[Federal Register Volume 74, Number 92 (Thursday, May 14, 2009)]
[Rules and Regulations]
[Pages 22649-22668]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-11289]


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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.

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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 
<a href="/cdn-cgi/l/email-protection#214553544640434055444c444f55614740400f464e57"><span class="__cf_email__" data-cfemail="6400161103050605100109010a10240205054a030b12">[email protected]</span></a>.

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 (http://www.regulations.gov);
    2. Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulation_policies/; or
    3. Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html.
    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 
http://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 http://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

[[Page 22656]]

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 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.

[[Page 22659]]

Sec.  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 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 
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.
    (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 Sec.  120.113 (d)(1); or
    (ii) An individual who the employer has reported to the Federal Air 
Surgeon under Sec.  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.


Sec.  120.115  Employee Assistance Program (EAP).

    (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.
    (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 Sec.  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.


Sec.  120.117  Implementing a drug 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:

[[Page 22660]]



------------------------------------------------------------------------
       If you are . . .                      You must . . .
------------------------------------------------------------------------
(1) A part 119 certificate     Obtain an Antidrug and Alcohol Misuse
 holder with authority to       Prevention Program Operations
 operate under parts 121 and/   Specification by contacting your FAA
 or 135.                        Principal Operations Inspector.
(2) A sightseeing operator as  Register with the FAA by contacting the
 defined in Sec.   91.147 of    Flight Standards District Office nearest
 this chapter.                  to your principal place of business.
(3) An air traffic control     Register with the FAA, Office of
 facility not operated by the   Aerospace Medicine, Drug Abatement
 FAA or by or under contract    Division (AAM-800), 800 Independence
 to the U.S. Military.          Avenue, SW., Washington, DC 20591.
(4) A part 145 certificate     Obtain an Antidrug and Alcohol Misuse
 holder who has your own drug   Prevention Program Operations
 testing program.               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.
(5) A contractor who has your  Register with the FAA, Office of
 own drug testing program.      Aerospace Medicine, Drug Abatement
                                Division (AAM-800), 800 Independence
                                Avenue, SW., Washington, DC 20591, if
                                you opt to conduct 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 defined in Sec.  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     (i) Have an Antidrug and
 with authority to operate under parts    Alcohol Misuse Prevention
 121 or 135.                              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.
(2) Intend to begin operations as        (i) Register with the FAA, by
 defined in Sec.   91.147 of this         contacting the Flight
 chapter.                                 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.
(3) Intend to begin air traffic control  (i) Register with the FAA,
 operations (at an air traffic control    Office of Aerospace Medicine,
 facility not operated by the FAA or by   Drug Abatement Division (AAM-
 or under contract to the U.S.            800), 800 Independence Avenue,
 military).                               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.
------------------------------------------------------------------------

     (c) If you are an individual or 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 of this chapter, 
an operation 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, use the following chart to determine 
what you must do if you opt to have your own drug testing program.

------------------------------------------------------------------------
                                  And you opt to conduct your own drug
         If you . . .                   program, you must . . .
------------------------------------------------------------------------
(1) Are a part 145             (i) Have an Antidrug and Alcohol Misuse
 certificate holder.            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 safety-sensitive functions
                                for a part 119 certificate holder with
                                authority to operate under parts 121 or
                                135, or operator as defined in Sec.
                                91.147 of this chapter, and
                               (iii) Meet the requirements of this
                                subpart as if you were an employer.
(2) Are a contractor.........  (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 safety-sensitive functions
                                for a part 119 certificate holder with
                                authority to operate under parts 121 or
                                135, or 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, and
                               (iii) Meet the requirements of this
                                subpart as if you were an employer.
------------------------------------------------------------------------

    (d) Obtaining an Antidrug and Alcohol Misuse Prevention Program 
Operations Specification. (1) To obtain an Antidrug and Alcohol Misuse 
Prevention Program Operations Specification, you must contact your FAA 
Principal Operations Inspector or Principal Maintenance Inspector.

[[Page 22661]]

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 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.
    (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 this subpart and your alcohol 
testing program under subpart F of this part.


Sec.  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: 
http://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.


Sec.  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 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.


Sec.  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 Sec.  120.105 by contract 
for an employer outside the territory of the United States.


Sec.  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


Sec.  120.201  Scope.

    This subpart contains the standards and components that must be 
included

[[Page 22662]]

in an alcohol testing program required by this part.


Sec.  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.


Sec.  120.205  Preemption of State and local laws.

    (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.


Sec.  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.


Sec.  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.


Sec.  120.211  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) Sec.  67.107--First-Class Airman Medical Certificate, Mental.
    (2) Sec.  67.207--Second-Class Airman Medical Certificate, Mental.
    (3) Sec.  67.307--Third-Class Airman Medical Certificate, Mental.
    (4) Sec.  91.147--Passenger carrying flights for compensation or 
hire.


Sec.  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.


Sec.  120.215  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 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 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.


Sec.  120.217   Tests required.

    (a) Pre-employment alcohol testing. As an employer, you may, but 
are not 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 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 
Sec.  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.

[[Page 22663]]

    (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 
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 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 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 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 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 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

[[Page 22664]]

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 Sec. Sec.  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 
safety-sensitive 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 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:
    (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 Sec. Sec.  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 safety-sensitive function after engaging in conduct prohibited in 
Sec. Sec.  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 Sec. Sec.  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 
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 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 Sec.  
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.


