Federal Register / Vol. 74, No. 92 / Thursday, May 14, 2009 / Rules and Regulations 22649 

actions are considered FAA-approved if they 

are approved by the State of Design Authority 

(or their delegated agent). You are required 

to assure the product is airworthy before it 

is returned to service. 

(3) Reporting Requirements: For any 

reporting requirement in this AD, under the 

provisions of the Paperwork Reduction Act, 

the Office of Management and Budget (OMB) 

has approved the information collection 

requirements and has assigned OMB Control 

Number 2120–0056. 

Related Information 

(h) Refer to MCAI Canadian Airworthiness 

Directive CF–2009–08, dated March 9, 2009; 

Bombardier Alert Service Bulletin A670BA– 

21–022, dated August 3, 2006; and Tasks 21– 

32–01–000–801 and 21–32–01–400–801 of 

the Bombardier CRJ Regional Jet Series 

Aircraft Maintenance Manual, CSP B–001, 

Part 2, Volume 1, Revision 28, dated January 

20, 2009; for related information. 

Material Incorporated by Reference 

(i) You must use Bombardier Alert Service 

Bulletin A670BA–21–022, dated August 3, 

2006; Task 21–32–01–000–801 of the 

Bombardier CRJ Regional Jet Series Aircraft 

Maintenance Manual, CSP B–001, Part 2, 

Volume 1, Revision 28, dated January 20, 

2009; and Task 21–32–01–400–801, of the 

Bombardier CRJ Regional Jet Series Aircraft 

Maintenance Manual, CSP B–001, Part 2, 

Volume 1, Revision 28, dated January 20, 

2009; as applicable; to do the actions 

required by this AD, unless the AD specifies 

otherwise. The optional terminating actions, 

if done, must be done in accordance with 

Bombardier Alert Service Bulletin A670BA– 

21–022, dated August 3, 2006. Bombardier 

CRJ Regional Jet Series Aircraft Maintenance 

Manual, CSP B–001, Part 2, Volume 1, 

Revision 28, dated January 20, 2009, contains 

the following effective pages: 

LIST OF EFFECTIVE PAGES

Page title/description Page number(s) Revision number Date shown on page(s) 

Title Page ............................................................................... None shown ................... 28 .................................... January 20, 2009. 

List of Chapters ...................................................................... 1–2 .................................. 28 .................................... January 20, 2009. 

Chapter 21 List of Effective Pages ........................................ 1–39 ................................ None shown* .................. January 20, 2009. 

Task 21–32–01–000–801 ...................................................... 401–403 .......................... None shown* .................. July 20, 2008. 

Task 21–32–01–400–801 ...................................................... 408–411 .......................... None shown* .................. July 20, 2008. 

(* The revision level is specified only on the title page and List of Chapters pages of this document.) 

(1) The Director of the Federal Register 

approved the incorporation by reference of 

this service information under 5 U.S.C. 

552(a) and 1 CFR part 51. 

(2) For service information identified in 

this AD, contact Bombardier, Inc., 400 CoˆteVertu Road West, Dorval, Que ́bec H4S 1Y9, 

Canada; telephone 514–855–5000; fax 514– 

855–7401; e-mail 

thd.crj@aero.bombardier.com; Internet 

http://www.bombardier.com. 

(3) You may review copies of the service 

information at the FAA, Transport Airplane 

Directorate, 1601 Lind Avenue, SW., Renton, 

Washington. For information on the 

availability of this material at the FAA, call 

425–227–1221 or 425–227–1152. 

(4) You may also review copies of the 

service information that is incorporated by 

reference at the National Archives and 

Records Administration (NARA). For 

information on the availability of this 

material at NARA, call 202–741–6030, or go 

to: http://www.archives.gov/federal_register/ 

code_of_federal_regulations/ibr_

locations.html. 

Issued in Renton, Washington, on May 6, 

2009. 

Ali Bahrami, 

Manager, Transport Airplane Directorate, 

Aircraft Certification Service. 

[FR Doc. E9–11139 Filed 5–13–09; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Parts 61, 63, 65, 91, 120, 121, 

135 

[Docket No. FAA–2008–0937; Amendment 

Nos. 61–122, 63–37, 65–53, 91–307, 120– 

0, 121–343, 135–117] 

RIN 2120–AJ37 

Drug and Alcohol Testing Program 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final rule. 

SUMMARY: This action amends the FAA’s 

drug and alcohol regulations to place 

them in a new part. The FAA is not 

making any substantive changes to the 

drug and alcohol regulations in this 

rulemaking. 

DATES: Effective Date: July 13, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Rafael Ramos, Office of Aerospace 

Medicine, Drug Abatement Division, 

AAM–800, Federal Aviation 

Administration, 800 Independence 

Avenue, SW., Washington, DC 20591; 

telephone (202) 267–8442; facsimile 

(202) 267–5200; e-mail 

drugabatement@faa.gov. 

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 FAArequired drug and alcohol testing 

requirements currently are scattered 

throughout Chapter I of Title 14, Code 

of Federal Regulations. Requirements 

for affected certificated airmen are 

located in parts 61, 63, 65, and 67. 


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22650 Federal Register / Vol. 74, No. 92 / Thursday, May 14, 2009 / Rules and Regulations 

Requirements for affected air carriers 

and operators are located in parts 91, 

121 and 135. Requirements for affected 

air traffic control facilities and air traffic 

controllers are included in subpart B of 

part 65. Requirements for repair stations 

certificated under part 145, and 

contractors, who elect to have drug and 

alcohol testing programs, are included 

in appendices I and J of part 121. 

At this time, the FAA is working on 

a major revision of its drug and alcohol 

testing regulations. Given the 

complexity of that revision and the time 

it will take to complete the rulemaking 

process, the FAA has concluded that in 

the interim it makes sense to pull the 

existing regulations together in one 

place. The FAA expects that doing so 

will clarify the requirements for testing, 

and simplify locating specific 

provisions and changes to those 

provisions for individuals and entities 

that have drug and alcohol testing 

programs. 

This rulemaking will gather the 

existing regulations into the new part, 

remove them from their existing 

locations, and provide cross references 

in parts 91 and 135 to the new part. 

Appendices I and J themselves set 

forth the requirements for drug and 

alcohol testing programs. Some 

provisions in the current regulations in 

appendices I and J are duplicative. For 

example, the definitions in the 

appendices are mostly verbatim 

duplications. In addition, some of the 

terms defined in the appendices I and 

J are used in parts 121 and 135. Because 

the drug and alcohol testing provisions 

of 121 and 135 are being moved to new 

part 120, it makes sense to move those 

definitions up to subpart A of new part 

120. We are therefore including all the 

definitions in section 120.7 of subpart 

A. 

The FAA has begun moving away 

from using the separate terms ‘‘antidrug 

program’’ and ‘‘alcohol misuse 

prevention program’’ in favor of ‘‘drug 

testing program’’ and ‘‘alcohol testing 

program’’ where appropriate. For 

example, in this rulemaking, we use the 

term ‘‘drug testing program’’ instead of 

‘‘antidrug program’’ in § 120.101 and 

‘‘alcohol testing program’’ instead of 

‘‘alcohol misuse prevention program’’ in 

§ 120.21(a). However, the Operations 

Specifications A449 relating to drug and 

alcohol testing is still titled ‘‘Antidrug 

and Alcohol Misuse Prevention Program 

Operations Specifications’’. 

The language in the rules governing 

the requirements for part 119 certificate 

holders to conduct drug and alcohol 

testing is mostly identical for both 121 

and 135 operations. There is some 

language that is unique to operations 

under part 135. To limit duplication and 

the potential for confusion related to 

having multiple regulations dealing 

with the same requirements, the FAA is 

combining the drug and alcohol testing 

requirements in current parts 121 and 

135 rather than having separate part 120 

subparts for 121 or 135. Provisions 

unique to operations conducted under 

part 135 are placed at the end of 

relevant sections. 

Organization of New Part 120 

The following table shows the 

derivation of the regulations contained 

in this final rule: 

Final Rule part 120 section or paragraph Based in whole or in part on 14 CFR parts 61, 63, 65, 121, and 135 

sections or paragraphs 

120.11 Refusal to submit to a drug or alcohol test by a part 61 certificate holder.61.14 Refusal to submit to a drug or alcohol test. 

120.13 Refusal to submit to a drug or alcohol test by a part 63 certificate holder.63.12b Refusal to submit to a drug or alcohol test. 

120.15 Refusal to submit to a drug or alcohol test by a part 65 certificate holder.65.23 Refusal to submit to a drug or alcohol test. 

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 


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Federal Register / Vol. 74, No. 92 / Thursday, May 14, 2009 / Rules and Regulations 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 


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the information on a disk or CD–ROM, 

mark the outside of the disk or CD–ROM 

and also identify electronically within 

the disk or CD–ROM the specific 

information that is proprietary or 

confidential. 

Under § 11.35(b), when we are aware 

of proprietary information filed with a 

comment, we do not place it in the 

docket. We hold it in a separate file to 

which the public does not have access, 

and place a note in the docket that we 

have received it. If we receive a request 

to examine or copy this information, we 

treat it as any other request under the 

Freedom of Information Act (5 U.S.C. 

552). We process such a request under 

the DOT procedures found in 49 CFR 

part 7. 

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 

■ In consideration of the foregoing, the 

Federal Aviation Administration adds 

part 120 and amends parts 61, 63, 65, 

91, 121, and 135 of Title 14 of the Code 

of Federal Regulations (14 CFR parts 61, 

63, 65, 91, 121, 135), as follows: 

PART 61—CERTIFICATION: PILOTS, 

FLIGHT INSTRUCTORS, AND GROUND 

INSTRUCTORS 

■ 1. The authority citation for part 61 

continues to read as follows: 

Authority: 49 U.S.C. 106(g), 40113, 44701– 

44703, 44707, 44709–44711, 45102–45103, 

45301–45302. 

§ 61.14 [Removed and Reserved] 

■ 2. Section 61.14 is removed and 

reserved. 

PART 63—CERTIFICATION: FLIGHT 

CREWMEMBERS OTHER THAN 

PILOTS 

■ 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. 

§ 63.12b [Removed and Reserved] 

■ 4. Section 63.12b is removed and 

reserved. 

PART 65—CERTIFICATION: AIRMEN 

OTHER THAN FLIGHT 

CREWMEMBERS 

■ 5. The authority citation for part 65 

continues to read as follows: 

Authority: 49 U.S.C. 106(g). 40113, 44701– 

44703, 44707, 44709–44711, 45102–45103, 

45301–45302. 

§ 65.23 [Removed and Reserved] 

■ 6. Section 65.23 is removed and 

reserved. 

§ 65.46 [Removed and Reserved] 

■ 7. Section 65.46 is removed and 

reserved. 

§ 65.46a [Removed and Reserved] 

■ 8. Section 65.46a is removed and 

reserved. 

§ 65.46b [Removed and Reserved] 

■ 9. Section 65.46b is removed and 

reserved. 

PART 91—GENERAL OPERATING AND 

FLIGHT RULES 

■ 10. The authority citation for part 91 

continues to read as follows: 

Authority: 49 U.S.C. 106(g), 1155, 40103, 

40113, 40120, 44101, 44111, 44701, 44704, 

44709, 44711, 44712, 44715, 44716, 44717, 

44722, 46306, 46315, 46316, 46504, 46506– 

46507, 47122, 47508, 47528–47531, articles 

12 and 29 of the Convention on International 

Civil Aviation (61 Stat. 1180). 

