##### Appendix J to Part 121---Alcohol Misuse Prevention Program

This appendix contains the standards and components that must be
included in an alcohol misuse prevention program required by this
chapter.

I. General

A. *Purpose*. The purpose of this appendix 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 appendix 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
appendix.

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.

D. *Definitions.*

As used in this appendix---

*Accident* means an occurrence associated with the operation of an
aircraft which takes place between the time any person boards the
aircraft with the intention of flight and the time all such persons have
disembarked, and in which any person suffers death or serious injury or
in which the aircraft receives substantial damage.

*Alcohol* means the intoxicating agent in beverage alcohol, ethyl
alcohol, or other low molecular weight alcohols, including methyl or
isopropyl alcohol.

*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 this appendix.

*Alcohol use* means the consumption of any beverage, mixture, or
preparation, including any medication, containing alcohol.

*Contractor* means an individual or company that performs a
safety-sensitive function by contract for an employer or another
contractor.

*Covered employee* means a person who performs, either directly or by
contract, a safety-sensitive function listed in section II of this
appendix for an employer (as defined below). For purposes of
pre-employment testing only, the term "covered employee" includes a
person applying to perform a safety-sensitive function.

*DOT agency* means an agency (or "operating administration") of the
United States Department of Transportation administering regulations
requiring alcohol testing (14 CFR parts 65, 121, and 135; 49 CFR parts
199, 219, and 382) in accordance with 49 CFR part 40.

*Employer* means a part 119 certificate holder with authority to operate
under parts 121 and/or 135; 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.

*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 functions.

*Refusal to submit* 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 this appendix.

*Safety-sensitive function* means a function listed in section II of
this appendix.

*Violation rate for random alcohol testing* means the number of 0.04 and
above random alcohol confirmation test results conducted under this
appendix plus the number of refusals of random alcohol tests required by
this appendix, divided by the total number of random alcohol screening
tests (including refusals) conducted under this appendix.

E. *Preemption of State and local laws.*

1\. Except as provided in subparagraph 2 of this paragraph, these
regulations preempt any State or local law, rule, regulation, or order
to the extent that:

\(a\) Compliance with both the State or local requirement and this
appendix is not possible; or

\(b\) Compliance with the State or local requirement is an obstacle to
the accomplishment and execution of any requirement in this appendix.

2\. The alcohol misuse 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.

F. *Other requirements imposed by employers.*

Except as expressly provided in these alcohol misuse requirements,
nothing in these requirements 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.

G. *Requirement for notice.*

Before performing an alcohol test under this appendix, each employer
shall notify a covered employee that the alcohol test is required by
this appendix. No employer shall falsely represent that a test is
administered under this appendix.

H. *Applicable Federal Regulations*. The following applicable
regulations appear in 49 CFR and 14 CFR:

1\. 49 CFR

Part 40---Procedures for Transportation Workplace Drug Testing Programs

2\. 14 CFR

61.14---Refusal to submit to a drug or alcohol test.

63.12b---Refusal to submit to a drug or alcohol test.

65.23---Refusal to submit to a drug or alcohol test.

65.46a---Misuse of Alcohol.

65.46b---Testing for Alcohol.

67.107---First-Class Airman Medical Certificate, Mental.

67.207---Second-Class Airman Medical Certificate, Mental.

67.307---Third-Class Airman Medical Certificate, Mental.

121.458---Misuse of alcohol.

121.459---Testing for alcohol.

135.1---Applicability.

135.253---Misuse of alcohol.

135.255---Testing for alcohol.

I. *Falsification*. No person may make, or cause to be made, any of the
following:

1\. Any fraudulent or intentionally false statement in any application
of an alcohol misuse prevention program.

2\. Any fraudulent or intentionally false entry in any record or report
that is made, kept, or used to show compliance with this appendix.

3\. Any reproduction or alteration, for fraudulent purposes, of any
report or record required to be kept by this appendix.

II\. Covered Employees

A. 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 appendix must be subject to alcohol
testing under an alcohol misuse prevention program implemented in
accordance with this appendix. This includes full-time, part-time,
temporary, and intermittent employees regardless of the degree of
supervision. The safety-sensitive 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.

III\. Tests Required

A. *Pre-employment testing*

As an employer, you may, but are not required to, conduct pre-employment
alcohol testing under this part. If you choose to conduct pre-employment
alcohol testing, you must comply with the following requirements:

1\. You must conduct a pre-employment 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 safety-sensitive 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 pre-employment 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 pre-employment alcohol tests using the alcohol
testing procedures of 49 CFR Part 40.

