusal to submit to a
alcohol test by a part 63 certificate drug or alcohol test.
holder.
120.15 Refusal to submit to a drug or 65.23 Refusal to submit to a
alcohol test by a part 65 certificate drug or alcohol test.
holder.
120.17 Use of prohibited drugs......... 65.46 Use of prohibited drugs.
Subpart C 120.19 Misuse of alcohol..... 65.46a Misuse of alcohol.
Subpart C 120.21 Testing for alcohol... 65.46b Testing for alcohol.
120.31 Prohibited drugs................ 121.429 and 135.353 Prohibited
drugs.
120.33 Use of prohibited drugs......... 121.455 and 135.249 Use of
prohibited drugs.
120.35 Testing for prohibited drugs.... 121.457 and 135.251 Testing for
prohibited drugs.
Subpart D 120.37 Misuse of alcohol..... 121.458 and 135.253 Misuse of
alcohol.
Subpart D 120.39 Testing for alcohol... 121.459 and 135.255 Testing for
alcohol.
Part 120 subpart E..................... Part 121 appendix I.
Part 120 subpart F..................... Part 121 appendix J.
------------------------------------------------------------------------
Regulatory Evaluation, Regulatory Flexibility Determination,
International Trade Analysis, and Unfunded Mandates Assessment
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs that each Federal agency
shall propose or adopt a regulation only upon a reasoned determination
that the benefits of the intended regulation justify its costs. Second,
the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires
agencies to analyze the economic impact of regulatory changes on small
entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits
agencies from setting standards that create unnecessary obstacles to
the foreign commerce of the United States. In developing U.S.
standards, this Trade Act requires agencies to consider international
standards and, where appropriate, that they be the basis of U.S.
standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L.
104-4) requires agencies to prepare a written assessment of the costs,
benefits, and other effects of proposed or final rules that include a
Federal mandate likely to result in the expenditure by State, local, or
tribal governments, in the aggregate, or by the private sector, of $100
million or more annually (adjusted for inflation with base year of
1995).
In conducting these analyses, FAA has determined this rule--(1) Has
benefits which do justify its costs, is not a significant regulatory
action as defined in the Executive Order and is not significant as
defined in DOT's Regulatory Policies and Procedures; (2) will not have
a significant impact on a substantial number of small entities; (3)
will have no effect on barriers to international trade; and (4) does
not impose an unfunded mandate on state, local, or tribal governments,
or on the private sector.
Department of Transportation Order DOT 2100.5 prescribes policies
and procedures for simplification, analysis, and review of regulations.
If the expected cost impact is so minimal that a proposed or final rule
does not warrant a full evaluation, this order permits that a statement
to that effect
[[Page 22651]]
and the basis for it be included in the preamble if a full regulatory
evaluation of the cost and benefits is not prepared. Such a
determination has been made for this final rule. The reasoning for this
determination follows: The FAA is not making any substantive changes to
the drug and alcohol regulations in this rulemaking. This action amends
the FAA's drug and alcohol regulations to place them in a new part.
This rule imposes no costs and provides no accrual of benefits; and
therefore, this rule will have no economic impact.
Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) 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
regulation.'' To achieve that principle, the RFA requires agencies to
solicit and consider flexible regulatory proposals and 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 Act.
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 1980 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 rule imposes no costs and provides no accrual of benefits; and
therefore, this rule will have no economic impact. This action amends
the FAA's drug and alcohol regulations to place them in a new part. The
FAA is not making any substantive changes to the drug and alcohol
regulations in this rulemaking. Therefore, as the Acting FAA
Administrator, I certify that this rule will not have a significant
economic impact on a substantial number of small entities.
International Trade Analysis
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal
agencies from establishing standards or engaging in related activities
that create unnecessary obstacles to the foreign commerce of the United
States. Pursuant to these Acts, the establishment of standards is not
considered an unnecessary obstacle to the foreign commerce of the
United States, so long as the standard has a legitimate domestic
objective, such as the protection of safety, and does not operate in a
manner that excludes imports that meet this objective. 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
will have only a domestic impact and therefore will not create
unnecessary obstacles to the foreign commerce of the United States.
Unfunded Mandates Determination
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) 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 an expenditure of $100 million or more
(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 $136.1 million in lieu of
$100 million.
This final rule does not contain such a mandate. The requirements
of Title II do not apply.
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 rulemaking action qualifies for the categorical
exclusion identified in paragraph 307(k) 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 (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.
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 Federal Government and the States, or on the
distribution of power and responsibilities among the various levels of
government, and, therefore, does not have federalism implications.
International Civil Aviation Organization (ICAO) and Joint Aviation
Regulations
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to comply with ICAO
Standards and Recommended Practices to the maximum extent practicable.
The FAA has determined that this final rule does not conflict with any
international agreement of the United States.
Paperwork Reduction Act
Information collection requirements associated with the final rule
have been approved previously by the Office of Management and Budget
(OMB) under the provisions of the Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)) and have been assigned OMB Control Numbers 2105-0529,
2120-0535, 2120-0685, 2120-0689.
Good Cause Justification for Adoption Without Prior Notice
We find good cause exists under 5 U.S.C. 553(b)(B) and (d)(3) to
implement this final rule immediately without prior notice and comment.
This rule merely reorganizes existing regulations governing drug and
alcohol testing into their own part and makes clarifying changes to the
existing parts of the rules necessitated by the reorganization.