■ 11. Section 91.147(d) is revised to 

read as follows: 

§ 91.147 Passenger-carrying flights for 

compensation or hire. 

* * * * * 

(d) The Operator must register and 

implement its drug and alcohol testing 

programs in accordance with part 120 of 

this chapter. 

* * * * * 


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■ 12. Section 91.1047(c)(3) is revised to 

read as follows: 

§ 91.1047 Drug and alcohol misuse 

education program. 

* * * * * 

(c) * * * 

(3) The degree to which the program 

manager’s company testing program is 

comparable to the federally mandated 

drug and alcohol testing program 

required under part 120 of this chapter 

regarding the information in paragraphs 

(c)(1) and (c)(2) of this section. 

* * * * * 

■ 13. Add Part 120 to read as follows: 

PART 120—DRUG AND ALCOHOL 

TESTING PROGRAM 

Subpart A—General 

Sec. 

120.1 Applicability. 

120.3 Purpose. 

120.5 Procedures. 

120.7 Definitions. 

Subpart B—Individuals Certificated Under 

Parts 61, 63, and 65 

120.11 Refusal to submit to a drug or 

alcohol test by a Part 61 certificate 

holder. 

120.13 Refusal to submit to a drug or 

alcohol test by a Part 63 certificate 

holder. 

120.15 Refusal to submit to a drug or 

alcohol test by a Part 65 certificate 

holder. 

Subpart C—Air Traffic Controllers 

120.17 Use of prohibited drugs. 

120.19 Misuse of alcohol. 

120.21 Testing for alcohol. 

Subpart D—Part 119 Certificate Holders 

Authorized To Conduct Operations Under 

Part 121 or Part 135 or Operators Under 

§ 91.147 of This Chapter and SafetySensitive Employees 

120.31 Prohibited drugs. 

120.33 Use of prohibited drugs. 

120.35 Testing for prohibited drugs. 

120.37 Misuse of alcohol. 

120.39 Testing for alcohol. 

Subpart E—Drug Testing Program 

Requirements 

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 

§ 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 safetysensitive function listed in subpart E or 

subpart F of this part. 

(c) All part 145 certificate holders 

who perform safety-sensitive functions 

and elect to implement a drug and 

alcohol testing program under this part. 

(d) All contractors who elect to 

implement a drug and alcohol testing 

program under this part. 

§ 120.3 Purpose. 

The purpose of this part is to establish 

a program designed to help prevent 

accidents and injuries resulting from the 

use of prohibited drugs or the misuse of 

alcohol by employees who perform 

safety-sensitive functions in aviation. 

§ 120.5 Procedures. 

Each employer having a drug and 

alcohol testing program under this part 

must ensure that all drug and alcohol 

testing conducted pursuant to this part 

complies with the procedures set forth 

in 49 CFR part 40. 

§ 120.7 Definitions. 

For the purposes of this part, the 

following definitions apply: 

(a) Accident means an occurrence 

associated with the operation of an 

aircraft which takes place between the 

time any individual boards the aircraft 

with the intention of flight and all such 

individuals have disembarked, and in 

which any individual suffers death or 

serious injury, or in which the aircraft 

receives substantial damage. 

(b) Alcohol means the intoxicating 

agent in beverage alcohol, ethyl alcohol, 

or other low molecular weight alcohols, 

including methyl or isopropyl alcohol. 

(c) Alcohol concentration (or content) 

means the alcohol in a volume of breath 

expressed in terms of grams of alcohol 

per 210 liters of breath as indicated by 

an evidential breath test under subpart 

F of this part. 

(d) Alcohol use means the 

consumption of any beverage, mixture, 

or preparation, including any 

medication, containing alcohol. 

(e) Contractor is an individual or 

company that performs a safetysensitive function by contract for an 

employer or another contractor. 

(f) Covered employee means an 

individual who performs, either directly 

or by contract, a safety-sensitive 

function listed in §§ 120.105 and 

120.215 for an employer (as defined in 

paragraph (i) of this section). For 

purposes of pre-employment testing 

only, the term ‘‘covered employee’’ 

includes an individual applying to 

perform a safety-sensitive function. 

(g) DOT agency means an agency (or 

‘‘operating administration’’) of the 

United States Department of 

Transportation administering 

regulations requiring drug testing (14 

CFR part 61 et al.; 46 CFR part 16; 49 

CFR parts 199, 219, and 382) in 

accordance with 49 CFR part 40. 

(h) Employee is an individual who is 

hired, either directly or by contract, to 

perform a safety-sensitive function for 

an employer, as defined in paragraph (i) 

of this section. An employee is also an 

individual who transfers into a position 

to perform a safety-sensitive function for 

an employer. 

(i) Employer is a part 119 certificate 

holder with authority to operate under 

parts 121 and/or 135 of this chapter, an 

operator as defined in § 91.147 of this 

chapter, or an air traffic control facility 

not operated by the FAA or by or under 

contract to the U.S. Military. An 

employer may use a contract employee 

who is not included under that 

employer’s FAA-mandated drug testing 


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program to perform a safety-sensitive 

function only if that contract employee 

is included under the contractor’s FAAmandated drug testing program and is 

performing a safety-sensitive function 

on behalf of that contractor (i.e., within 

the scope of employment with the 

contractor.) 

(j) Hire means retaining an individual 

for a safety-sensitive function as a paid 

employee, as a volunteer, or through 

barter or other form of compensation. 

(k) Performing (a safety-sensitive 

function): an employee is considered to 

be performing a safety-sensitive 

function during any period in which he 

or she is actually performing, ready to 

perform, or immediately available to 

perform such function. 

(l) Positive rate for random drug 

testing means the number of verified 

positive results for random drug tests 

conducted under subpart E of this part, 

plus the number of refusals of random 

drug tests required by subpart E of this 

part, divided by the total number of 

random drug test results (i.e., positives, 

negatives, and refusals) under subpart E 

of this part. 

(m) Prohibited drug means marijuana, 

cocaine, opiates, phencyclidine (PCP), 

and amphetamines, as specified in 49 

CFR 40.85. 

(n) Refusal to submit to alcohol test 

means that a covered employee has 

engaged in conduct including but not 

limited to that described in 49 CFR 

40.261, or has failed to remain readily 

available for post-accident testing as 

required by subpart F of this part. 

(o) Refusal to submit to drug test 

means that an employee engages in 

conduct including but not limited to 

that described in 49 CFR 40.191. 

(p) Safety-sensitive function means a 

function listed in §§ 120.105 and 

120.215. 

(q) Verified negative drug test result 

means a drug test result from an HHScertified laboratory that has undergone 

review by an MRO and has been 

determined by the MRO to be a negative 

result. 

(r) Verified positive drug test result 

means a drug test result from an HHScertified laboratory that has undergone 

review by an MRO and has been 

determined by the MRO to be a positive 

result. 

(s) Violation rate for random alcohol 

testing means the number of 0.04, and 

above, random alcohol confirmation test 

results conducted under subpart F of 

this part, plus the number of refusals of 

random alcohol tests required by 

subpart F of this part, divided by the 

total number of random alcohol 

screening tests (including refusals) 

conducted under subpart F of this part. 

Subpart B—Individuals Certificated 

Under Parts 61, 63, and 65 

§ 120.11 Refusal to submit to a drug or 

alcohol test by a Part 61 certificate holder. 

(a) This section applies to all 

individuals who hold a certificate under 

part 61 of this chapter and who are 

subject to drug and alcohol testing 

under this part. 

(b) Refusal by the holder of a 

certificate issued under part 61 of this 

chapter to take a drug or alcohol test 

required under the provisions of this 

part is grounds for: 

(1) Denial of an application for any 

certificate, rating, or authorization 

issued under part 61 of this chapter for 

a period of up to 1 year after the date 

of such refusal; and 

(2) Suspension or revocation of any 

certificate, rating, or authorization 

issued under part 61 of this chapter. 

§ 120.13 Refusal to submit to a drug or 

alcohol test by a Part 63 certificate holder. 

(a) This section applies to all 

individuals who hold a certificate under 

part 63 of this chapter and who are 

subject to drug and alcohol testing 

under this part. 

(b) Refusal by the holder of a 

certificate issued under part 63 of this 

chapter to take a drug or alcohol test 

required under the provisions of this 

part is grounds for: 

(1) Denial of an application for any 

certificate, rating, or authorization 

issued under part 63 of this chapter for 

a period of up to 1 year after the date 

of such refusal; and 

(2) Suspension or revocation of any 

certificate, rating, or authorization 

issued under part 63 of this chapter. 

§ 120.15 Refusal to submit to a drug or 

alcohol test by a Part 65 certificate holder. 

(a) This section applies to all 

individuals who hold a certificate under 

part 65 of this chapter and who are 

subject to drug and alcohol testing 

under this part. 

(b) Refusal by the holder of a 

certificate issued under part 65 of this 

chapter to take a drug or alcohol test 

required under the provisions of this 

part is grounds for: 

(1) Denial of an application for any 

certificate, rating, or authorization 

issued under part 65 of this chapter for 

a period of up to 1 year after the date 

of such refusal; and 

(2) Suspension or revocation of any 

certificate, rating, or authorization 

issued under part 65 of this chapter. 

Subpart C—Air Traffic Controllers 

§ 120.17 Use of prohibited drugs. 

(a) Each employer shall provide each 

employee performing a function listed 

in subpart E of this part, and his or her 

supervisor, with the training specified 

in that subpart. No employer may use 

any contractor to perform an air traffic 

control function unless that contractor 

provides each of its employees 

performing that function for the 

employer, and his or her supervisor, 

with the training specified in subpart E 

of this part. 

(b) No employer may knowingly use 

any individual to perform, nor may any 

individual perform for an employer, 

either directly or by contract, any air 

traffic control function while that 

individual has a prohibited drug, as 

defined in subpart E of this part, in his 

or her system. 

(c) No employer shall knowingly use 

any individual to perform, nor may any 

individual perform for an employer, 

either directly or by contract, any air 

traffic control function if the individual 

has a verified positive drug test result 

on, or has refused to submit to, a drug 

test required by subpart E of this part 

and the individual has not met the 

requirements of subpart E of this part for 

returning to the performance of safetysensitive duties. 

(d) Each employer shall test each of 

its employees who perform any air 

traffic control function in accordance 

with subpart E of this part. No employer 

may use any contractor to perform any 

air traffic control function unless that 

contractor tests each employee 

performing such a function for the 

employer in accordance with subpart E 

of this part. 

§ 120.19 Misuse of alcohol. 

(a) This section applies to covered 

employees who perform air traffic 

control duties directly or by contract for 

an employer that is an air traffic control 

facility not operated by the FAA or the 

US military. 

(b) Alcohol concentration. No covered 

employee shall report for duty or remain 

on duty requiring the performance of 

safety-sensitive functions while having 

an alcohol concentration of 0.04 or 

greater. No employer having actual 

knowledge that an employee has an 

alcohol concentration of 0.04 or greater 

shall permit the employee to perform or 

continue to perform safety-sensitive 

functions. 

(c) On-duty use. No covered employee 

shall use alcohol while performing 

safety-sensitive functions. No employer 

having actual knowledge that a covered 

employee is using alcohol while 

performing safety-sensitive functions 

shall permit the employee to perform or 

continue to perform safety-sensitive 

functions. 