5\. You must not allow a covered employee to begin performing
safety-sensitive functions unless the result of the employee\'s test
indicates an alcohol concentration of less than 0.04. If a
pre-employment test result under this paragraph indicates an alcohol
concentration of 0.02 or greater but less than 0.04, the provisions of
paragraph F. of section V. of this appendix apply.

B. *Post-accident 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.

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 testing*

1\. Except as provided in paragraphs 2--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 appendix. 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\. (a) 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 appendix for
two consecutive calendar years indicate that the violation rate is less
than 0.5 percent.

\(b\) 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 appendix 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\. (a) When the minimum annual percentage rate for random alcohol
testing is 10 percent, and the data received under the reporting
requirements of this appendix 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.

\(b\) 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 appendix 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
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.

\(a\) 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.

\(1\) 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."

\(2\) 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.

\(b\) 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:

\(1\) 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.

\(2\) 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.

\(3\) 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 alcohol tests conducted under
this appendix 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
safety-sensitive 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
the alcohol testing rules of more than one DOT agency, the employer
may---

\(a\) Establish separate pools for random selection, with each pool
containing the covered employees who are subject to testing at the same
required rate; or

\(b\) 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 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 §65.46a,
121.458, or 135.253 of this chapter.

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 2 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 safety-sensitive functions; just before
the employee is to perform safety-sensitive functions; or just after the
employee has ceased performing such functions.

4\. (a) If a test required by this section is not administered within 2
hours following the determination made under paragraph 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 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.

\(b\) 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 safety-sensitive functions while
the employee 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:

\(1\) An alcohol test is administered and the employee\'s alcohol
concentration measures less than 0.02; or

\(2\) The start of the employee\'s next regularly scheduled duty period,
but not less than 8 hours following the determination made under
paragraph 2 of this section that there is reasonable suspicion that the
employee has violated the alcohol misuse provisions in §65.46a, 121.458,
or 135.253 of this chapter.

\(c\) No employer shall take any action under this appendix 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 appendix from taking any action
otherwise consistent with law.

E. *Return to Duty Testing*

Each employer shall ensure that before a covered employee returns to
duty requiring the performance of a safety-sensitive function after
engaging in conduct prohibited in §65.46a, §121.458, or §135.253 of this
chapter, 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 Testing*

1\. Each employer shall ensure that the employee who engages in conduct
prohibited by §65.46a, §121.458, or §135.253 of this chapter 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 appendix I 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
conducted, if the SAP determines that such testing is no longer
necessary.

5\. A covered employee shall be tested for alcohol under this paragraph
only 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.

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 section V, paragraph F of this appendix, 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.

IV\. 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 appendix in a secure location with controlled access.

2\. *Period of retention*.

\(a\) *Five years*.

\(1\) Copies of any annual reports submitted to the FAA under this
appendix for a minimum of 5 years.

\(2\) 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.

\(3\) Documents presented by a covered employee to dispute the result of
an alcohol test administered under this appendix.

\(4\) Records related to other violations of §65.46a, §121.458, or
§135.253 of this chapter.

\(b\) *Two years*. Records related to the testing process and training
required under this appendix.

\(1\) Documents related to the random selection process.

\(2\) Documents generated in connection with decisions to administer
reasonable suspicion alcohol tests.

\(3\) Documents generated in connection with decisions on post-accident
tests.

\(4\) Documents verifying existence of a medical explanation of the
inability of a covered employee to provide adequate breath for testing.

\(5\) Materials on alcohol misuse awareness, including a copy of the
employer\'s policy on alcohol misuse.

\(6\) Documentation of compliance with the requirements of section VI,
paragraph A of this appendix.

\(7\) 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.

\(8\) Certification that any training conducted under this appendix
complies with the requirements for such training.

B. *Annual Reports*

1\. Annual reports of alcohol misuse prevention 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 below.

\(a\) Each part 121 certificate holder shall submit an annual report
each year.

\(b\) Each entity conducting an alcohol misuse prevention 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.

\(c\) 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:
http://www.faa.gov/avr/aam/adap.

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 appendix, no employer shall release covered employee information
that is contained in records required to be maintained under this
appendix.

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 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 appendix to the Secretary of
Transportation or any DOT agency with regulatory authority over the
employer or any of its covered employees.

V. 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 §65.46a, 121.458, or 135.253 of this chapter or an
alcohol misuse rule of another DOT agency.