Proprietary or Confidential Business Information
Do not file in the docket information that you consider to be
proprietary or confidential business information. Send or deliver this
information directly to the person identified in the FOR FURTHER
INFORMATION CONTACT section of this document. You must mark the
information that you consider proprietary or confidential. If you send
[[Page 22652]]
the information on a disk or CD-ROM, mark the outside of the disk or
CD-ROM and also identify electronically within the disk or CD-ROM the
specific information that is proprietary or confidential.
Under Sec. 11.35(b), when we are aware of proprietary information
filed with a comment, we do not place it in the docket. We hold it in a
separate file to which the public does not have access, and place a
note in the docket that we have received it. If we receive a request to
examine or copy this information, we treat it as any other request
under the Freedom of Information Act (5 U.S.C. 552). We process such a
request under the DOT procedures found in 49 CFR part 7.
Availability of Rulemaking Documents
You can get an electronic copy of rulemaking documents using the
Internet by--
1. Searching the Federal eRulemaking Portal (https://www.regulations.gov);
2. Visiting the FAA's Regulations and Policies Web page at https://www.faa.gov/regulation_policies/; or
3. Accessing the Government Printing Office's Web page at https://www.gpoaccess.gov/fr/.
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 (202) 267-9680. Make
sure to identify the amendment number or docket number of this
rulemaking.
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit
https://DocketsInfo.dot.gov.
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. If you are a small entity and you have a question
regarding this document, you may contact your local FAA official, or
the person listed under the FOR FURTHER INFORMATION CONTACT heading at
the beginning of the preamble. You can find out more about SBRFA on the
Internet at https://www.faa.gov/regulations_policies/rulemaking/sbre_act/.
List of Subjects
14 CFR Part 61
Aircraft, Airmen, Alcohol abuse, Aviation safety, Drug abuse,
Recreation and recreation areas, Reporting and recordkeeping
requirements, Security measures, Teachers.
14 CFR Part 63
Aircraft, Airmen, Alcohol abuse, Aviation safety, Drug abuse,
Navigation (air), Reporting and recordkeeping requirements, Security
measures.
14 CFR Part 65
Air traffic controllers, Aircraft, Airmen, Airports, Alcohol abuse,
Aviation safety, Drug abuse, Reporting and recordkeeping requirements,
Security measures.
14 CFR Part 91
Afghanistan, Agriculture, Air traffic control, Aircraft, Airmen,
Airports, Aviation safety, Canada, Cuba, Ethiopia, Freight, Mexico,
Noise control, Political candidates, Reporting and recordkeeping
requirements, Yugoslavia.
14 CFR Part 120
Alcoholism, Air carriers, Air traffic control, Airmen, Alcohol
abuse, Alcohol testing, Aviation safety, Charter flights, Commercial
air tour operators, Contract air traffic controllers, Drug abuse, Drug
testing, Operators, Reporting and recordkeeping requirements, Safety,
Safety-sensitive, Transportation.
14 CFR Part 121
Air carriers, Aircraft, Airmen, Alcohol abuse, Aviation safety,
Charter flights, Drug abuse, Drug testing, Reporting and recordkeeping
requirements, Safety, Transportation.
14 CFR Part 135
Air taxis, Aircraft, Airmen, Alcohol abuse, Aviation safety, Drug
abuse, Drug testing, Reporting and recordkeeping requirements.
The Final Rule
0
In consideration of the foregoing, the Federal Aviation Administration
adds part 120 and amends parts 61, 63, 65, 91, 121, and 135 of Title 14
of the Code of Federal Regulations (14 CFR parts 61, 63, 65, 91, 121,
135), as follows:
PART 61--CERTIFICATION: PILOTS, FLIGHT INSTRUCTORS, AND GROUND
INSTRUCTORS
0
1. The authority citation for part 61 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709-
44711, 45102-45103, 45301-45302.
Sec. 61.14 [Removed and Reserved]
0
2. Section 61.14 is removed and reserved.
PART 63--CERTIFICATION: FLIGHT CREWMEMBERS OTHER THAN PILOTS
0
3. The authority citation for part 63 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709-
44711, 45102-45103, 45301-45302.
Sec. 63.12b [Removed and Reserved]
0
4. Section 63.12b is removed and reserved.
PART 65--CERTIFICATION: AIRMEN OTHER THAN FLIGHT CREWMEMBERS
0
5. The authority citation for part 65 continues to read as follows:
Authority: 49 U.S.C. 106(g). 40113, 44701-44703, 44707, 44709-
44711, 45102-45103, 45301-45302.
Sec. 65.23 [Removed and Reserved]
0
6. Section 65.23 is removed and reserved.
Sec. 65.46 [Removed and Reserved]
0
7. Section 65.46 is removed and reserved.
Sec. 65.46a [Removed and Reserved]
0
8. Section 65.46a is removed and reserved.
Sec. 65.46b [Removed and Reserved]
0
9. Section 65.46b is removed and reserved.
PART 91--GENERAL OPERATING AND FLIGHT RULES
0
10. The authority citation for part 91 continues to read as follows:
Authority: 49 U.S.C. 106(g), 1155, 40103, 40113, 40120, 44101,
44111, 44701, 44704, 44709, 44711, 44712, 44715, 44716, 44717,
44722, 46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-
47531, articles 12 and 29 of the Convention on International Civil
Aviation (61 Stat. 1180).
0
11. Section 91.147(d) is revised to read as follows:
Sec. 91.147 Passenger-carrying flights for compensation or hire.
* * * * *
(d) The Operator must register and implement its drug and alcohol
testing programs in accordance with part 120 of this chapter.
* * * * *
[[Page 22653]]
0
12. Section 91.1047(c)(3) is revised to read as follows:
Sec. 91.1047 Drug and alcohol misuse education program.