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(d) Pre-duty use. No covered 

employee shall perform air traffic 

control duties within 8 hours after using 

alcohol. No employer having actual 

knowledge that such an employee has 

used alcohol within 8 hours shall 

permit the employee to perform or 

continue to perform air traffic control 

duties. 

(e) Use following an accident. No 

covered employee who has actual 

knowledge of an accident involving an 

aircraft for which he or she performed 

a safety-sensitive function at or near the 

time of the accident shall use alcohol for 

8 hours following the accident, unless 

he or she has been given a post-accident 

test under subpart F of this part or the 

employer has determined that the 

employee’s performance could not have 

contributed to the accident. 

(f) Refusal to submit to a required 

alcohol test. A covered employee may 

not refuse to submit to any alcohol test 

required under subpart F of this part. 

An employer may not permit an 

employee who refuses to submit to such 

a test to perform or continue to perform 

safety-sensitive functions. 

§ 120.21 Testing for alcohol. 

(a) Each air traffic control facility not 

operated by the FAA or the U.S. military 

must establish an alcohol testing 

program in accordance with the 

provisions of subpart F of this part. 

(b) No employer shall use any 

individual who meets the definition of 

covered employee in subpart A of this 

part to perform a safety-sensitive 

function listed in subpart F of this part 

unless that individual is subject to 

testing for alcohol misuse in accordance 

with the provisions of that subpart. 

Subpart D—Part 119 Certificate 

Holders Authorized To Conduct 

Operations under Part 121 or Part 135 

or Operators Under § 91.147 of This 

Chapter and Safety-Sensitive 

Employees 

§ 120.31 Prohibited drugs. 

(a) Each certificate holder or operator 

shall provide each employee performing 

a function listed in subpart E of this 

part, and his or her supervisor, with the 

training specified in that subpart. 

(b) No certificate holder or operator 

may use any contractor to perform a 

function listed in subpart E of this part 

unless that contractor provides each of 

its employees performing that function 

for the certificate holder or operator, 

and his or her supervisor, with the 

training specified in that subpart. 

§ 120.33 Use of prohibited drugs. 

(a) This section applies to individuals 

who perform a function listed in subpart 

E of this part for a certificate holder or 

operator. For the purpose of this section, 

an individual who performs such a 

function pursuant to a contract with the 

certificate holder or the operator is 

considered to be performing that 

function for the certificate holder or the 

operator. 

(b) No certificate holder or operator 

may knowingly use any individual to 

perform, nor may any individual 

perform for a certificate holder or an 

operator, either directly or by contract, 

any function listed in subpart E of this 

part while that individual has a 

prohibited drug, as defined in that 

subpart, in his or her system. 

(c) No certificate holder or operator 

shall knowingly use any individual to 

perform, nor shall any individual 

perform for a certificate holder or 

operator, either directly or by contract, 

any safety-sensitive function if that 

individual has a verified positive drug 

test result on, or has refused to submit 

to, a drug test required by subpart E of 

this part and the individual has not met 

the requirements of that subpart for 

returning to the performance of safetysensitive duties. 

§ 120.35 Testing for prohibited drugs. 

(a) Each certificate holder or operator 

shall test each of its employees who 

perform a function listed in subpart E of 

this part in accordance with that 

subpart. 

(b) Except as provided in paragraph 

(c) of this section, no certificate holder 

or operator may use any contractor to 

perform a function listed in subpart E of 

this part unless that contractor tests 

each employee performing such a 

function for the certificate holder or 

operator in accordance with that 

subpart. 

(c) If a certificate holder conducts an 

on-demand operation into an airport at 

which no maintenance providers are 

available that are subject to the 

requirements of subpart E of this part 

and emergency maintenance is required, 

the certificate holder may use 

individuals not meeting the 

requirements of paragraph (b) of this 

section to provide such emergency 

maintenance under both of the 

following conditions: 

(1) The certificate holder must give 

written notification of the emergency 

maintenance to the Drug Abatement 

Program Division, AAM–800, 800 

Independence Avenue, SW., 

Washington, DC 20591, within 10 days 

after being provided same in accordance 

with this paragraph. A certificate holder 

must retain copies of all such written 

notifications for two years. 

(2) The aircraft must be reinspected 

by maintenance personnel who meet the 

requirements of paragraph (b) of this 

section when the aircraft is next at an 

airport where such maintenance 

personnel are available. 

(d) For purposes of this section, 

emergency maintenance means 

maintenance that— 

(1) Is not scheduled and 

(2) Is made necessary by an aircraft 

condition not discovered prior to the 

departure for that location. 

§ 120.37 Misuse of alcohol. 

(a) General. This section applies to 

covered employees who perform a 

function listed in subpart F of this part 

for a certificate holder. For the purpose 

of this section, an individual who meets 

the definition of covered employee in 

subpart F of this part is considered to be 

performing the function for the 

certificate holder. 

(b) Alcohol concentration. No covered 

employee shall report for duty or remain 

on duty requiring the performance of 

safety-sensitive functions while having 

an alcohol concentration of 0.04 or 

greater. No certificate holder having 

actual knowledge that an employee has 

an alcohol concentration of 0.04 or 

greater shall permit the employee to 

perform or continue to perform safetysensitive functions. 

(c) On-duty use. No covered employee 

shall use alcohol while performing 

safety-sensitive functions. No certificate 

holder having actual knowledge that a 

covered employee is using alcohol 

while performing safety-sensitive 

functions shall permit the employee to 

perform or continue to perform safetysensitive functions. 

(d) Pre-duty use. (1) No covered 

employee shall perform flight 

crewmember or flight attendant duties 

within 8 hours after using alcohol. No 

certificate holder having actual 

knowledge that such an employee has 

used alcohol within 8 hours shall 

permit the employee to perform or 

continue to perform the specified 

duties. 

(2) No covered employee shall 

perform safety-sensitive duties other 

than those specified in paragraph (d)(1) 

of this section within 4 hours after using 

alcohol. No certificate holder having 

actual knowledge that such an employee 

has used alcohol within 4 hours shall 

permit the employee to perform or to 

continue to perform safety-sensitive 

functions. 

(e) Use following an accident. No 

covered employee who has actual 

knowledge of an accident involving an 

aircraft for which he or she performed 

a safety-sensitive function at or near the 


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time of the accident shall use alcohol for 

8 hours following the accident, unless 

he or she has been given a post-accident 

test under subpart F of this part, or the 

employer has determined that the 

employee’s performance could not have 

contributed to the accident. 

(f) Refusal to submit to a required 

alcohol test. A covered employee must 

not refuse to submit to any alcohol test 

required under subpart F of this part. A 

certificate holder must not permit an 

employee who refuses to submit to such 

a test to perform or continue to perform 

safety-sensitive functions. 

§ 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 

§ 120.101 Scope. 

This subpart contains the standards 

and components that must be included 

in a drug testing program required by 

this part. 

§ 120.103 General. 

(a) Purpose. The purpose of this 

subpart is to establish a program 

designed to help prevent accidents and 

injuries resulting from the use of 

prohibited drugs by employees who 

perform safety-sensitive functions. 

(b) DOT procedures. (1) Each 

employer shall ensure that drug testing 

programs conducted pursuant to 14 CFR 

parts 65, 91, 121, and 135 comply with 

the requirements of this subpart and the 

‘‘Procedures for Transportation 

Workplace Drug Testing Programs’’ 

published by the Department of 

Transportation (DOT) (49 CFR part 40). 

(2) An employer may not use or 

contract with any drug testing 

laboratory that is not certified by the 

Department of Health and Human 

Services (HHS) under the National 

Laboratory Certification Program. 

(c) Employer responsibility. As an 

employer, you are responsible for all 

actions of your officials, representatives, 

and service agents in carrying out the 

requirements of this subpart and 49 CFR 

part 40. 

(d) Applicable Federal Regulations. 

The following applicable regulations 

appear in 49 CFR or 14 CFR: 

(1) 49 CFR Part 40—Procedures for 

Transportation Workplace Drug Testing 

Programs 

(2) 14 CFR: 

(i) § 67.107—First-Class Airman 

Medical Certificate, Mental. 

(ii) § 67.207—Second-Class Airman 

Medical Certificate, Mental. 

(iii) § 67.307—Third-Class Airman 

Medical Certificate, Mental. 

(iv) § 91.147—Passenger carrying 

flight for compensation or hire. 

(e) Falsification. No individual may 

make, or cause to be made, any of the 

following: 

(1) Any fraudulent or intentionally 

false statement in any application of a 

drug testing program. 

(2) Any fraudulent or intentionally 

false entry in any record or report that 

is made, kept, or used to show 

compliance with this part. 

(3) Any reproduction or alteration, for 

fraudulent purposes, of any report or 

record required to be kept by this part. 

§ 120.105 Employees who must be tested. 

Each employee, including any 

assistant, helper, or individual in a 

training status, who performs a safetysensitive function listed in this section 

directly or by contract (including by 

subcontract at any tier) for an employer 

as defined in this subpart must be 

subject to drug testing under a drug 

testing program implemented in 

accordance with this subpart. This 

includes full-time, part-time, temporary, 

and intermittent employees regardless 

of the degree of supervision. The safetysensitive functions are: 

(a) Flight crewmember duties. 

(b) Flight attendant duties. 

(c) Flight instruction duties. 

(d) Aircraft dispatcher duties. 

(e) Aircraft maintenance and 

preventive maintenance duties. 

(f) Ground security coordinator 

duties. 

(g) Aviation screening duties. 

(h) Air traffic control duties. 

§ 120.107 Substances for which testing 

must be conducted. 

Each employer shall test each 

employee who performs a safetysensitive function for evidence of 

marijuana, cocaine, opiates, 

phencyclidine (PCP), and 

amphetamines during each test required 

by § 120.109. 

§ 120.109 Types of drug testing required. 

Each employer shall conduct the 

types of testing described in this section 

in accordance with the procedures set 

forth in this subpart and the DOT 

‘‘Procedures for Transportation 

Workplace Drug Testing Programs’’ (49 

CFR part 40). 

(a) Pre-employment drug testing. (1) 

No employer may hire any individual 

for a safety-sensitive function listed in 

§ 120.105 unless the employer first 

conducts a pre-employment test and 

receives a verified negative drug test 

result for that individual. 

(2) No employer may allow an 

individual to transfer from a nonsafetysensitive to a safety-sensitive function 

unless the employer first conducts a 

pre-employment test and receives a 

verified negative drug test result for the 

individual. 

(3) Employers must conduct another 

pre-employment test and receive a 

verified negative drug test result before 

hiring or transferring an individual into 

a safety-sensitive function if more than 

180 days elapse between conducting the 

pre-employment test required by 

paragraphs (a)(1) or (2) of this section 

and hiring or transferring the individual 

into a safety-sensitive function, 

resulting in that individual being 

brought under an FAA drug testing 

program. 

(4) If the following criteria are met, an 

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employment test, and if such a test is 

conducted, the employer must receive a 

negative test result before putting the 

individual into a safety-sensitive 

function: 

(i) The individual previously 

performed a safety-sensitive function for 

the employer and the employer is not 

required to pre-employment test the 

individual under paragraphs (a)(1) or (2) 

of this section before putting the 

individual to work in a safety-sensitive 

function; 

(ii) The employer removed the 

individual from the employer’s random 

testing program conducted under this 

subpart for reasons other than a verified 

positive test result on an FAA-mandated 

drug test or a refusal to submit to such 

testing; and 

(iii) The individual will be returning 

to the performance of a safety-sensitive 

function. 

