Antidrug Program for Personnel Engaged in Specified Aviation Activities; Final Rule DEPARTMENT OF TRANSPORTATION

SUMMARY: The Omnibus Transportation Employee Testing Act of 1991 (the

Act), amended the Federal Aviation Act of 1958 to provide a statutory

mandate for drug testing of air carrier employees. The Act also

prescribed certain consequences for prohibited drug use and mandated

the use of split specimen testing. This rule amends the antidrug rule

for conformity to the requirements of the Act.

In addition, this rule incorporates other changes to the antidrug

rule. These changes clarify the requirements of the rule and also

address concerns that have been raised since the rule was published.

Finally, this rule includes substantive changes to address

provisions of the rule that are unclear, do not comport with the

changes in the final DOT drug testing procedures, or do not adequately

address required steps in the implementation process.

EFFECTIVE DATE: This final rule is effective on September 19, 1994,

except the amendment to part 121, appendix I, VI.C. which is effective

August 15, 1994.

FOR FURTHER INFORMATION CONTACT: Ms. Julie B. Murdoch, Office of

Aviation Medicine, Drug Abatement Division (AAM-800), Federal Aviation

Administration, 400 7th Street SW., Washington, DC 20590; telephone

(202) 366-6710.

SUPPLEMENTARY INFORMATION:

Availability of Final Rule

Any person may obtain a copy of this final rule by submitting a

request to the Federal Aviation Administration, Office of Public

Affairs, Attn: Public Inquiry Center (APA-230), 800 Independence

Avenue, SW., Washington, DC 20591, or by calling (202) 267-3484.

Requests must include the amendment number identified in this final

rule.

Persons interested in being placed on a mailing list for future

rulemaking actions should request a copy of Advisory Circular 11-2A,

Notice of Proposed Rulemaking Distribution System, which describes the

application procedures.

Background

On November 14, 1988, the FAA issued an antidrug rule which

required specified aviation employers and operators to initiate

antidrug programs for personnel performing safety-sensitive functions.

On October 28, 1991, the Omnibus Transportation Employee Testing

Act of 1991 (the Act) was enacted. Among other things, the Act provided

a statutory mandate for drug testing in the aviation industry and

required specified consequences for positive drug tests. A notice of

proposed rulemaking (NPRM), published on February 15, 1994, proposed

amendments to certain provisions of the FAA's antidrug rule in

accordance with the Act. The NPRM also proposed certain other changes

to the antidrug rule that would clarify employer and Medical Review

Officer responsibilities and addressed other issues that have been

identified since the promulgation of the rule. This rule incorporates

the requirements of the statutory mandate, as well as the clarifying

amendments.

Seven comments were received in the docket in response to the NPRM.

These comments were taken into consideration during the development of

this final rule.

Reason for Expedited Effective Date

A section of this rule concerning split specimen testing is being

made effective in less than the 30 days from publication usually

required by law. With an effective date of August 15, 1994, for this

section the FAA can ensure that this rule is consistent with the DOT

final rule which was published on February 15, 1994 (59 FR 7354). The

DOT rule implements split specimen collection testing required by the

Omnibus Transportation Employee Testing Act of 1991, as of August 15,

1994, for four modal administrations under the DOT. The DOT rule

provided affected employers 6 months to begin implementing split

specimen testing. Because employers have been given prior notification

of the requirement for split specimen testing, employers subject to

this rule will not be unduly burdened by an effective date of less than

30 days. The FAA has therefore determined that good cause exists under

the provisions of 5 U.S.C. 533(d)(3) to warrant an expedited effective

date.

Discussion of Comments and Final Rule

This rulemaking action encompasses a variety of changes to the

FAA's antidrug regulation, most of which affect the operational

provisions of the antidrug rule found in 14 CFR part 121, appendix I.

Because a variety of changes, both substantive and minor technical

revisions, were made to appendix I, the entire revised appendix has

been republished in this final rule. Each of the significant changes

and any related comments are discussed in detail below.

Random Testing

This final rule does not change the random drug testing

requirements. The FAA notes, however, that a separate NPRM was jointly

issued by the Office of the Secretary of Transportation and all DOT

agencies with antidrug rules on February 15, 1994 (59 FR 7614). This

NPRM proposed parallel changes to each agency's rule under which the

random drug testing rate would be established based on the rate of

random positive drug tests in the particular industry. Because of the

common aspects of the random testing issues, the FAA will make any such

changes as part of a joint final rule to be issued in the near future.

Amendments Required by the Act

Prohibition on Service; Rehabilitation and Evaluation

The Omnibus Transportation Employee Testing Act section entitled

``Prohibition on service'' (found at new FAAct section 614(b)) provides

that no person who is determined to have engaged in illegal use of

drugs may perform a safety-sensitive function after such determination.