* * * * *
(c) * * *
(3) The degree to which the program manager's company testing
program is comparable to the federally mandated drug and alcohol
testing program required under part 120 of this chapter regarding the
information in paragraphs (c)(1) and (c)(2) of this section.
* * * * *
0
13. Add Part 120 to read as follows:
PART 120--DRUG AND ALCOHOL TESTING PROGRAM
Subpart A--General
Sec.
120.1 Applicability.
120.3 Purpose.
120.5 Procedures.
120.7 Definitions.
Subpart B--Individuals Certificated Under Parts 61, 63, and 65
120.11 Refusal to submit to a drug or alcohol test by a Part 61
certificate holder.
120.13 Refusal to submit to a drug or alcohol test by a Part 63
certificate holder.
120.15 Refusal to submit to a drug or alcohol test by a Part 65
certificate holder.
Subpart C--Air Traffic Controllers
120.17 Use of prohibited drugs.
120.19 Misuse of alcohol.
120.21 Testing for alcohol.
Subpart D--Part 119 Certificate Holders Authorized To Conduct
Operations Under Part 121 or Part 135 or Operators Under Sec. 91.147
of This Chapter and Safety-Sensitive Employees
120.31 Prohibited drugs.
120.33 Use of prohibited drugs.
120.35 Testing for prohibited drugs.
120.37 Misuse of alcohol.
120.39 Testing for alcohol.
Subpart E--Drug Testing Program Requirements
120.101 Scope.
120.103 General.
120.105 Employees who must be tested.
120.107 Substances for which testing must be conducted.
120.109 Types of drug testing required.
120.111 Administrative and other matters.
120.113 Medical Review Officer, Substance Abuse Professional, and
employer responsibilities.
120.115 Employee Assistance Program (EAP).
120.117 Implementing a drug testing program.
120.119 Annual reports.
120.121 Preemption.
120.123 Drug testing outside of the territory of the United States.
120.125 Waivers from 49 CFR 40.21.
Subpart F--Alcohol Testing Program Requirements
120.201 Scope.
120.203 General.
120.205 Preemption of State and local laws.
120.207 Other requirements imposed by employers.
120.209 Requirement for notice.
120.211 Applicable Federal regulations.
120.213 Falsification.
120.215 Covered employees.
120.217 Tests required.
120.219 Handling of test results, record retention, and
confidentiality.
120.221 Consequences for employees engaging in alcohol-related
conduct.
120.223 Alcohol misuse information, training, and substance abuse
professionals.
120.225 How to implement an alcohol testing program.
120.227 Employees located outside the U.S.
Authority: 49 U.S.C. 106(g), 40101-40103, 40113, 40120, 41706,
41721, 44106, 44701, 44702, 44703, 44709, 44710, 44711, 45101-45105,
46105, 46306.
Subpart A--General
Sec. 120.1 Applicability.
This part applies to the following persons:
(a) All air carriers and operators certificated under part 119 of
this chapter authorized to conduct operations under part 121 or part
135 of this chapter, all air traffic control facilities not operated by
the FAA or by or under contract to the U.S. military; and all operators
as defined in 14 CFR 91.147.
(b) All individuals who perform, either directly or by contract, a
safety-sensitive function listed in subpart E or subpart F of this
part.
(c) All part 145 certificate holders who perform safety-sensitive
functions and elect to implement a drug and alcohol testing program
under this part.
(d) All contractors who elect to implement a drug and alcohol
testing program under this part.
Sec. 120.3 Purpose.
The purpose of this part is to establish a program designed to help
prevent accidents and injuries resulting from the use of prohibited
drugs or the misuse of alcohol by employees who perform safety-
sensitive functions in aviation.
Sec. 120.5 Procedures.
Each employer having a drug and alcohol testing program under this
part must ensure that all drug and alcohol testing conducted pursuant
to this part complies with the procedures set forth in 49 CFR part 40.
Sec. 120.7 Definitions.
For the purposes of this part, the following definitions apply:
(a) Accident means an occurrence associated with the operation of
an aircraft which takes place between the time any individual boards
the aircraft with the intention of flight and all such individuals have
disembarked, and in which any individual suffers death or serious
injury, or in which the aircraft receives substantial damage.
(b) Alcohol means the intoxicating agent in beverage alcohol, ethyl
alcohol, or other low molecular weight alcohols, including methyl or
isopropyl alcohol.
(c) Alcohol concentration (or content) means the alcohol in a
volume of breath expressed in terms of grams of alcohol per 210 liters
of breath as indicated by an evidential breath test under subpart F of
this part.
(d) Alcohol use means the consumption of any beverage, mixture, or
preparation, including any medication, containing alcohol.
(e) Contractor is an individual or company that performs a safety-
sensitive function by contract for an employer or another contractor.
(f) Covered employee means an individual who performs, either
directly or by contract, a safety-sensitive function listed in
Sec. Sec. 120.105 and 120.215 for an employer (as defined in paragraph
(i) of this section). For purposes of pre-employment testing only, the
term ``covered employee'' includes an individual applying to perform a
safety-sensitive function.
(g) DOT agency means an agency (or ``operating administration'') of
the United States Department of Transportation administering
regulations requiring drug testing (14 CFR part 61 et al.; 46 CFR part
16; 49 CFR parts 199, 219, and 382) in accordance with 49 CFR part 40.
(h) Employee is an individual who is hired, either directly or by
contract, to perform a safety-sensitive function for an employer, as
defined in paragraph (i) of this section. An employee is also an
individual who transfers into a position to perform a safety-sensitive
function for an employer.