(5) Before hiring or transferring an 

individual to a safety-sensitive function, 

the employer must advise each 

individual that the individual will be 

required to undergo pre-employment 

testing in accordance with this subpart, 

to determine the presence of marijuana, 

cocaine, opiates, phencyclidine (PCP), 

and amphetamines, or a metabolite of 

those drugs in the individual’s system. 

The employer shall provide this same 

notification to each individual required 

by the employer to undergo preemployment testing under paragraph 

(a)(4) of this section. 

(b) Random drug testing. (1) Except as 

provided in paragraphs (b)(2) through 

(b)(4) of this section, the minimum 

annual percentage rate for random drug 

testing shall be 50 percent of covered 

employees. 

(2) The Administrator’s decision to 

increase or decrease the minimum 

annual percentage rate for random drug 

testing is based on the reported positive 

rate for the entire industry. All 

information used for this determination 

is drawn from the statistical reports 

required by § 120.119. In order to ensure 

reliability of the data, the Administrator 

considers the quality and completeness 

of the reported data, may obtain 

additional information or reports from 

employers, and may make appropriate 

modifications in calculating the 

industry positive rate. Each year, the 

Administrator will publish in the 

Federal Register the minimum annual 

percentage rate for random drug testing 

of covered employees. The new 

minimum annual percentage rate for 

random drug testing will be applicable 

starting January 1 of the calendar year 

following publication. 

(3) When the minimum annual 

percentage rate for random drug testing 

is 50 percent, the Administrator may 

lower this rate to 25 percent of all 

covered employees if the Administrator 

determines that the data received under 

the reporting requirements of this 

subpart for two consecutive calendar 

years indicate that the reported positive 

rate is less than 1.0 percent. 

(4) When the minimum annual 

percentage rate for random drug testing 

is 25 percent, and the data received 

under the reporting requirements of this 

subpart for any calendar year indicate 

that the reported positive rate is equal 

to or greater than 1.0 percent, the 

Administrator will increase the 

minimum annual percentage rate for 

random drug testing to 50 percent of all 

covered employees. 

(5) The selection of employees for 

random drug testing shall be made by a 

scientifically valid method, such as a 

random-number table or a computerbased random number generator that is 

matched with employees’ Social 

Security numbers, payroll identification 

numbers, or other comparable 

identifying numbers. Under the 

selection process used, each covered 

employee shall have an equal chance of 

being tested each time selections are 

made. 

(6) As an employer, you must select 

and test a percentage of employees at 

least equal to the minimum annual 

percentage rate each year. 

(i) As an employer, to determine 

whether you have met the minimum 

annual percentage rate, you must divide 

the number of random testing results for 

safety-sensitive employees by the 

average number of safety-sensitive 

employees eligible for random testing. 

(A) To calculate whether you have 

met the annual minimum percentage 

rate, count all random positives, random 

negatives, and random refusals as your 

‘‘random testing results.’’ 

(B) To calculate the average number of 

safety-sensitive employees eligible for 

random testing throughout the year, add 

the total number of safety-sensitive 

employees eligible for testing during 

each random testing period for the year 

and divide that total by the number of 

random testing periods. Only safetysensitive employees are to be in an 

employer’s random testing pool, and all 

safety-sensitive employees must be in 

the random pool. If you are an employer 

conducting random testing more often 

than once per month (e.g., you select 

daily, weekly, bi-weekly) you do not 

need to compute this total number of 

safety-sensitive employees more than on 

a once per month basis. 

(ii) As an employer, you may use a 

service agent to perform random 

selections for you, and your safetysensitive employees may be part of a 

larger random testing pool of safetysensitive employees. However, you 

must ensure that the service agent you 

use is testing at the appropriate 

percentage established for your industry 

and that only safety-sensitive employees 

are in the random testing pool. For 

example: 

(A) If the service agent has your 

employees in a random testing pool for 

your company alone, you must ensure 

that the testing is conducted at least at 

the minimum annual percentage rate 

under this part. 

(B) If the service agent has your 

employees in a random testing pool 

combined with other FAA-regulated 

companies, you must ensure that the 

testing is conducted at least at the 

minimum annual percentage rate under 

this part. 

(C) If the service agent has your 

employees in a random testing pool 

combined with other DOT-regulated 

companies, you must ensure that the 

testing is conducted at least at the 

highest rate required for any DOTregulated company in the pool. 

(7) Each employer shall ensure that 

random drug tests conducted under this 

subpart are unannounced and that the 

dates for administering random tests are 

spread reasonably throughout the 

calendar year. 

(8) Each employer shall require that 

each safety-sensitive employee who is 

notified of selection for random drug 

testing proceeds to the collection site 

immediately; provided, however, that if 

the employee is performing a safetysensitive function at the time of the 

notification, the employer shall instead 

ensure that the employee ceases to 

perform the safety-sensitive function 

and proceeds to the collection site as 

soon as possible. 

(9) If a given covered employee is 

subject to random drug testing under the 

drug testing rules of more than one DOT 

agency, the employee shall be subject to 

random drug testing at the percentage 

rate established for the calendar year by 

the DOT agency regulating more than 50 

percent of the employee’s function. 

(10) If an employer is required to 

conduct random drug testing under the 

drug testing rules of more than one DOT 

agency, the employer may— 

(i) Establish separate pools for random 

selection, with each pool containing the 

covered employees who are subject to 

testing at the same required rate; or 

(ii) Randomly select covered 

employees for testing at the highest 

percentage rate established for the 

calendar year by any DOT agency to 

which the employer is subject. 


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(11) An employer required to conduct 

random drug testing under the anti-drug 

rules of more than one DOT agency 

shall provide each such agency access to 

the employer’s records of random drug 

testing, as determined to be necessary 

by the agency to ensure the employer’s 

compliance with the rule. 

(c) Post-accident drug testing. Each 

employer shall test each employee who 

performs a safety-sensitive function for 

the presence of marijuana, cocaine, 

opiates, phencyclidine (PCP), and 

amphetamines, or a metabolite of those 

drugs in the employee’s system if that 

employee’s performance either 

contributed to an accident or can not be 

completely discounted as a contributing 

factor to the accident. The employee 

shall be tested as soon as possible but 

not later than 32 hours after the 

accident. The decision not to administer 

a test under this section must be based 

on a determination, using the best 

information available at the time of the 

determination, that the employee’s 

performance could not have contributed 

to the accident. The employee shall 

submit to post-accident testing under 

this section. 

(d) Drug testing based on reasonable 

cause. Each employer must test each 

employee who performs a safetysensitive function and who is 

reasonably suspected of having used a 

prohibited drug. The decision to test 

must be based on a reasonable and 

articulable belief that the employee is 

using a prohibited drug on the basis of 

specific contemporaneous physical, 

behavioral, or performance indicators of 

probable drug use. At least two of the 

employee’s supervisors, one of whom is 

trained in detection of the symptoms of 

possible drug use, must substantiate and 

concur in the decision to test an 

employee who is reasonably suspected 

of drug use; except that in the case of 

an employer, other than a part 121 

certificate holder, who employs 50 or 

fewer employees who perform safetysensitive functions, one supervisor who 

is trained in detection of symptoms of 

possible drug use must substantiate the 

decision to test an employee who is 

reasonably suspected of drug use. 

(e) Return to duty drug testing. Each 

employer shall ensure that before an 

individual is returned to duty to 

perform a safety-sensitive function after 

refusing to submit to a drug test 

required by this subpart or receiving a 

verified positive drug test result on a 

test conducted under this subpart the 

individual shall undergo a return-toduty drug test. No employer shall allow 

an individual required to undergo 

return-to-duty testing to perform a 

safety-sensitive function unless the 

employer has received a verified 

negative drug test result for the 

individual. The test cannot occur until 

after the SAP has determined that the 

employee has successfully complied 

with the prescribed education and/or 

treatment. 

(f) Follow-up drug testing. (1) Each 

employer shall implement a reasonable 

program of unannounced testing of each 

individual who has been hired to 

perform or who has been returned to the 

performance of a safety-sensitive 

function after refusing to submit to a 

drug test required by this subpart or 

receiving a verified positive drug test 

result on a test conducted under this 

subpart. 

(2) The number and frequency of such 

testing shall be determined by the 

employer’s Substance Abuse 

Professional conducted in accordance 

with the provisions of 49 CFR part 40, 

but shall consist of at least six tests in 

the first 12 months following the 

employee’s return to duty. 

(3) The employer must direct the 

employee to undergo testing for alcohol 

in accordance with subpart F of this 

part, in addition to drugs, if the 

Substance Abuse Professional 

determines that alcohol testing is 

necessary for the particular employee. 

Any such alcohol testing shall be 

conducted in accordance with the 

provisions of 49 CFR part 40. 

(4) Follow-up testing shall not exceed 

60 months after the date the individual 

begins to perform or returns to the 

performance of a safety-sensitive 

function. The Substance Abuse 

Professional may terminate the 

requirement for follow-up testing at any 

time after the first six tests have been 

conducted, if the Substance Abuse 

Professional determines that such 

testing is no longer necessary. 

§ 120.111 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. 


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§ 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 safetysensitive position. The receipt of an 

airman medical certificate does not alter 

any obligations otherwise required by 

49 CFR part 40 or this subpart. 

(3) An employer must forward to the 

Federal Air Surgeon within 2 working 

days of receipt, copies of all reports 

provided to the employer by a SAP 

regarding the following: 

(i) An individual who the MRO has 

reported to the Federal Air Surgeon 

under § 120.113 (d)(1); or 

(ii) An individual who the employer 

has reported to the Federal Air Surgeon 

under § 120.111(d). 

(4) The employer must not permit an 

employee who is required to hold an 

airman medical certificate under 14 CFR 

part 67 to perform a safety-sensitive 

duty to resume that duty until the 

employee has: 

(i) Been issued an airman medical 

certificate from the Federal Air Surgeon 

after the date of the verified positive 

drug test result or refusal to test; and 

(ii) Met the return to duty 

requirements in accordance with 49 

CFR part 40. 

(5) Reports required under this 

section shall be forwarded to the 

Federal Air Surgeon, Federal Aviation 

Administration, Office of Aerospace 

Medicine, Attn: Drug Abatement 

Division (AAM–800), 800 Independence 

Avenue, SW., Washington, DC 20591. 

(6) MROs, SAPs, and employers who 

send reports to the Federal Air Surgeon 

must keep a copy of each report for 5 

years. 

§ 120.115 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 

§ 120.115 (c). 

(3) The employer shall ensure that 

supervisors who will make reasonable 

cause determinations receive at least 60 

minutes of initial training. 

(4) The employer shall implement a 

reasonable recurrent training program 

for supervisory personnel making 

reasonable cause determinations during 

subsequent years. 

(5) The employer shall identify the 

employee and supervisor for EAP 

training in the employer’s drug testing 

plan submitted to the FAA for approval. 

§ 120.117 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: 


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If you are . . . You must . . . 

(1) A part 119 certificate holder with authority to 

operate under parts 121 and/or 135.

Obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification by contacting your FAA Principal Operations Inspector. 

(2) A sightseeing operator as defined in 

§ 91.147 of this chapter.

Register with the FAA by contacting the Flight Standards District Office nearest to your principal place of business. 

(3) An air traffic control facility not operated by 

the FAA or by or under contract to the U.S. 

Military.

Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM–800), 

800 Independence Avenue, SW., Washington, DC 20591. 

(4) A part 145 certificate holder who has your 

own drug testing program.

Obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification by contacting your 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 own drug testing 

program.

Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM–800), 

800 Independence Avenue, SW., Washington, DC 20591, if you opt to conduct your own 

drug testing program. 

(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 § 91.147 of this chapter, or if 

you intend to begin air traffic control 

operations (not operated by the FAA or 

by or under contract to the U.S. 

Military). Use it to determine whether 

you need to have an Antidrug and 

Alcohol Misuse Prevention Program 

Operations Specification, or whether 

you need to register with the FAA. Your 

employees who perform safety-sensitive 

functions must be tested in accordance 

with this subpart. The chart follows: 

If you . . . You must . . . 

(1) Apply for a part 119 certificate with authority to operate under parts 

121 or 135.

(i) Have an Antidrug and Alcohol Misuse Prevention Program Operations Specification. 

(ii) Implement an FAA drug testing program no later than the date you 

start operations, and 

(iii) Meet the requirements of this subpart. 

(2) Intend to begin operations as defined in § 91.147 of this chapter ..... (i) Register with the FAA, by contacting the Flight Standards District 

Office nearest 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 operations (at an air traffic control 

facility not operated by the FAA or by or under contract to the U.S. 

military).

(i) Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM–800), 800 Independence Avenue, SW., Washington, DC 20591 prior to starting operations. 

(ii) Implement an FAA 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 safetysensitive services by contract to a part 

119 certificate holder with authority to 

operate under parts 121 and/or 135 of 

this chapter, an operation as defined in 

§ 91.147 of this chapter, or an air traffic 

control facility not operated by the FAA 

or by or under contract to the U.S. 

military, use the following chart to 

determine what you must do if you opt 

to have your own drug testing program. 

If you . . . And you opt to conduct your own drug program, you must . . . 

(1) Are a part 145 certificate holder ................... (i) Have an Antidrug and Alcohol Misuse Prevention Program Operations Specification or register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM–800), 800 

Independence Avenue, SW., Washington, DC 20591, 

(ii) Implement an FAA drug testing program no later than the date you start performing safetysensitive functions for a part 119 certificate holder with authority to operate under parts 121 

or 135, or operator as defined in § 91.147 of this chapter, and 

(iii) Meet the requirements of this subpart as if you were an employer. 

(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 safetysensitive functions for a part 119 certificate holder with authority to operate under parts 121 

or 135, or operator as defined in § 91.147 of this chapter, or an air traffic control facility not 

operated by the FAA or by or under contract to the U.S. Military, and 

(iii) Meet the requirements of this subpart as if you were an employer. 

(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. 


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Provide him/her with the following 

information: 

(i) Company name. 

(ii) Certificate number. 

(iii) Telephone number. 

(iv) Address where your drug and 

alcohol testing program records are 

kept. 

(v) Whether you have 50 or more 

safety-sensitive employees, or 49 or 

fewer safety-sensitive employees. (Part 

119 certificate holders with authority to 

operate only under part 121 of this 

chapter are not required to provide this 

information.) 

(2) You must certify on your Antidrug 

and Alcohol Misuse Prevention Program 

Operations Specification issued by your 

FAA Principal Operations Inspector or 

Principal Maintenance Inspector that 

you will comply with this part and 49 

CFR part 40. 

(3) You are required to obtain only 

one Antidrug and Alcohol Misuse 

Prevention Program Operations 

Specification to satisfy this requirement 

under this part. 

(4) You must update the Antidrug and 

Alcohol Misuse Prevention Program 

Operations Specification when any 

changes to the information contained in 

the Operation Specification occur. 

(e) Registering a drug and alcohol 

testing program with the FAA. (1) To 

register with the FAA, submit the 

following information: 

(i) Company name. 

(ii) Telephone number. 

(iii) Address where your drug and 

alcohol testing program records are 

kept. 

(iv) Type of safety-sensitive functions 

you perform for an employer (such as 

flight instruction duties, aircraft 

dispatcher duties, maintenance or 

preventive maintenance duties, ground 

security coordinator duties, aviation 

screening duties, air traffic control 

duties). 

(v) Whether you have 50 or more 

safety-sensitive employees, or 49 or 

fewer covered employees. 

(vi) A signed statement indicating 

that: your company will comply with 

this part and 49 CFR part 40; and, if you 

are a contractor, you intend to provide 

safety-sensitive functions by contract to 

a part 119 certificate holder with 

authority to operate under part 121 and/ 

or part 135 of this chapter, an operator 

as defined in § 91.147 of this chapter, or 

an air traffic control facility not 

operated by the FAA or by or under 

contract to the U.S. military. 

(2) Send this information in the form 

and manner prescribed by the 

Administrator, in duplicate to: The 

Federal Aviation Administration, Office 

of Aerospace Medicine, Drug Abatement 

Division (AAM–800), 800 Independence 

Avenue, SW., Washington, DC 20591. 

(3) Update the registration 

information as changes occur. Send the 

updates in duplicate to the address 

specified in paragraph (e)(2) of this 

section. 

(4) This registration will satisfy the 

registration requirements for both your 

drug testing program under this subpart 

and your alcohol testing program under 

subpart F of this part. 

§ 120.119 Annual reports. 

(a) Annual reports of testing results 

must be submitted to the FAA by March 

15 of the succeeding calendar year for 

the prior calendar year (January 1 

through December 31) in accordance 

with the following provisions: 

(1) Each part 121 certificate holder 

shall submit an annual report each year. 

(2) Each entity conducting a drug 

testing program under this part, other 

than a part 121 certificate holder, that 

has 50 or more employees performing a 

safety-sensitive function on January 1 of 

any calendar year shall submit an 

annual report to the FAA for that 

calendar year. 

(3) The Administrator reserves the 

right to require that aviation employers 

not otherwise required to submit annual 

reports prepare and submit such reports 

to the FAA. Employers that will be 

required to submit annual reports under 

this provision will be notified in writing 

by the FAA. 

(b) As an employer, you must use the 

Management Information System (MIS) 

form and instructions as required by 49 

CFR part 40 (at 49 CFR 40.26 and 

subpart H to 49 CFR part 40). You may 

also use the electronic version of the 

MIS form provided by DOT. The 

Administrator may designate means 

(e.g., electronic program transmitted via 

the Internet) other than hard-copy, for 

MIS form submission. For information 

on where to submit MIS forms and for 

the electronic version of the form, see: 

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. 

§ 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. 

§ 120.123 Drug testing outside the territory 

of the United States. 

(a) No part of the testing process 

(including specimen collection, 

laboratory processing, and MRO actions) 

shall be conducted outside the territory 

of the United States. 

(1) Each employee who is assigned to 

perform safety-sensitive functions solely 

outside the territory of the United States 

shall be removed from the random 

testing pool upon the inception of such 

assignment. 

(2) Each covered employee who is 

removed from the random testing pool 

under this section shall be returned to 

the random testing pool when the 

employee resumes the performance of 

safety-sensitive functions wholly or 

partially within the territory of the 

United States. 

(b) The provisions of this subpart 

shall not apply to any individual who 

performs a function listed in § 120.105 

by contract for an employer outside the 

territory of the United States. 

§ 120.125 Waivers from 49 CFR 40.21. 

An employer subject to this part may 

petition the Drug Abatement Division, 

Office of Aerospace Medicine, for a 

waiver allowing the employer to stand 

down an employee following a report of 

a laboratory confirmed positive drug test 

or refusal, pending the outcome of the 

verification process. 

(a) Each petition for a waiver must be 

in writing and include substantial facts 

and justification to support the waiver. 

Each petition must satisfy the 

substantive requirements for obtaining a 

waiver, as provided in 49 CFR 40.21. 

(b) Each petition for a waiver must be 

submitted to the Federal Aviation 

Administration, Office of Aerospace 

Medicine, Drug Abatement Division 

(AAM–800), 800 Independence Avenue, 

SW., Washington, DC 20591. 

(c) The Administrator may grant a 

waiver subject to 49 CFR 40.21(d). 

Subpart F—Alcohol Testing Program 

Requirements 

§ 120.201 Scope. 

This subpart contains the standards 

and components that must be included 


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in an alcohol testing program required 

by this part. 

§ 120.203 General. 

(a) Purpose. The purpose of this 

subpart is to establish programs 

designed to help prevent accidents and 

injuries resulting from the misuse of 

alcohol by employees who perform 

safety-sensitive functions in aviation. 

(b) Alcohol testing procedures. Each 

employer shall ensure that all alcohol 

testing conducted pursuant to this 

subpart complies with the procedures 

set forth in 49 CFR part 40. The 

provisions of 49 CFR part 40 that 

address alcohol testing are made 

applicable to employers by this subpart. 

(c) Employer responsibility. As an 

employer, you are responsible for all 

actions of your officials, representatives, 

and service agents in carrying out the 

requirements of the DOT agency 

regulations. 

§ 120.205 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. 

§ 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. 

§ 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. 

§ 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) § 67.107—First-Class Airman 

Medical Certificate, Mental. 

(2) § 67.207—Second-Class Airman 

Medical Certificate, Mental. 

(3) § 67.307—Third-Class Airman 

Medical Certificate, Mental. 

(4) § 91.147—Passenger carrying 

flights for compensation or hire. 

§ 120.213 Falsification. 

No individual may make, or cause to 

be made, any of the following: 

(a) Any fraudulent or intentionally 

false statement in any application of an 

alcohol testing program. 

(b) Any fraudulent or intentionally 

false entry in any record or report that 

is made, kept, or used to show 

compliance with this subpart. 

(c) Any reproduction or alteration, for 

fraudulent purposes, of any report or 

record required to be kept by this 

subpart. 

§ 120.215 Covered employees. 

(a) Each employee, including any 

assistant, helper, or individual in a 

training status, who performs a safetysensitive function listed in this section 

directly or by contract (including by 

subcontract at any tier) for an employer 

as defined in this subpart must be 

subject to alcohol testing under an 

alcohol testing program implemented in 

accordance with this subpart. This 

includes full-time, part-time, temporary, 

and intermittent employees regardless 

of the degree of supervision. The safetysensitive functions are: 

(1) Flight crewmember duties. 

(2) Flight attendant duties. 

(3) Flight instruction duties. 

(4) Aircraft dispatcher duties. 

(5) Aircraft maintenance or preventive 

maintenance duties. 

(6) Ground security coordinator 

duties. 

(7) Aviation screening duties. 

(8) Air traffic control duties. 

(b) Each employer must identify any 

employee who is subject to the alcohol 

testing regulations of more than one 

DOT agency. Prior to conducting any 

alcohol test on a covered employee 

subject to the alcohol testing regulations 

of more than one DOT agency, the 

employer must determine which DOT 

agency authorizes or requires the test. 

§ 120.217 Tests required. 

(a) Pre-employment alcohol testing. 

As an employer, you may, but are not 

required to, conduct pre-employment 

alcohol testing under this subpart. If you 

choose to conduct pre-employment 

alcohol testing, you must comply with 

the following requirements: 

(1) You must conduct a preemployment alcohol test before the first 

performance of safety-sensitive 

functions by every covered employee 

(whether a new employee or someone 

who has transferred to a position 

involving the performance of safetysensitive functions). 

(2) You must treat all safety-sensitive 

employees performing safety-sensitive 

functions the same for the purpose of 

pre-employment alcohol testing (i.e., 

you must not test some covered 

employees and not others). 

(3) You must conduct the preemployment tests after making a 

contingent offer of employment or 

transfer, subject to the employee passing 

the pre-employment alcohol test. 