Sec.  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 Sec. Sec.  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 post-
accident 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 Sec.  
120.223(a).

[[Page 22665]]

    (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: http://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 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.


Sec.  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 
Sec. Sec.  120.19 or 120.37, 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 section.
    (b) Permanent disqualification from service. An employee who 
violates Sec. Sec.  120.19 or 120.37, or who engages in alcohol use 
that violates another alcohol misuse provision of Sec. Sec.  120.19 or 
120.37 and who had previously engaged in alcohol use that violated the 
provisions of Sec. Sec.  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 Sec. Sec.  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 
Sec.  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 safety-sensitive duty may perform 
that duty 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 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. 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 Sec. Sec.  120.19 or 120.37 
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 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

[[Page 22666]]

employer with authority independent of this rule from taking any action 
otherwise consistent with law.


Sec.  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 Sec.  
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.


Sec.  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     Obtain an Antidrug and Alcohol Misuse
 holder with authority to       Prevention Program Operations
 operate under parts 121 and/   Specification by contacting your FAA
 or 135.                        Principal Operations Inspector.
(2) An operator as defined in  Register with the FAA, by contacting the
 Sec.   91.147 of this          Flight Standards District Office nearest
 chapter.                       to your principal place of business.
(3) An air traffic control     Register with the FAA, Office of
 facility not operated by the   Aerospace Medicine, Drug Abatement
 FAA or by or under contract    Division (AAM-800), 800 Independence
 to the U.S. Military.          Avenue, SW., Washington, DC 20591.
(4) A part 145 certificate     Obtain an Antidrug and Alcohol Misuse
 holder who has your own        Prevention Program Operations
 alcohol testing program.       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.
(5) A contractor who has your  Register with the FAA, Office of
 own alcohol testing program.   Aerospace Medicine, Drug Abatement
                                Division (AAM-800), 800 Independence
                                Avenue, SW., Washington, DC 20591 if you
                                opt to conduct 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 Sec.  91.147 of this 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 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:

[[Page 22667]]



------------------------------------------------------------------------
         If you . . .                        You must . . .
------------------------------------------------------------------------
(1) Apply for a part 119       (i) Have an Antidrug and Alcohol Misuse
 certificate with authority     Prevention Program Operations
 to operate under parts 121     Specification,
 and/or 135.                   (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            (i) Register with the FAA by contacting
 operations as defined in       the Flight Standards District Office
 Sec.   91.147 of this          nearest your principal place of business
 chapter.                       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        (i) Register with the FAA, Office of
 traffic control operations     Aerospace Medicine, Drug Abatement
 (at an air traffic control     Division (AAM-800), 800 Independence
 facility not operated by the   Avenue, SW., Washington, DC 20591 prior
 FAA or by or under contract    to starting operations,
 to the U.S. military).        (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 
safety-sensitive 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 Sec.  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
         If you . . .               Testing Program, you must . . .
------------------------------------------------------------------------
(1) Are a part 145             (i) Have an Antidrug and Alcohol Misuse
 certificate holder.            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
                                Sec.   91.147 of this chapter, and
                               (iii) Meet the requirements of this
                                subpart as if you were an employer.
------------------------------------------------------------------------
(2) Are a contractor.........  (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 Sec.
                                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.
    (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 defined by 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.
    (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.


Sec.  120.227  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

[[Page 22668]]

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

0
14. The authority citation for part 121 continues to read as follows:

    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.


Sec.  121.429  [Removed and Reserved]

0
15. Section 121.429 is removed and reserved.


Sec.  121.455  [Removed and Reserved]

0
16. Section 121.455 is removed and reserved.


Sec.  121.457  [Removed and Reserved]

0
17. Section 121.457 is removed and reserved.


Sec.  121.458  [Removed and Reserved]

0
18. Section 121.458 is removed and reserved.


Sec.  121.459  [Removed and Reserved]

0
19. Section 121.459 is removed and reserved.


Appendix I to Part 121  [Removed and Reserved]

0
20. Appendix I is removed and reserved.


Appendix J to Part 121  [Removed and Reserved]

0
21. Appendix J is removed and reserved.

PART 135--OPERATING REQUIREMENTS: COMMUTER AND ON DEMAND OPERATIONS 
AND RULES GOVERNING PERSONS ON BOARD SUCH AIRCRAFT

0
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.


0
23. Section 135.1(a)(5) is revised to read as follows:

Sec.  135.1 Applicability

    (a) * * *
    (5) Nonstop Commercial Air Tour flights conducted for compensation 
or hire in accordance with Sec.  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 
Sec. Sec.  120.31, 120.33, 120.35, 120.37, and 135.39 of this chapter; 
and with the provisions of part 136, subpart A, and Sec.  91.147 of 
this chapter by September 11, 2007.
* * * * *


Sec.  135.249  [Removed and Reserved]

0
24. Section 135.249 is removed and reserved.


Sec.  135.251  [Removed and Reserved]

0
25. Section 135.251 is removed and reserved.


Sec.  135.253  [Removed and Reserved]

0
26. Section 135.253 is removed and reserved.


Sec.  135.255  [Removed and Reserved]

0
27. Section 135.255 is removed and reserved.


Sec.  135.353  [Removed and Reserved]

0
28. Section 135.353 is 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]
BILLING CODE 4910-13-P


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