(i) Employer is a part 119 certificate holder with authority to
operate under parts 121 and/or 135 of this chapter, an operator as
defined in Sec. 91.147 of this chapter, or an air traffic control
facility not operated by the FAA or by or under contract to the U.S.
Military. An employer may use a contract employee who is not included
under that employer's FAA-mandated drug testing
[[Page 22654]]
program to perform a safety-sensitive function only if that contract
employee is included under the contractor's FAA-mandated drug testing
program and is performing a safety-sensitive function on behalf of that
contractor (i.e., within the scope of employment with the contractor.)
(j) Hire means retaining an individual for a safety-sensitive
function as a paid employee, as a volunteer, or through barter or other
form of compensation.
(k) Performing (a safety-sensitive function): an employee is
considered to be performing a safety-sensitive function during any
period in which he or she is actually performing, ready to perform, or
immediately available to perform such function.
(l) Positive rate for random drug testing means the number of
verified positive results for random drug tests conducted under subpart
E of this part, plus the number of refusals of random drug tests
required by subpart E of this part, divided by the total number of
random drug test results (i.e., positives, negatives, and refusals)
under subpart E of this part.
(m) Prohibited drug means marijuana, cocaine, opiates,
phencyclidine (PCP), and amphetamines, as specified in 49 CFR 40.85.
(n) Refusal to submit to alcohol test means that a covered employee
has engaged in conduct including but not limited to that described in
49 CFR 40.261, or has failed to remain readily available for post-
accident testing as required by subpart F of this part.
(o) Refusal to submit to drug test means that an employee engages
in conduct including but not limited to that described in 49 CFR
40.191.
(p) Safety-sensitive function means a function listed in Sec. Sec.
120.105 and 120.215.
(q) Verified negative drug test result means a drug test result
from an HHS-certified laboratory that has undergone review by an MRO
and has been determined by the MRO to be a negative result.
(r) Verified positive drug test result means a drug test result
from an HHS-certified laboratory that has undergone review by an MRO
and has been determined by the MRO to be a positive result.
(s) Violation rate for random alcohol testing means the number of
0.04, and above, random alcohol confirmation test results conducted
under subpart F of this part, plus the number of refusals of random
alcohol tests required by subpart F of this part, divided by the total
number of random alcohol screening tests (including refusals) conducted
under subpart F of this part.
Subpart B--Individuals Certificated Under Parts 61, 63, and 65
Sec. 120.11 Refusal to submit to a drug or alcohol test by a Part 61
certificate holder.
(a) This section applies to all individuals who hold a certificate
under part 61 of this chapter and who are subject to drug and alcohol
testing under this part.
(b) Refusal by the holder of a certificate issued under part 61 of
this chapter to take a drug or alcohol test required under the
provisions of this part is grounds for:
(1) Denial of an application for any certificate, rating, or
authorization issued under part 61 of this chapter for a period of up
to 1 year after the date of such refusal; and
(2) Suspension or revocation of any certificate, rating, or
authorization issued under part 61 of this chapter.
Sec. 120.13 Refusal to submit to a drug or alcohol test by a Part 63
certificate holder.
(a) This section applies to all individuals who hold a certificate
under part 63 of this chapter and who are subject to drug and alcohol
testing under this part.
(b) Refusal by the holder of a certificate issued under part 63 of
this chapter to take a drug or alcohol test required under the
provisions of this part is grounds for:
(1) Denial of an application for any certificate, rating, or
authorization issued under part 63 of this chapter for a period of up
to 1 year after the date of such refusal; and
(2) Suspension or revocation of any certificate, rating, or
authorization issued under part 63 of this chapter.
Sec. 120.15 Refusal to submit to a drug or alcohol test by a Part 65
certificate holder.
(a) This section applies to all individuals who hold a certificate
under part 65 of this chapter and who are subject to drug and alcohol
testing under this part.
(b) Refusal by the holder of a certificate issued under part 65 of
this chapter to take a drug or alcohol test required under the
provisions of this part is grounds for:
(1) Denial of an application for any certificate, rating, or
authorization issued under part 65 of this chapter for a period of up
to 1 year after the date of such refusal; and
(2) Suspension or revocation of any certificate, rating, or
authorization issued under part 65 of this chapter.
Subpart C--Air Traffic Controllers
Sec. 120.17 Use of prohibited drugs.
(a) Each employer shall provide each employee performing a function
listed in subpart E of this part, and his or her supervisor, with the
training specified in that subpart. No employer may use any contractor
to perform an air traffic control function unless that contractor
provides each of its employees performing that function for the
employer, and his or her supervisor, with the training specified in
subpart E of this part.
(b) No employer may knowingly use any individual to perform, nor
may any individual perform for an employer, either directly or by
contract, any air traffic control function while that individual has a
prohibited drug, as defined in subpart E of this part, in his or her
system.
(c) No employer shall knowingly use any individual to perform, nor
may any individual perform for an employer, either directly or by
contract, any air traffic control function if the individual has a
verified positive drug test result on, or has refused to submit to, a
drug test required by subpart E of this part and the individual has not
met the requirements of subpart E of this part for returning to the
performance of safety-sensitive duties.
(d) Each employer shall test each of its employees who perform any
air traffic control function in accordance with subpart E of this part.
No employer may use any contractor to perform any air traffic control
function unless that contractor tests each employee performing such a
function for the employer in accordance with subpart E of this part.
Sec. 120.19 Misuse of alcohol.