(4) You must conduct all preemployment alcohol tests using the 

alcohol testing procedures of 49 CFR 

part 40. 

(5) You must not allow a covered 

employee to begin performing safetysensitive functions unless the result of 

the employee’s test indicates an alcohol 

concentration of less than 0.04. If a preemployment test result under this 

paragraph indicates an alcohol 

concentration of 0.02 or greater but less 

than 0.04, the provisions of § 120.221(f) 

apply. 

(b) Post-accident alcohol testing. (1) 

As soon as practicable following an 

accident, each employer shall test each 

surviving covered employee for alcohol 

if that employee’s performance of a 

safety-sensitive function either 

contributed to the accident or cannot be 

completely discounted as a contributing 

factor to the accident. The decision not 

to administer a test under this section 

shall be based on the employer’s 

determination, using the best available 

information at the time of the 

determination, that the covered 

employee’s performance could not have 

contributed to the accident. 

(2) If a test required by this section is 

not administered within 2 hours 

following the accident, the employer 

shall prepare and maintain on file a 

record stating the reasons the test was 

not promptly administered. If a test 

required by this section is not 

administered within 8 hours following 

the accident, the employer shall cease 

attempts to administer an alcohol test 

and shall prepare and maintain the 

same record. Records shall be submitted 

to the FAA upon request of the 

Administrator or his or her designee. 


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(3) A covered employee who is 

subject to post-accident testing shall 

remain readily available for such testing 

or may be deemed by the employer to 

have refused to submit to testing. 

Nothing in this section shall be 

construed to require the delay of 

necessary medical attention for injured 

people following an accident or to 

prohibit a covered employee from 

leaving the scene of an accident for the 

period necessary to obtain assistance in 

responding to the accident or to obtain 

necessary emergency medical care. 

(c) Random alcohol testing. (1) Except 

as provided in paragraphs (c)(2) through 

(c)(4) of this section, the minimum 

annual percentage rate for random 

alcohol testing will be 25 percent of the 

covered employees. 

(2) The Administrator’s decision to 

increase or decrease the minimum 

annual percentage rate for random 

alcohol testing is based on the violation 

rate for the entire industry. All 

information used for this determination 

is drawn from MIS reports required by 

this subpart. In order to ensure 

reliability of the data, the Administrator 

considers the quality and completeness 

of the reported data, may obtain 

additional information or reports from 

employers, and may make appropriate 

modifications in calculating the 

industry violation rate. Each year, the 

Administrator will publish in the 

Federal Register the minimum annual 

percentage rate for random alcohol 

testing of covered employees. The new 

minimum annual percentage rate for 

random alcohol testing will be 

applicable starting January 1 of the 

calendar year following publication. 

(3)(i) When the minimum annual 

percentage rate for random alcohol 

testing is 25 percent or more, the 

Administrator may lower this rate to 10 

percent of all covered employees if the 

Administrator determines that the data 

received under the reporting 

requirements of this subpart for two 

consecutive calendar years indicate that 

the violation rate is less than 0.5 

percent. 

(ii) When the minimum annual 

percentage rate for random alcohol 

testing is 50 percent, the Administrator 

may lower this rate to 25 percent of all 

covered employees if the Administrator 

determines that the data received under 

the reporting requirements of this 

subpart for two consecutive calendar 

years indicate that the violation rate is 

less than 1.0 percent but equal to or 

greater than 0.5 percent. 

(4)(i) When the minimum annual 

percentage rate for random alcohol 

testing is 10 percent, and the data 

received under the reporting 

requirements of this subpart for that 

calendar year indicate that the violation 

rate is equal to or greater than 0.5 

percent but less than 1.0 percent, the 

Administrator will increase the 

minimum annual percentage rate for 

random alcohol testing to 25 percent of 

all covered employees. 

(ii) When the minimum annual 

percentage rate for random alcohol 

testing is 25 percent or less, and the data 

received under the reporting 

requirements of this subpart for that 

calendar year indicate that the violation 

rate is equal to or greater than 1.0 

percent, the Administrator will increase 

the minimum annual percentage rate for 

random alcohol testing to 50 percent of 

all covered employees. 

(5) The selection of employees for 

random alcohol testing shall be made by 

a scientifically valid method, such as a 

random-number table or a computerbased random number generator that is 

matched with employees’ Social 

Security numbers, payroll identification 

numbers, or other comparable 

identifying numbers. Under the 

selection process used, each covered 

employee shall have an equal chance of 

being tested each time selections are 

made. 

(6) As an employer, you must select 

and test a percentage of employees at 

least equal to the minimum annual 

percentage rate each year. 

(i) As an employer, to determine 

whether you have met the minimum 

annual percentage rate, you must divide 

the number of random alcohol screening 

test results for safety-sensitive 

employees by the average number of 

safety-sensitive employees eligible for 

random testing. 

(A) To calculate whether you have 

met the annual minimum percentage 

rate, count all random screening test 

results below 0.02 breath alcohol 

concentration, random screening test 

results of 0.02 or greater breath alcohol 

concentration, and random refusals as 

your ‘‘random alcohol screening test 

results.’’ 

(B) To calculate the average number of 

safety-sensitive employees eligible for 

random testing throughout the year, add 

the total number of safety-sensitive 

employees eligible for testing during 

each random testing period for the year 

and divide that total by the number of 

random testing periods. Only safetysensitive employees are to be in an 

employer’s random testing pool, and all 

safety-sensitive employees must be in 

the random pool. If you are an employer 

conducting random testing more often 

than once per month (e.g., you select 

daily, weekly, bi-weekly) you do not 

need to compute this total number of 

safety-sensitive employees more than on 

a once per month basis. 

(ii) As an employer, you may use a 

service agent to perform random 

selections for you, and your safetysensitive employees may be part of a 

larger random testing pool of safetysensitive employees. However, you 

must ensure that the service agent you 

use is testing at the appropriate 

percentage established for your industry 

and that only safety-sensitive employees 

are in the random testing pool. For 

example: 

(A) If the service agent has your 

employees in a random testing pool for 

your company alone, you must ensure 

that the testing is conducted at least at 

the minimum annual percentage rate 

under this part. 

(B) If the service agent has your 

employees in a random testing pool 

combined with other FAA-regulated 

companies, you must ensure that the 

testing is conducted at least at the 

minimum annual percentage rate under 

this part. 

(C) If the service agent has your 

employees in a random testing pool 

combined with other DOT-regulated 

companies, you must ensure that the 

testing is conducted at least at the 

highest rate required for any DOTregulated company in the pool. 

(7) Each employer shall ensure that 

random alcohol tests conducted under 

this subpart are unannounced and that 

the dates for administering random tests 

are spread reasonably throughout the 

calendar year. 

(8) Each employer shall require that 

each covered employee who is notified 

of selection for random testing proceeds 

to the testing site immediately; 

provided, however, that if the employee 

is performing a safety-sensitive function 

at the time of the notification, the 

employer shall instead ensure that the 

employee ceases to perform the safetysensitive function and proceeds to the 

testing site as soon as possible. 

(9) A covered employee shall only be 

randomly tested while the employee is 

performing safety-sensitive functions; 

just before the employee is to perform 

safety-sensitive functions; or just after 

the employee has ceased performing 

such functions. 

(10) If a given covered employee is 

subject to random alcohol testing under 

the alcohol testing rules of more than 

one DOT agency, the employee shall be 

subject to random alcohol testing at the 

percentage rate established for the 

calendar year by the DOT agency 

regulating more than 50 percent of the 

employee’s functions. 

(11) If an employer is required to 

conduct random alcohol testing under 


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the alcohol testing rules of more than 

one DOT agency, the employer may— 

(i) Establish separate pools for random 

selection, with each pool containing the 

covered employees who are subject to 

testing at the same required rate; or 

(ii) Randomly select such employees 

for testing at the highest percentage rate 

established for the calendar year by any 

DOT agency to which the employer is 

subject. 

(d) Reasonable suspicion alcohol 

testing. (1) An employer shall require a 

covered employee to submit to an 

alcohol test when the employer has 

reasonable suspicion to believe that the 

employee has violated the alcohol 

misuse prohibitions in §§ 120.19 or 

120.37. 

(2) The employer’s determination that 

reasonable suspicion exists to require 

the covered employee to undergo an 

alcohol test shall be based on specific, 

contemporaneous, articulable 

observations concerning the appearance, 

behavior, speech or body odors of the 

employee. The required observations 

shall be made by a supervisor who is 

trained in detecting the symptoms of 

alcohol misuse. The supervisor who 

makes the determination that reasonable 

suspicion exists shall not conduct the 

breath alcohol test on that employee. 

(3) Alcohol testing is authorized by 

this section only if the observations 

required by paragraph (d)(2) of this 

section are made during, just preceding, 

or just after the period of the work day 

that the covered employee is required to 

be in compliance with this rule. An 

employee may be directed by the 

employer to undergo reasonable 

suspicion testing for alcohol only while 

the employee is performing safetysensitive functions; just before the 

employee is to perform safety-sensitive 

functions; or just after the employee has 

ceased performing such functions. 

(4)(i) If a test required by this section 

is not administered within 2 hours 

following the determination made under 

paragraph (d)(2) of this section, the 

employer shall prepare and maintain on 

file a record stating the reasons the test 

was not promptly administered. If a test 

required by this section is not 

administered within 8 hours following 

the determination made under 

paragraph (d)(2) of this section, the 

employer shall cease attempts to 

administer an alcohol test and shall 

state in the record the reasons for not 

administering the test. 

(ii) Notwithstanding the absence of a 

reasonable suspicion alcohol test under 

this section, no covered employee shall 

report for duty or remain on duty 

requiring the performance of safetysensitive functions while the employee 

is under the influence of, or impaired 

by, alcohol, as shown by the behavioral, 

speech, or performance indicators of 

alcohol misuse, nor shall an employer 

permit the covered employee to perform 

or continue to perform safety-sensitive 

functions until: 

(A) An alcohol test is administered 

and the employee’s alcohol 

concentration measures less than 0.02; 

or 

(B) The start of the employee’s next 

regularly scheduled duty period, but not 

less than 8 hours following the 

determination made under paragraph 

(d)(2) of this section that there is 

reasonable suspicion that the employee 

has violated the alcohol misuse 

provisions in §§ 120.19 or 120.37. 

(iii) No employer shall take any action 

under this subpart against a covered 

employee based solely on the 

employee’s behavior and appearance in 

the absence of an alcohol test. This does 

not prohibit an employer with authority 

independent of this subpart from taking 

any action otherwise consistent with 

law. 

(e) Return-to-duty alcohol testing. 

Each employer shall ensure that before 

a covered employee returns to duty 

requiring the performance of a safetysensitive function after engaging in 

conduct prohibited in §§ 120.19 or 

120.37 the employee shall undergo a 

return-to-duty alcohol test with a result 

indicating an alcohol concentration of 

less than 0.02. The test cannot occur 

until after the SAP has determined that 

the employee has successfully complied 

with the prescribed education and/or 

treatment. 

(f) Follow-up alcohol testing. (1) Each 

employer shall ensure that the employee 

who engages in conduct prohibited by 

§§ 120.19 or 120.37, is subject to 

unannounced follow-up alcohol testing 

as directed by a SAP. 

(2) The number and frequency of such 

testing shall be determined by the 

employer’s SAP, but must consist of at 

least six tests in the first 12 months 

following the employee’s return to duty. 