2\. No employer shall permit any covered employee to perform
safety-sensitive functions if the employer has determined that the
employee has violated this paragraph.

B. *Permanent Disqualification From Service*

An employee who violates §65.46a(c), 121.458(c), or 135.253(c) of this
chapter, or who engages in alcohol use that violates another alcohol
misuse provision of §65.46a, 121.458, or 135.253 of this chapter and had
previously engaged in alcohol use that violated the provisions of
§65.46a, 121.458, or 135.253 of this chapter 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
§65.46a, 121.458, or 135.253 of this chapter 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
section VI.C. of this appendix 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 safety-sensitive duty may perform that
duty following a violation of this appendix 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 appendix.

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
safety-sensitive 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*

1\. 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 appendix. 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.

2\. \[Reserved\]

E. *Required Evaluation and Testing*

No covered employee who has engaged in conduct prohibited by §65.46a,
121.458, or 135.253 of this chapter shall perform safety-sensitive
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 the provisions of section III of
this appendix 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:

\(a\) 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 administration of the test.

2\. Except as provided in subparagraph 1 of this paragraph, 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 employer with authority independent of this rule
from taking any action otherwise consistent with law.

VI\. Alcohol Misuse Information, Training, and Substance Abuse
Professional

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 misuse requirements and the
employer\'s policies and procedures with respect to meeting those
requirements.

\(a\) 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 misuse prevention
program and to each person subsequently hired for or transferred to a
covered position.

\(b\) 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:

\(a\) The identity of the person designated by the employer to answer
employee questions about the materials.

\(b\) The categories of employees who are subject to the provisions of
these alcohol misuse requirements.

\(c\) 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
misuse requirements.

\(d\) Specific information concerning employee conduct that is
prohibited by this chapter.

\(e\) The circumstances under which a covered employee will be tested
for alcohol under this appendix.

\(f\) 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.

\(g\) The requirement that a covered employee submit to alcohol tests
administered in accordance with this appendix.

\(h\) An explanation of what constitutes a refusal to submit to an
alcohol test and the attendant consequences.

\(i\) 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.

\(j\) The consequences for covered employees found to have an alcohol
concentration of 0.02 or greater but less than 0.04.

\(k\) Information concerning the effects of alcohol misuse on an
individual\'s health, work, and personal life; signs and symptoms of an
alcohol problem; and 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.

\(l\) *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 appendix. 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 section II of this appendix 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 appendix.

VII\. How To Implement an Alcohol Misuse Prevention Program

A. Each company must meet the requirements of this appendix. 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       Obtain an Antidrug and Alcohol Misuse Prevention
  certificate holder   Program Operations Specification by contacting
  with authority to    your FAA Principal Operations Inspector.
  operate under parts  
  121 and/or 135       

  2\. An operator as   Register with the FAA by contacting the Flight
  defined in §91.147   Standards District Office nearest to your
                       principal place of business.

  3\. An air traffic   Register with the FAA, Office of Aerospace
  control facility not Medicine, Drug Abatement Division (AAM--800), 800
  operated by the FAA  Independence Avenue, SW., Washington, DC 20591.
  or by or under       
  contract to the U.S. 
  Military             

  4\. A part 145       Obtain an Antidrug and Alcohol Misuse Prevention
  certificate holder   Program Operations Specification by contacting
  who has your own     your FAA Principal Maintenance Inspector or
  alcohol misuse       register with the FAA, Office of Aerospace
  prevention program   Medicine, Drug Abatement Division (AAM--800), 800
                       Independence Avenue, SW., Washington, DC 20591, if
                       you opt to conduct your own Alcohol Misuse
                       Prevention Program.

  5\. A contractor who Register with the FAA, Office of Aerospace
  has your own alcohol Medicine, Drug Abatement Division (AAM--800), 800
  misuse prevention    Independence Avenue, SW., Washington, DC 20591 if
  program              you opt to conduct your own Alcohol Misuse
                       Prevention Program.
  -------------------- --------------------------------------------------

B. Use the following chart for implementing an Alcohol Misuse Prevention
Program if you are applying for a part 119 certificate with authority to
operate under parts 121 and/or 135, if you intend to begin operations as
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 duties must be tested in
accordance with this appendix. The chart follows:

  --------------------------------- -------------------------------------
  **If you . . .**                  **You must . . .**

  1\. Apply for a part 119          a\. Have an Antidrug and Alcohol
  certificate with authority to     Misuse Prevention Program Operations
  operate under parts 121 and/or    Specification,\
  135                               b. Implement an FAA Alcohol Misuse
                                    Prevention Program no later than the
                                    date you start operations, and

                                    c\. Meet the requirements of this
                                    appendix.