(a) This section applies to covered employees who perform air
traffic control duties directly or by contract for an employer that is
an air traffic control facility not operated by the FAA or the US
military.
(b) Alcohol concentration. No covered employee shall report for
duty or remain on duty requiring the performance of safety-sensitive
functions while having an alcohol concentration of 0.04 or greater. No
employer having actual knowledge that an employee has an alcohol
concentration of 0.04 or greater shall permit the employee to perform
or continue to perform safety-sensitive functions.
(c) On-duty use. No covered employee shall use alcohol while
performing safety-sensitive functions. No employer having actual
knowledge that a covered employee is using alcohol while performing
safety-sensitive functions shall permit the employee to perform or
continue to perform safety-sensitive functions.
[[Page 22655]]
(d) Pre-duty use. No covered employee shall perform air traffic
control duties within 8 hours after using alcohol. No employer having
actual knowledge that such an employee has used alcohol within 8 hours
shall permit the employee to perform or continue to perform air traffic
control duties.
(e) Use following an accident. No covered employee who has actual
knowledge of an accident involving an aircraft for which he or she
performed a safety-sensitive function at or near the time of the
accident shall use alcohol for 8 hours following the accident, unless
he or she has been given a post-accident test under subpart F of this
part or the employer has determined that the employee's performance
could not have contributed to the accident.
(f) Refusal to submit to a required alcohol test. A covered
employee may not refuse to submit to any alcohol test required under
subpart F of this part. An employer may not permit an employee who
refuses to submit to such a test to perform or continue to perform
safety-sensitive functions.
Sec. 120.21 Testing for alcohol.
(a) Each air traffic control facility not operated by the FAA or
the U.S. military must establish an alcohol testing program in
accordance with the provisions of subpart F of this part.
(b) No employer shall use any individual who meets the definition
of covered employee in subpart A of this part to perform a safety-
sensitive function listed in subpart F of this part unless that
individual is subject to testing for alcohol misuse in accordance with
the provisions of that subpart.
Subpart D--Part 119 Certificate Holders Authorized To Conduct
Operations under Part 121 or Part 135 or Operators Under Sec.
91.147 of This Chapter and Safety-Sensitive Employees
Sec. 120.31 Prohibited drugs.
(a) Each certificate holder or operator shall provide each employee
performing a function listed in subpart E of this part, and his or her
supervisor, with the training specified in that subpart.
(b) No certificate holder or operator may use any contractor to
perform a function listed in subpart E of this part unless that
contractor provides each of its employees performing that function for
the certificate holder or operator, and his or her supervisor, with the
training specified in that subpart.
Sec. 120.33 Use of prohibited drugs.
(a) This section applies to individuals who perform a function
listed in subpart E of this part for a certificate holder or operator.
For the purpose of this section, an individual who performs such a
function pursuant to a contract with the certificate holder or the
operator is considered to be performing that function for the
certificate holder or the operator.
(b) No certificate holder or operator may knowingly use any
individual to perform, nor may any individual perform for a certificate
holder or an operator, either directly or by contract, any function
listed in subpart E of this part while that individual has a prohibited
drug, as defined in that subpart, in his or her system.
(c) No certificate holder or operator shall knowingly use any
individual to perform, nor shall any individual perform for a
certificate holder or operator, either directly or by contract, any
safety-sensitive function if that individual has a verified positive
drug test result on, or has refused to submit to, a drug test required
by subpart E of this part and the individual has not met the
requirements of that subpart for returning to the performance of
safety-sensitive duties.
Sec. 120.35 Testing for prohibited drugs.
(a) Each certificate holder or operator shall test each of its
employees who perform a function listed in subpart E of this part in
accordance with that subpart.
(b) Except as provided in paragraph (c) of this section, no
certificate holder or operator may use any contractor to perform a
function listed in subpart E of this part unless that contractor tests
each employee performing such a function for the certificate holder or
operator in accordance with that subpart.
(c) If a certificate holder conducts an on-demand operation into an
airport at which no maintenance providers are available that are
subject to the requirements of subpart E of this part and emergency
maintenance is required, the certificate holder may use individuals not
meeting the requirements of paragraph (b) of this section to provide
such emergency maintenance under both of the following conditions:
(1) The certificate holder must give written notification of the
emergency maintenance to the Drug Abatement Program Division, AAM-800,
800 Independence Avenue, SW., Washington, DC 20591, within 10 days
after being provided same in accordance with this paragraph. A
certificate holder must retain copies of all such written notifications
for two years.
(2) The aircraft must be reinspected by maintenance personnel who
meet the requirements of paragraph (b) of this section when the
aircraft is next at an airport where such maintenance personnel are
available.
(d) For purposes of this section, emergency maintenance means
maintenance that--
(1) Is not scheduled and
(2) Is made necessary by an aircraft condition not discovered prior
to the departure for that location.
Sec. 120.37 Misuse of alcohol.
(a) General. This section applies to covered employees who perform
a function listed in subpart F of this part for a certificate holder.
For the purpose of this section, an individual who meets the definition
of covered employee in subpart F of this part is considered to be
performing the function for the certificate holder.
(b) Alcohol concentration. No covered employee shall report for
duty or remain on duty requiring the performance of safety-sensitive
functions while having an alcohol concentration of 0.04 or greater. No
certificate holder having actual knowledge that an employee has an
alcohol concentration of 0.04 or greater shall permit the employee to
perform or continue to perform safety-sensitive functions.