(3) The employer must direct the 

employee to undergo testing for drugs in 

accordance with subpart E of this part, 

in addition to alcohol, if the SAP 

determines that drug testing is necessary 

for the particular employee. Any such 

drug testing shall be conducted in 

accordance with the provisions of 49 

CFR part 40. 

(4) Follow-up testing shall not exceed 

60 months after the date the individual 

begins to perform, or returns to the 

performance of, a safety-sensitive 

function. The SAP may terminate the 

requirement for follow-up testing at any 

time after the first six tests have been 

conducted, if the SAP determines that 

such testing is no longer necessary. 

(5) A covered employee shall be 

tested for alcohol under this section 

only while the employee is performing 

safety-sensitive functions, just before 

the employee is to perform safetysensitive functions, or just after the 

employee has ceased performing such 

functions. 

(g) Retesting of covered employees 

with an alcohol concentration of 0.02 or 

greater but less than 0.04. Each 

employer shall retest a covered 

employee to ensure compliance with the 

provisions of § 120.221(f) if the 

employer chooses to permit the 

employee to perform a safety-sensitive 

function within 8 hours following the 

administration of an alcohol test 

indicating an alcohol concentration of 

0.02 or greater but less than 0.04. 

§ 120.219 Handling of test results, record 

retention, and confidentiality. 

(a) Retention of records. (1) General 

requirement. In addition to the records 

required to be maintained under 49 CFR 

part 40, employers must maintain 

records required by this subpart in a 

secure location with controlled access. 

(2) Period of retention. 

(i) Five years. 

(A) Copies of any annual reports 

submitted to the FAA under this subpart 

for a minimum of 5 years. 

(B) Records of notifications to the 

Federal Air Surgeon of refusals to 

submit to testing and violations of the 

alcohol misuse prohibitions in this 

chapter by covered employees who hold 

medical certificates issued under part 67 

of this chapter. 

(C) Documents presented by a covered 

employee to dispute the result of an 

alcohol test administered under this 

subpart. 

(D) Records related to other violations 

of §§ 120.19 or 120.37. 

(ii) Two years. Records related to the 

testing process and training required 

under this subpart. 

(A) Documents related to the random 

selection process. 

(B) Documents generated in 

connection with decisions to administer 

reasonable suspicion alcohol tests. 

(C) Documents generated in 

connection with decisions on postaccident tests. 

(D) Documents verifying existence of 

a medical explanation of the inability of 

a covered employee to provide adequate 

breath for testing. 

(E) Materials on alcohol misuse 

awareness, including a copy of the 

employer’s policy on alcohol misuse. 

(F) Documentation of compliance 

with the requirements of § 120.223(a). 


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(G) Documentation of training 

provided to supervisors for the purpose 

of qualifying the supervisors to make a 

determination concerning the need for 

alcohol testing based on reasonable 

suspicion. 

(H) Certification that any training 

conducted under this subpart complies 

with the requirements for such training. 

(b) Annual reports. (1) Annual reports 

of alcohol testing program results must 

be submitted to the FAA by March 15 

of the succeeding calendar year for the 

prior calendar year (January 1 through 

December 31) in accordance with the 

provisions of paragraphs (b)(1)(i) 

through (iii) of this section. 

(i) Each part 121 certificate holder 

shall submit an annual report each year. 

(ii) Each entity conducting an alcohol 

testing program under this part, other 

than a part 121 certificate holder, that 

has 50 or more employees performing a 

safety-sensitive function on January 1 of 

any calendar year shall submit an 

annual report to the FAA for that 

calendar year. 

(iii) The Administrator reserves the 

right to require that aviation employers 

not otherwise required to submit annual 

reports prepare and submit such reports 

to the FAA. Employers that will be 

required to submit annual reports under 

this provision will be notified in writing 

by the FAA. 

(2) As an employer, you must use the 

Management Information System (MIS) 

form and instructions as required by 49 

CFR part 40 (at 49 CFR 40.26 and 

appendix H to 49 CFR part 40). You may 

also use the electronic version of the 

MIS form provided by the DOT. The 

Administrator may designate means 

(e.g., electronic program transmitted via 

the Internet) other than hard-copy, for 

MIS form submission. For information 

on where to submit MIS forms and for 

the electronic version of the form, see: 

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. 

§ 120.221 Consequences for employees 

engaging in alcohol-related conduct. 

(a) Removal from safety-sensitive 

function. (1) Except as provided in 49 

CFR part 40, no covered employee shall 

perform safety-sensitive functions if the 

employee has engaged in conduct 

prohibited by §§ 120.19 or 120.37, or an 

alcohol misuse rule of another DOT 

agency. 

(2) No employer shall permit any 

covered employee to perform safetysensitive functions if the employer has 

determined that the employee has 

violated this section. 

(b) Permanent disqualification from 

service. An employee who violates 

§§ 120.19 or 120.37, or who engages in 

alcohol use that violates another alcohol 

misuse provision of §§ 120.19 or 120.37 

and who had previously engaged in 

alcohol use that violated the provisions 

of §§ 120.19 or 120.37 after becoming 

subject to such prohibitions is 

permanently precluded from performing 

for an employer the safety-sensitive 

duties the employee performed before 

such violation. 

(c) Notice to the Federal Air Surgeon. 

(1) An employer who determines that a 

covered employee who holds an airman 

medical certificate issued under part 67 

of this chapter has engaged in alcohol 

use that violated the alcohol misuse 

provisions of §§ 120.19 or 120.37 shall 

notify the Federal Air Surgeon within 2 

working days. 

(2) Each such employer shall forward 

to the Federal Air Surgeon a copy of the 

report of any evaluation performed 

under the provisions of § 120.223(c) 

within 2 working days of the employer’s 

receipt of the report. 

(3) All documents must be sent to the 

Federal Air Surgeon, Federal Aviation 

Administration, Office of Aerospace 

Medicine, Attn: Drug Abatement 

Division (AAM–800), 800 Independence 

Avenue, SW., Washington, DC 20591. 

(4) No covered employee who is 

required to hold an airman medical 

certificate in order to perform a safetysensitive duty may perform that duty 

following a violation of this subpart 

until the covered employee obtains an 

airman medical certificate issued by the 

Federal Air Surgeon dated after the 

alcohol test result or refusal to test date. 

After the covered employee obtains this 

airman medical certificate, the SAP may 

recommend to the employer that the 

covered employee may be returned to a 

safety-sensitive position. The receipt of 

an airman medical certificate does not 

alter any obligations otherwise required 

by 49 CFR part 40 or this subpart. 

(5) Once the Federal Air Surgeon has 

recommended under paragraph (c)(4) of 

this section that the employee be 

permitted to perform safety-sensitive 

duties, the employer cannot permit the 

employee to perform those safetysensitive duties until the employer has 

ensured that the employee meets the 

return to duty requirements in 

accordance with 49 CFR part 40. 

(d) Notice of refusals. Each covered 

employer must notify the FAA within 2 

working days of any employee who 

holds a certificate issued under part 61, 

part 63, or part 65 of this chapter who 

has refused to submit to an alcohol test 

required under this subpart. Notification 

must be sent to: Federal Aviation 

Administration, Office of Aerospace 

Medicine, Drug Abatement Division 

(AAM–800), 800 Independence Avenue, 

SW., Washington, DC 20591, or by fax 

to (202) 267–5200. 

(e) Required evaluation and alcohol 

testing. No covered employee who has 

engaged in conduct prohibited by 

§§ 120.19 or 120.37 shall perform safetysensitive functions unless the employee 

has met the requirements of 49 CFR part 

40. No employer shall permit a covered 

employee who has engaged in such 

conduct to perform safety-sensitive 

functions unless the employee has met 

the requirements of 49 CFR part 40. 

(f) Other alcohol-related conduct. (1) 

No covered employee tested under this 

subpart who is found to have an alcohol 

concentration of 0.02 or greater but less 

than 0.04 shall perform or continue to 

perform safety-sensitive functions for an 

employer, nor shall an employer permit 

the employee to perform or continue to 

perform safety-sensitive functions, until: 

(i) The employee’s alcohol 

concentration measures less than 0.02; 

or 

(ii) The start of the employee’s next 

regularly scheduled duty period, but not 

less than 8 hours following 

administration of the test. 

(2) Except as provided in paragraph 

(f)(1) of this section, no employer shall 

take any action under this rule against 

an employee based solely on test results 

showing an alcohol concentration less 

than 0.04. This does not prohibit an 


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employer with authority independent of 

this rule from taking any action 

otherwise consistent with law. 

§ 120.223 Alcohol misuse information, 

training, and substance abuse 

professionals. 

(a) Employer obligation to promulgate 

a policy on the misuse of alcohol. (1) 

General requirements. Each employer 

shall provide educational materials that 

explain these alcohol testing 

requirements and the employer’s 

policies and procedures with respect to 

meeting those requirements. 

(i) The employer shall ensure that a 

copy of these materials is distributed to 

each covered employee prior to the start 

of alcohol testing under the employer’s 

FAA-mandated alcohol testing program 

and to each individual subsequently 

hired for or transferred to a covered 

position. 

(ii) Each employer shall provide 

written notice to representatives of 

employee organizations of the 

availability of this information. 

(2) Required content. The materials to 

be made available to employees shall 

include detailed discussion of at least 

the following: 

(i) The identity of the individual 

designated by the employer to answer 

employee questions about the materials. 

(ii) The categories of employees who 

are subject to the provisions of these 

alcohol testing requirements. 

(iii) Sufficient information about the 

safety-sensitive functions performed by 

those employees to make clear what 

period of the work day the covered 

employee is required to be in 

compliance with these alcohol testing 

requirements. 

(iv) Specific information concerning 

employee conduct that is prohibited by 

this chapter. 

(v) The circumstances under which a 

covered employee will be tested for 

alcohol under this subpart. 

(vi) The procedures that will be used 

to test for the presence of alcohol, 

protect the employee and the integrity 

of the breath testing process, safeguard 

the validity of the test results, and 

ensure that those results are attributed 

to the correct employee. 

(vii) The requirement that a covered 

employee submit to alcohol tests 

administered in accordance with this 

subpart. 

(viii) An explanation of what 

constitutes a refusal to submit to an 

alcohol test and the attendant 

consequences. 

(ix) The consequences for covered 

employees found to have violated the 

prohibitions in this chapter, including 

the requirement that the employee be 

removed immediately from performing 

safety-sensitive functions, and the 

process in 49 CFR part 40, subpart O. 

(x) The consequences for covered 

employees found to have an alcohol 

concentration of 0.02 or greater but less 

than 0.04. 

(xi) Information concerning the effects 

of alcohol misuse on an individual’s 

health, work, and personal life; signs 

and symptoms of an alcohol problem; 

available methods of evaluating and 

resolving problems associated with the 

misuse of alcohol; and intervening 

when an alcohol problem is suspected, 

including confrontation, referral to any 

available employee assistance program, 

and/or referral to management. 

(xii) Optional provisions. The 

materials supplied to covered 

employees may also include 

information on additional employer 

policies with respect to the use or 

possession of alcohol, including any 

consequences for an employee found to 

have a specified alcohol level, that are 

based on the employer’s authority 

independent of this subpart. Any such 

additional policies or consequences 

must be clearly and obviously described 

as being based on independent 

authority. 

(b) Training for supervisors. Each 

employer shall ensure that persons 

designated to determine whether 

reasonable suspicion exists to require a 

covered employee to undergo alcohol 

testing under § 120.217(d) of this 

subpart receive at least 60 minutes of 

training on the physical, behavioral, 

speech, and performance indicators of 

probable alcohol misuse. 