In accordance with this section, the FAA proposed that sections of the

FAA's regulations that address the use of prohibited drugs (see, e.g.,

14 CFR 65.46(c), (d)) would be revised slightly to reflect the fact

that entities other than certificate holders (i.e., contractor

companies) can require drug tests under the antidrug rule if they have

an FAA-approved antidrug program. The changes were supported by

commenters and are included in the final rule.

Section 614(b)(2) of the FAAct, ``Effect of Rehabilitation,''

states that no covered employee may perform a safety-sensitive function

after engaging in prohibited conduct unless he or she has completed a

rehabilitation program under the provisions of section 614(c) of the

FAAct. Section 614(c)(1) requires the Administrator to prescribe

regulations that at a minimum provide for the identification and

opportunity for treatment of employees in need of assistance in

resolving problems with the use of controlled substances. Further, the

section states that the Administrator shall determine the circumstances

under which such employees shall be required to participate in such a

program. This language recognizes that rehabilitation may not be

appropriate or warranted in all cases of prohibited conduct.

The legislative requirement of section 614(b)(2) is implemented in

the revisions to paragraph A, section VII, of appendix I. The

legislative history of the Act reflected the fact that the FAA did not

prescribe regulations with respect to specific types of rehabilitation

in its antidrug rule. However, because the Act requires the FAA to

prescribe regulations under which persons in need of assistance would

be identified, this final rule modifies the Medical Review Officer

(MRO) duties to include such identification. Some commenters noted that

a MRO may not be qualified as a substance abuse professional (SAP) and

should therefore be required to refer the individual to a qualified SAP

for the evaluation. It was the FAA's intent that only MROs who also

meet the qualifications of a SAP (as contained in the definition of a

SAP) would be authorized to perform the initial evaluation of

individuals who have a verified positive drug test result or refuse to

submit to a required test. The final rule has been changed to clarify

this requirement. It also incorporates a provision parallel to one in

the alcohol misuse prevention program final rule that limits the

providers or facilities to which SAPs who perform an initial evaluation

may refer an employee determined to be in need of assistance. This

limitation also applies to MROs who serve as SAPs.

The NPRM proposed, and this final rule provides, that each covered

employee who had a verified positive drug test result or who refused to

submit to testing would be advised of all relevant resources available

to the employee. Further, each such employee would be evaluated by a

SAP (who could be the MRO) who would determine whether and what

assistance the employee needed in resolving problems associated with

prohibited drug use. Some commenters representing labor organizations

stated that the FAA should include requirements that employers must

provide or pay for any required treatment and that employees should be

prohibited from terminating employees who are undergoing treatment. The

FAA reaffirms its position that these issues are most appropriately

matters for employer/employee negotiation.

New section 614(b)(3) of the FAAct, ``Performance of prior duties

prohibited,'' provides sanctions for employees who engage in prohibited

use of drugs. It provides that, under certain circumstances discussed

below, an individual shall not be permitted to perform the duties

related to air transportation that he or she performed prior to the

date he or she engaged in the prohibited drug use. The legislation does

not require that the individual's employment be terminated, nor that he

or she be reassigned to perform non-safety-sensitive functions.

However, it is an absolute bar to the performance of the same duties

the employee performed before the violation.

The final rule implements the provisions in the Act in two ways.

Appendix I has been revised by adding paragraph F to section VI to

preclude any person from performing the safety-sensitive function that

the individual was performing if that person had two verified positive

drug test results or if the individual used a prohibited drug while

performing such a safety-sensitive function. A definition of

``performing'' paralleling the one in the alcohol misuse prevention

program rule has been added. In order to effectively administer this

provision, the final rule provides that this prohibition is effective

for drug tests and on-duty drug use occurring after the effective date

of the final rule. (The NPRM proposed to amend the regulatory sections

to implement this prohibition. However, for clarity and consistency

with the alcohol misuse prevention program we are adding this provision

to appendix I.)

The bar is limited to the narrow prohibition in the Act and will

not affect the performance of other duties. While the FAA recognizes

that a narrow bar could lead to anomalous results (for example, a

person might be barred from performing screening duties but could serve

as a pilot), a bar that is limited to the statutory requirements is

more likely to be consistent with the requirements of the Americans

with Disabilities Act or other legal constraints. The FAA expects that

employers will exercise responsible judgment in determining whether

employees not expressly barred from service should be permitted to

perform other safety-sensitive duties.

The bar on two-time violators will apply both to persons who have

gone through rehabilitation and to those who, after evaluation, were

determined not to need treatment. Otherwise, an employee who was found

to need treatment and had an instance of recidivism would be subject to

the bar, but an employee who did not need assistance but simply chose

to use drugs again would not be. This provision is established under

the FAA's general statutory authority to prescribe regulations

affecting aviation safety.