(c) On-duty use. No covered employee shall use alcohol while
performing safety-sensitive functions. No certificate holder having
actual knowledge that a covered employee is using alcohol while
performing safety-sensitive functions shall permit the employee to
perform or continue to perform safety-sensitive functions.
(d) Pre-duty use. (1) No covered employee shall perform flight
crewmember or flight attendant duties within 8 hours after using
alcohol. No certificate holder having actual knowledge that such an
employee has used alcohol within 8 hours shall permit the employee to
perform or continue to perform the specified duties.
(2) No covered employee shall perform safety-sensitive duties other
than those specified in paragraph (d)(1) of this section within 4 hours
after using alcohol. No certificate holder having actual knowledge that
such an employee has used alcohol within 4 hours shall permit the
employee to perform or to continue to perform safety-sensitive
functions.
(e) Use following an accident. No covered employee who has actual
knowledge of an accident involving an aircraft for which he or she
performed a safety-sensitive function at or near the
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time of the accident shall use alcohol for 8 hours following the
accident, unless he or she has been given a post-accident test under
subpart F of this part, or the employer has determined that the
employee's performance could not have contributed to the accident.
(f) Refusal to submit to a required alcohol test. A covered
employee must not refuse to submit to any alcohol test required under
subpart F of this part. A certificate holder must not permit an
employee who refuses to submit to such a test to perform or continue to
perform safety-sensitive functions.
Sec. 120.39 Testing for alcohol.
(a) Each certificate holder must establish an alcohol testing
program in accordance with the provisions of subpart F of this part.
(b) Except as provided in paragraph (c) of this section, no
certificate holder or operator may use any individual who meets the
definition of covered employee in subpart A of this part to perform a
safety-sensitive function listed in that subpart F of this part unless
that individual is subject to testing for alcohol misuse in accordance
with the provisions of that subpart.
(c) If a certificate holder conducts an on-demand operation into an
airport at which no maintenance providers are available that are
subject to the requirements of subpart F of this part and emergency
maintenance is required, the certificate holder may use individuals not
meeting the requirements of paragraph (b) of this section to provide
such emergency maintenance under both of the following conditions:
(1) The certificate holder must give written notification of the
emergency maintenance to the Drug Abatement Program Division, AAM-800,
800 Independence Avenue, SW., Washington, DC 20591, within 10 days
after being provided same in accordance with this paragraph. A
certificate holder must retain copies of all such written notifications
for two years.
(2) The aircraft must be reinspected by maintenance personnel who
meet the requirements of paragraph (b) of this section when the
aircraft is next at an airport where such maintenance personnel are
available.
(d) For purposes of this section, emergency maintenance means
maintenance that--
(1) Is not scheduled and
(2) Is made necessary by an aircraft condition not discovered prior
to the departure for that location.
Subpart E--Drug Testing Program Requirements
Sec. 120.101 Scope.
This subpart contains the standards and components that must be
included in a drug testing program required by this part.
Sec. 120.103 General.
(a) Purpose. The purpose of this subpart is to establish a program
designed to help prevent accidents and injuries resulting from the use
of prohibited drugs by employees who perform safety-sensitive
functions.
(b) DOT procedures. (1) Each employer shall ensure that drug
testing programs conducted pursuant to 14 CFR parts 65, 91, 121, and
135 comply with the requirements of this subpart and the ``Procedures
for Transportation Workplace Drug Testing Programs'' published by the
Department of Transportation (DOT) (49 CFR part 40).
(2) An employer may not use or contract with any drug testing
laboratory that is not certified by the Department of Health and Human
Services (HHS) under the National Laboratory Certification Program.
(c) Employer responsibility. As an employer, you are responsible
for all actions of your officials, representatives, and service agents
in carrying out the requirements of this subpart and 49 CFR part 40.
(d) Applicable Federal Regulations. The following applicable
regulations appear in 49 CFR or 14 CFR:
(1) 49 CFR Part 40--Procedures for Transportation Workplace Drug
Testing Programs
(2) 14 CFR:
(i) Sec. 67.107--First-Class Airman Medical Certificate, Mental.
(ii) Sec. 67.207--Second-Class Airman Medical Certificate, Mental.
(iii) Sec. 67.307--Third-Class Airman Medical Certificate, Mental.
(iv) Sec. 91.147--Passenger carrying flight for compensation or
hire.
(e) Falsification. No individual may make, or cause to be made, any
of the following:
(1) Any fraudulent or intentionally false statement in any
application of a drug testing program.
(2) Any fraudulent or intentionally false entry in any record or
report that is made, kept, or used to show compliance with this part.
(3) Any reproduction or alteration, for fraudulent purposes, of any
report or record required to be kept by this part.
Sec. 120.105 Employees who must be tested.
Each employee, including any assistant, helper, or individual in a
training status, who performs a safety-sensitive function listed in
this section directly or by contract (including by subcontract at any
tier) for an employer as defined in this subpart must be subject to
drug testing under a drug testing program implemented in accordance
with this subpart. This includes full-time, part-time, temporary, and
intermittent employees regardless of the degree of supervision. The
safety-sensitive functions are:
(a) Flight crewmember duties.
(b) Flight attendant duties.
(c) Flight instruction duties.
(d) Aircraft dispatcher duties.
(e) Aircraft maintenance and preventive maintenance duties.
(f) Ground security coordinator duties.
(g) Aviation screening duties.
(h) Air traffic control duties.
Sec. 120.107 Substances for which testing must be conducted.
Each employer shall test each employee who performs a safety-
sensitive function for evidence of marijuana, cocaine, opiates,
phencyclidine (PCP), and amphetamines during each test required by
Sec. 120.109.