(c) Substance abuse professional 

(SAP) duties. The SAP must perform the 

functions set forth in 49 CFR part 40, 

subpart O, and this subpart. 

§ 120.225 How to implement an alcohol 

testing program. 

(a) Each company must meet the 

requirements of this subpart. Use the 

following chart to determine whether 

your company must obtain an Antidrug 

and Alcohol Misuse Prevention Program 

Operations Specification or whether you 

must register with the FAA: 

If you are . . . You must . . . 

(1) A part 119 certificate holder with authority to 

operate under parts 121 and/or 135.

Obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification by contacting your FAA Principal Operations Inspector. 

(2) An operator as defined in § 91.147 of this 

chapter.

Register with the FAA, by contacting the Flight Standards District Office nearest to your principal place of business. 

(3) An air traffic control facility not operated by 

the FAA or by or under contract to the U.S. 

Military.

Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM–800), 

800 Independence Avenue, SW., Washington, DC 20591. 

(4) A part 145 certificate holder who has your 

own alcohol testing program.

Obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification by contacting your 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 own alcohol testing program.Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM–800), 

800 Independence Avenue, SW., Washington, DC 20591 if you opt to conduct your own alcohol testing program. 

(b) Use the following chart for 

implementing an alcohol testing 

program if you are applying for a part 

119 certificate with authority to operate 

under parts 121 and/or 135 of this 

chapter, if you intend to begin 

operations as defined in § 91.147 of this 

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: 


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Federal Register / Vol. 74, No. 92 / Thursday, May 14, 2009 / Rules and Regulations 22667 

If you . . . You must . . . 

(1) Apply for a part 119 certificate with authority 

to operate under parts 121 and/or 135.

(i) Have an Antidrug and Alcohol Misuse Prevention Program Operations Specification, 

(ii) Implement an FAA alcohol testing program no later than the date you start operations, and 

(iii) Meet the requirements of this subpart. 

(2) Intend to begin operations as defined in 

§ 91.147 of this chapter.

(i) Register with the FAA by contacting the Flight Standards District Office nearest your principal place of business prior to starting operations, 

(ii) Implement an FAA alcohol testing program no later than the date you start operations, and 

(iii) Meet the requirements of this subpart. 

(3) Intend to begin air traffic control operations 

(at an air traffic control facility not operated 

by the FAA or by or under contract to the 

U.S. military).

(i) Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM–800), 

800 Independence Avenue, SW., Washington, DC 20591 prior to starting operations, 

(ii) Implement an FAA alcohol testing program no later than the date you start operations, and 

(iii) Meet the requirements of this subpart. 

(c) If you are an individual or a 

company that intends to provide safetysensitive services by contract to a part 

119 certificate holder with authority to 

operate under parts 121 and/or 135 of 

this chapter or an operator as defined in 

§ 91.147 of this chapter, use the 

following chart to determine what you 

must do if you opt to have your own 

alcohol testing program. 

If you . . . And you opt to conduct your own Alcohol Testing Program, you must . . . 

(1) Are a part 145 certificate holder ................... (i) Have an Antidrug and Alcohol Misuse Prevention Program Operations Specifications or register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM–800), 800 

Independence Avenue, SW., Washington, DC 20591, 

(ii) Implement an FAA alcohol testing program no later than the date you start performing safety-sensitive functions for a part 119 certificate holder with the authority to operate under 

parts 121 and/or 135, or operator as defined in § 91.147 of this chapter, and 

(iii) Meet the requirements of this subpart as if you were an employer. 

(2) Are a contractor ............................................ (i) Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM–800), 

800 Independence Avenue, SW., Washington, DC 20591, 

(ii) Implement an FAA alcohol testing program no later than the date you start performing safety-sensitive functions for a part 119 certificate holder with authority to operate under parts 

121 and/or 135, or operator as defined in § 91.147 of this chapter, and 

(iii) Meet the requirements of this subpart as if you were an employer. 

(d)(1) To obtain an Antidrug and 

Alcohol Misuse Prevention Program 

Operations Specification, you must 

contact your FAA Principal Operations 

Inspector or Principal Maintenance 

Inspector. Provide him/her with the 

following information: 

(i) Company name. 

(ii) Certificate number. 

(iii) Telephone number. 

(iv) Address where your drug and 

alcohol testing program records are 

kept. 

(v) Whether you have 50 or more 

covered employees, or 49 or fewer 

covered employees. (Part 119 certificate 

holders with authority to operate only 

under part 121 of this chapter are not 

required to provide this information.) 

(2) You must certify on your Antidrug 

and Alcohol Misuse Prevention Program 

Operations Specification, issued by your 

FAA Principal Operations Inspector or 

Principal Maintenance Inspector, that 

you will comply with this part and 49 

CFR part 40. 

(3) You are required to obtain only 

one Antidrug and Alcohol Misuse 

Prevention Program Operations 

Specification to satisfy this requirement 

under this part. 

(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 § 91.147 of this chapter, or 

an air traffic control facility not 

operated by the FAA or by or under 

contract to the U.S. Military. 

(2) Send this information in the form 

and manner prescribed by the 

Administrator, in duplicate to: The 

Federal Aviation Administration, Office 

of Aerospace Medicine, Drug Abatement 

Division (AAM–800), 800 Independence 

Avenue, SW., Washington, DC 20591. 

(3) Update the registration 

information as changes occur. Send the 

updates in duplicate to the address 

specified in paragraph (e)(2) of this 

section. 

(4) This registration will satisfy the 

registration requirements for both your 

drug testing program under subpart E of 

this part and your alcohol testing 

program under this subpart. 

§ 120.227 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 


jlentini on PROD1PC65 with RULES
22668 Federal Register / Vol. 74, No. 92 / Thursday, May 14, 2009 / Rules and Regulations 

the United States shall be removed from 

the random testing pool upon the 

inception of such assignment. 

(2) Each covered employee who is 

removed from the random testing pool 

under this paragraph shall be returned 

to the random testing pool when the 

employee resumes the performance of 

safety-sensitive functions wholly or 

partially within the territory of the 

United States. 

(b) The provisions of this subpart 

shall not apply to any person who 

performs a safety-sensitive function by 

contract for an employer outside the 

territory of the United States. 

PART 121—OPERATING 

REQUIREMENTS: DOMESTIC, FLAG, 

AND SUPPLEMENTAL OPERATIONS 

■ 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. 

§ 121.429 [Removed and Reserved] 

■ 15. Section 121.429 is removed and 

reserved. 

§ 121.455 [Removed and Reserved] 

■ 16. Section 121.455 is removed and 

reserved. 

§ 121.457 [Removed and Reserved] 

■ 17. Section 121.457 is removed and 

reserved. 

§ 121.458 [Removed and Reserved] 

■ 18. Section 121.458 is removed and 

reserved. 

§ 121.459 [Removed and Reserved] 

■ 19. Section 121.459 is removed and 

reserved. 

Appendix I to Part 121 [Removed and 

Reserved] 

■ 20. Appendix I is removed and 

reserved. 

Appendix J to Part 121 [Removed and 

Reserved] 

■ 21. Appendix J is removed and 

reserved. 

PART 135—OPERATING 

REQUIREMENTS: COMMUTER AND 

ON DEMAND OPERATIONS AND 

RULES GOVERNING PERSONS ON 

BOARD SUCH AIRCRAFT 

■ 22. The authority citation for part 135 

continues to read as follows: 

Authority: 49 U.S.C. 106(g), 41706, 40113, 

44701–44702, 44705, 44709, 44711–44713, 

44715–44717, 44722, 45101–45105. 

■ 23. Section 135.1(a)(5) is revised to 

read as follows: 

§ 135.1 Applicability 

(a) * * * 

(5) Nonstop Commercial Air Tour 

flights conducted for compensation or 

hire in accordance with § 119.1(e)(2) of 

this chapter that begin and end at the 

same airport and are conducted within 

a 25-statute-mile radius of that airport; 

provided further that these operations 

must comply only with the drug and 

alcohol testing requirements in 

§§ 120.31, 120.33, 120.35, 120.37, and 

135.39 of this chapter; and with the 

provisions of part 136, subpart A, and 

§ 91.147 of this chapter by September 

11, 2007. 

* * * * * 

§ 135.249 [Removed and Reserved] 

■ 24. Section 135.249 is removed and 

reserved. 

§ 135.251 [Removed and Reserved] 

■ 25. Section 135.251 is removed and 

reserved. 

§ 135.253 [Removed and Reserved] 

■ 26. Section 135.253 is removed and 

reserved. 

§ 135.255 [Removed and Reserved] 

■ 27. Section 135.255 is removed and 

reserved. 

§ 135.353 [Removed and Reserved] 

■ 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 

DEPARTMENT OF TRANSPORTATION 

14 CFR Part 97 

[Docket No. 30666; Amdt. No. 3321] 

Standard Instrument Approach 

Procedures, and Takeoff Minimums 

and Obstacle Departure Procedures; 

Miscellaneous Amendments 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final rule. 

SUMMARY: This rule establishes, amends, 

suspends, or revokes Standard 

Instrument Approach Procedures 

(SIAPs) and associated Takeoff 

Minimums and Obstacle Departure 

Procedures for operations at certain 

airports. These regulatory actions are 

needed because of the adoption of new 

or revised criteria, or because of changes 

occurring in the National Airspace 

System, such as the commissioning of 

new navigational facilities, adding new 

obstacles, or changing air traffic 

requirements. These changes are 

designed to provide safe and efficient 

use of the navigable airspace and to 

promote safe flight operations under 

instrument flight rules at the affected 

airports. 

DATES: This rule is effective May 14, 

2009. The compliance date for each 

SIAP, associated Takeoff Minimums, 

and ODP is specified in the amendatory 

provisions. 

The incorporation by reference of 

certain publications listed in the 

regulations is approved by the Director 

of the Federal Register as of May 14, 

2009. 

ADDRESSES: Availability of matter 

incorporated by reference in the 

amendment is as follows: 

For Examination— 

1. FAA Rules Docket, FAA 

Headquarters Building, 800 

Independence Avenue, SW., 

Washington, DC 20591; 

2. The FAA Regional Office of the 

region in which the affected airport is 

located; 

3. The National Flight Procedures 

Office, 6500 South MacArthur Blvd., 

Oklahoma City, OK 73169 or, 

4. The National Archives and Records 

Administration (NARA). For 

information on the availability of this 

material at NARA, call 202–741–6030, 

or go to: 

http://www.archives.gov/ 

federal_register/ 

code_of_federal_regulations/ 

ibr_locations.html. 

Availability—All SIAPs are available 

online free of charge. Visit nfdc.faa.gov 

to register. Additionally, individual 

SIAP and Takeoff Minimums and ODP 

copies may be obtained from: 

1. FAA Public Inquiry Center (APA– 

200), FAA Headquarters Building, 800 

Independence Avenue, SW., 

Washington, DC 20591; or 

2. The FAA Regional Office of the 

region in which the affected airport is 

located. 

FOR FURTHER INFORMATION CONTACT: 

Harry J. Hodges, Flight Procedure 

Standards Branch (AFS–420) Flight 

Technologies and Programs Division, 

Flight Standards Service, Federal 

Aviation Administration, Mike 

Monroney Aeronautical Center, 6500 

South MacArthur Blvd., Oklahoma City, 

OK 73169 (Mail Address: P.O. Box 

25082 Oklahoma City, OK 73125) 

telephone: (405) 954–4164. 


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