  2\. Intend to begin operations as a\. Register with the FAA by
  defined in §91.147 of this        contacting the Flight Standards
  chapter                           District Office nearest to your
                                    principal place of business prior to
                                    starting operations,\
                                    b. Implement an FAA Alcohol Misuse
                                    Prevention Program no later than the
                                    date you start operations, and

                                    c\. Meet the requirements of this
                                    appendix.

  3\. Intend to begin air traffic   a\. Register with the FAA, Office of
  control operations (at an air     Aerospace Medicine, Drug Abatement
  traffic control facility not      Division (AAM--800), 800 Independence
  operated by the FAA or by or      Avenue, SW., Washington, DC 20591,\
  under contract to the U.S.        b. Implement an FAA Alcohol Misuse
  Military)                         Prevention Program no later than the
                                    date you start operations, and

                                    c\. Meet the requirements of this
                                    appendix.
  --------------------------------- -------------------------------------

C. If you are an individual or a company that intends to provide
safety-sensitive services by contract to a part 119 certificate holder
with authority to operate under parts 121 and/or 135 or an operator as
defined in §91.147 of this chapter, use the chart below to determine
what you must do if you opt to have your own Alcohol Misuse Prevention
Program:

  ------------- ----------------------------------------------------------
  **If you      **And you opt to conduct your own Alcohol Misuse
  .  .  .**     Prevention Program, you must .  .  .**

  a\. Are a     i\. Have an Antidrug and Alcohol Misuse Prevention Program
  part 145      Operations Specification or register with the FAA, Office
  certificate   of Aerospace Medicine, Drug Abatement Division (AAM--800),
  holder        800 Independence Avenue, SW., Washington, DC 20591,

                ii\. Implement an FAA Alcohol Misuse Prevention 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 appendix as if you
                were an employer.

  b\. Are a     i\. Register with the FAA, Office of Aerospace Medicine,
  contractor    Drug Abatement Division (AAM--800), 800 Independence
                Avenue, SW., Washington, DC 20591,

                ii\. Implement an FAA Alcohol Misuse Prevention 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 appendix 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:

a\. Company name.

b\. Certificate number.

c\. Telephone number.

d\. Address where your Antidrug and Alcohol Misuse Prevention Program
records are kept.

e\. 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 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 appendix I of this part, this appendix, 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 appendix I of this part and this appendix.

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:

a\. Company name.

b\. Telephone number.

c\. Address where your Antidrug and Alcohol Misuse Prevention Program
records are kept.

d\. 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).

e\. Whether you have 50 or more covered employees, or 49 or fewer
covered employees.

f\. A signed statement indicating that: Your company will comply with
this appendix, appendix I of 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, an operator as 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 appropriate address below:

a\. For §91.147 operators: The Flight Standards District Office nearest
to your principal place of business.

b\. For all others: 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 2.

4\. This registration will satisfy the registration requirements for
both your Antidrug Program under appendix I of this part and your
Alcohol Misuse Prevention Program under this appendix.

VIII\. Employees Located Outside the U.S.

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 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 appendix shall not apply to any person who
performs a safety-sensitive function by contract for an employer outside
the territory of the United States.

\[Amdt. 121--237, 59 FR 7390, Feb. 15, 1994, as amended at 59 FR 53086,
Oct. 21, 1994; 59 FR 62238, 62239, Dec. 2, 1994; 59 FR 66672, Dec. 28,
1994; 61 FR 37224, July 17, 1996; 65 FR 18887, Apr. 10, 2000; 66 FR
41967, Aug. 9, 2001; Amdt. 121--287, 66 FR 57866, Nov. 19, 2001; 68 FR
75461, Dec. 31, 2003; 69 FR 1858, Jan. 12, 2004; 69 FR 12938, Mar. 18,
2004; Amdt. 121--315, 71 FR 1677, Jan. 10, 2006; Amdt. 121--325, 71 FR
35765, June 21, 2006; 71 FR 38517, July 7, 2006; 71 FR 62209, Oct. 24,
2006; Amdt. 121--332, 72 FR 12084, Mar. 15, 2007; Amdt. 121--332, 72 FR
31449, June 7, 2007\]

**Effective Date Note:**   By Amdt. 121--237, 60 FR 24766, May 10, 1995,
part 121, was amended by suspending appendix J, sec. III, subsection A
("Pre-employment"), effective May 10, 1995.