Sec. 120.109 Types of drug testing required.
Each employer shall conduct the types of testing described in this
section in accordance with the procedures set forth in this subpart and
the DOT ``Procedures for Transportation Workplace Drug Testing
Programs'' (49 CFR part 40).
(a) Pre-employment drug testing. (1) No employer may hire any
individual for a safety-sensitive function listed in Sec. 120.105
unless the employer first conducts a pre-employment test and receives a
verified negative drug test result for that individual.
(2) No employer may allow an individual to transfer from a
nonsafety-sensitive to a safety-sensitive function unless the employer
first conducts a pre-employment test and receives a verified negative
drug test result for the individual.
(3) Employers must conduct another pre-employment test and receive
a verified negative drug test result before hiring or transferring an
individual into a safety-sensitive function if more than 180 days
elapse between conducting the pre-employment test required by
paragraphs (a)(1) or (2) of this section and hiring or transferring the
individual into a safety-sensitive function, resulting in that
individual being brought under an FAA drug testing program.
(4) If the following criteria are met, an employer is permitted to
conduct a pre-
[[Page 22657]]
employment test, and if such a test is conducted, the employer must
receive a negative test result before putting the individual into a
safety-sensitive function:
(i) The individual previously performed a safety-sensitive function
for the employer and the employer is not required to pre-employment
test the individual under paragraphs (a)(1) or (2) of this section
before putting the individual to work in a safety-sensitive function;
(ii) The employer removed the individual from the employer's random
testing program conducted under this subpart for reasons other than a
verified positive test result on an FAA-mandated drug test or a refusal
to submit to such testing; and
(iii) The individual will be returning to the performance of a
safety-sensitive function.
(5) Before hiring or transferring an individual to a safety-
sensitive function, the employer must advise each individual that the
individual will be required to undergo pre-employment testing in
accordance with this subpart, to determine the presence of marijuana,
cocaine, opiates, phencyclidine (PCP), and amphetamines, or a
metabolite of those drugs in the individual's system. The employer
shall provide this same notification to each individual required by the
employer to undergo pre-employment testing under paragraph (a)(4) of
this section.
(b) Random drug testing. (1) Except as provided in paragraphs
(b)(2) through (b)(4) of this section, the minimum annual percentage
rate for random drug testing shall be 50 percent of covered employees.
(2) The Administrator's decision to increase or decrease the
minimum annual percentage rate for random drug testing is based on the
reported positive rate for the entire industry. All information used
for this determination is drawn from the statistical reports required
by Sec. 120.119. In order to ensure reliability of the data, the
Administrator considers the quality and completeness of the reported
data, may obtain additional information or reports from employers, and
may make appropriate modifications in calculating the industry positive
rate. Each year, the Administrator will publish in the Federal Register
the minimum annual percentage rate for random drug testing of covered
employees. The new minimum annual percentage rate for random drug
testing will be applicable starting January 1 of the calendar year
following publication.
(3) When the minimum annual percentage rate for random drug testing
is 50 percent, the Administrator may lower this rate to 25 percent of
all covered employees if the Administrator determines that the data
received under the reporting requirements of this subpart for two
consecutive calendar years indicate that the reported positive rate is
less than 1.0 percent.
(4) When the minimum annual percentage rate for random drug testing
is 25 percent, and the data received under the reporting requirements
of this subpart for any calendar year indicate that the reported
positive rate is equal to or greater than 1.0 percent, the
Administrator will increase the minimum annual percentage rate for
random drug testing to 50 percent of all covered employees.
(5) The selection of employees for random drug testing shall be
made by a scientifically valid method, such as a random-number table or
a computer-based random number generator that is matched with
employees' Social Security numbers, payroll identification numbers, or
other comparable identifying numbers. Under the selection process used,
each covered employee shall have an equal chance of being tested each
time selections are made.
(6) As an employer, you must select and test a percentage of
employees at least equal to the minimum annual percentage rate each
year.
(i) As an employer, to determine whether you have met the minimum
annual percentage rate, you must divide the number of random testing
results for safety-sensitive employees by the average number of safety-
sensitive employees eligible for random testing.
(A) To calculate whether you have met the annual minimum percentage
rate, count all random positives, random negatives, and random refusals
as your ``random testing results.''
(B) To calculate the average number of safety-sensitive employees
eligible for random testing throughout the year, add the total number
of safety-sensitive employees eligible for testing during each random
testing period for the year and divide that total by the number of
random testing periods. Only safety-sensitive employees are to be in an
employer's random testing pool, and all safety-sensitive employees must
be in the random pool. If you are an employer conducting random testing
more often than once per month (e.g., you select daily, weekly, bi-
weekly) you do not need to compute this total number of safety-
sensitive employees more than on a once per month basis.
(ii) As an employer, you may use a service agent to perform random
selections for you, and your safety-sensitive employees may be part of
a larger random testing pool of safety-sensitive employees. However,
you must ensure that the service agent you use is testing at the
appropriate percentage established for your industry and that only
safety-sensitive employees are in the random testing pool. For example:
(A) If the service agent has your employees in a random testing
pool for your company alone, you must ensure that the testing is
conducted at least at the minimum annual percentage rate under this
part.
(B) If the service agent has your employees in a random testing
pool combined with other FAA-regulated companies, you must ensure that
the testing is conducted at least at the minimum annual percentage rate
under this part.
(C) If the service agent has your employees in a random testing
pool combined with other DOT-regulated companies, you must ensure that
the testing is conducted at least at the highest rate required for any
DOT-regulated company in the pool.
(7) Each employer shall ensure that random drug tests conducted
under this subpart are unannounced and that the dates for administering
random tests are spread reasonably throughout the calendar year.
(8) Each employer shall require that each safety-sensitive employee
who is notified of selection for random drug testing proceeds to the
collection site immediately; provided, however, that if the employee is
performing a safety-sensitive function at the time of the notification,
the employer shall instead ensure that the employee ceases to perform
the safety-sensitive function and proceeds to the collection site as
soon as possible.
(9) If a given covered employee is subject to random drug testing
under the drug testing rules of more than one DOT agency, the employee
shall be subject to random drug testing at the percentage rate
established for the calendar year by the DOT agency regulating more
than 50 percent of the employee's function.
(10) If an employer is required to conduct random drug testing
under the drug testing rules of more than one DOT agency, the employer
may--
(i) Establish separate pools for random selection, with each pool
containing the covered employees who are subject to testing at the same
required rate; or
(ii) Randomly select covered employees for testing at the highest
percentage rate established for the calendar year by any DOT agency to
which the employer is subject.
[[Page 22658]]
(11) An employer required to conduct random drug testing under the
anti-drug rules of more than one DOT agency shall provide each such
agency access to the employer's records of random drug testing, as
determined to be necessary by the agency to ensure the employer's
compliance with the rule.
(c) Post-accident drug testing. Each employer shall test each
employee who performs a safety-sensitive function for the presence of
marijuana, cocaine, opiates, phencyclidine (PCP), and amphetamines, or
a metabolite of those drugs in the employee's system if that employee's
performance either contributed to an accident or can not be completely
discounted as a contributing factor to the accident. The employee shall
be tested as soon as possible but not later than 32 hours after the
accident. The decision not to administer a test under this section must
be based on a determination, using the best information available at
the time of the determination, that the employee's performance could
not have contributed to the accident. The employee shall submit to
post-accident testing under this section.
(d) Drug testing based on reasonable cause. Each employer must test
each employee who performs a safety-sensitive function and who is
reasonably suspected of having used a prohibited drug. The decision to
test must be based on a reasonable and articulable belief that the
employee is using a prohibited drug on the basis of specific
contemporaneous physical, behavioral, or performance indicators of
probable drug use. At least two of the employee's supervisors, one of
whom is trained in detection of the symptoms of possible drug use, must
substantiate and concur in the decision to test an employee who is
reasonably suspected of drug use; except that in the case of an
employer, other than a part 121 certificate holder, who employs 50 or
fewer employees who perform safety-sensitive functions, one supervisor
who is trained in detection of symptoms of possible drug use must
substantiate the decision to test an employee who is reasonably
suspected of drug use.
(e) Return to duty drug testing. Each employer shall ensure that
before an individual is returned to duty to perform a safety-sensitive
function after refusing to submit to a drug test required by this
subpart or receiving a verified positive drug test result on a test
conducted under this subpart the individual shall undergo a return-to-
duty drug test. No employer shall allow an individual required to
undergo return-to-duty testing to perform a safety-sensitive function
unless the employer has received a verified negative drug test result
for the individual. The test cannot occur until after the SAP has
determined that the employee has successfully complied with the
prescribed education and/or treatment.
(f) Follow-up drug testing. (1) Each employer shall implement a
reasonable program of unannounced testing of each individual who has
been hired to perform or who has been returned to the performance of a
safety-sensitive function after refusing to submit to a drug test
required by this subpart or receiving a verified positive drug test
result on a test conducted under this subpart.
(2) The number and frequency of such testing shall be determined by
the employer's Substance Abuse Professional conducted in accordance
with the provisions of 49 CFR part 40, but shall consist of at least
six tests in the first 12 months following the employee's return to
duty.
(3) The employer must direct the employee to undergo testing for
alcohol in accordance with subpart F of this part, in addition to
drugs, if the Substance Abuse Professional determines that alcohol
testing is necessary for the particular employee. Any such alcohol
testing shall be conducted in accordance with the provisions of 49 CFR
part 40.
(4) Follow-up testing shall not exceed 60 months after the date the
individual begins to perform or returns to the performance of a safety-
sensitive function. The Substance Abuse Professional may terminate the
requirement for follow-up testing at any time after the first six tests
have been conducted, if the Substance Abuse Professional determines
that such testing is no longer necessary.
Sec. 120.111 Administrative and other matters.
(a) MRO record retention requirements. (1) Records concerning drug
tests confirmed positive by the laboratory shall be maintained by the
MRO for 5 years. Such records include the MRO copies of the custody and
control form, medical interviews, documentation of the basis for
verifying as negative test results confirmed as positive by the
laboratory, any other documentation concerning the MRO's verification
process.
(2) Should the employer change MRO's for any reason, the employer
shall ensure that the former MRO forwards all records maintained
pursuant to this rule to the new MRO within ten working days of
receiving notice from the employer of the new MRO's name and address.
(3) Any employer obtaining MRO services by contract, including a
contract through a C/TPA, shall ensure that the contract includes a
recordkeeping provision that is consistent with this paragraph,
including requirements for transferring records to a new MRO.
(b) Access to records. The employer and the MRO shall permit the
Administrator or the Administrator's representative to examine records
required to be kept under this subpart and 49 CFR part 40. The
Administrator or the Administrator's representative may require that
all records maintained by the service agent for the employer must be
produced at the employer's place of business.
(c) Release of drug testing information. An employer shall release
information regarding an employee's drug testing results, evaluation,
or rehabilitation to a third party in accordance with 49 CFR part 40.
Except as required by l