Commenters representing labor organizations objected to the

permanent bar in principle, but recognized the FAA's statutory

requirement to impose such a bar. Commenters representing employers

objected to the FAA's implementation of the permanent bar in which the

burden of ensuring that permanently barred individuals do not perform

the relevant safety-sensitive duties is placed on employers. These

commenters assert that the FAA should maintain a name-specific ``black

list'' that employers could check to determine an applicant's status.

The FAA has not adopted this recommendation and believes that it would

be inappropriate to do so. Aside from the obvious privacy and

logistical issues associated with the creation of such a data base, it

would not serve the purpose asserted by the commenters, which appears

to be to relieve the employers of the necessity of obtaining

information regarding applicants' drug testing history. However, the

permanent bar is not the only measure precluding service in a safety-

sensitive function. In addition, if an individual has a verified

positive drug test result or has refused to submit to a drug test, the

employer cannot use the individual to perform any safety-sensitive

function unless and until the appropriate MRO or SAP evaluation and

return to duty requirements have been met. (A similar prohibition

applies under the alcohol misuse prevention program, 14 CFR part 121,

appendix J). Information regarding such unresolved violations can be

obtained only from the employee's records. In summary, the FAA does not

view the need to ensure that an applicant is not subject to the

permanent bar as materially different from the other requirements in

this employer-based, employer-implemented program.

The FAA has addressed one concern raised by commenters regarding

the availability of records from previous employers. The

confidentiality provisions have been revised to clarify that employers

are required to release employee antidrug program records upon written

consent of the employee. This revision precludes prior employers from

refusing to release records and thereby frustrating the intent of this

regulation. With respect to record retention, the FAA notes that the

retention periods provided in this rule are minimums and employers may

choose to retain any records for a longer period of time. Employers

should consider longer retention of information regarding verified

positive drug test results, refusals to submit to testing, evaluation,

and rehabilitation, if for no other reason than to ensure that an

individual previously terminated for violating the rule is not rehired

for and impermissibly returned to the performance of safety-sensitive

functions.

Commenters also expressed concern that employees be provided with

adequate notice of the implications of having a verified positive drug

test result or using drugs while performing a safety-sensitive

function. The FAA agrees that employees should be advised of the

consequences of such actions, and of the consequences of refusing to

submit to a required test (which, although it does not implicate the

permanent bar, does necessitate removal from safety-sensitive functions

and possible reporting to the FAA). The FAA has therefore revised the

employee assistance program provisions of appendix I to include a

requirement that the employer policy provide information on the

consequences under the antidrug rule of illegal use of drugs, verified

positive drug test results, and refusals to submit to testing. It

should be noted that an employer may advise employees of any

consequences imposed under the employer's independent authority (e.g.,

termination); however, the employer could not purport or imply that the

FAA's antidrug rule required such actions.

The permanent bar following a refusal to undertake or failure to

complete rehabilitation is further implemented by retaining the current

requirement that prior to returning to duty performing safety-sensitive

functions following a verified positive drug test result on an FAA-

mandated drug test or refusal to submit to such a drug test, the

employee must be evaluated by the MRO on the specific issue of

compliance with any previously-established treatment program. This rule

retains the provisions regarding MRO recommendations for return to

duty, with the modification that, based on the requirements of the Act,

the MRO cannot recommend return to duty if an individual has failed to

comply with a specified rehabilitation program. The FAA has chosen,

however, not to impose a definite time period during which the employee

must agree to undertake or complete the prescribed rehabilitation. This

allows for the denial phase that most people go through when first

confronted with evidence of a drug problem.

Split Specimen Testing

Split specimen testing, which is expressly required under the Act,

is a procedure under which an original urine specimen is divided into

two containers, each of which is sealed, labeled, and maintained

separately. If the primary specimen tests positive, the split or

secondary specimen can be tested to ensure that the confirmed positive

was not caused by error or tampering. In accordance with the

requirements of the Act, DOT has revised its procedural rule to require

split specimen testing for all drug testing performed under the

auspices of the FAA antidrug rule (and those of the Federal Highway

Administration, the Federal Railroad Administration, and the Federal

Transit Administration). Consistent with the provisions of the DOT

rule, this final rule provides that split specimen testing is in lieu

of the right to request a retest of the original specimen.

A number of commenters objected to the split specimen testing

requirement as unnecessary and unduly burdensome. These commenters

stated that split specimen provisions should not be included in the

final rule. The FAA is constrained by the requirements of the Act and

must provide for split specimen testing. All aviation entities with

FAA-approved antidrug programs must therefore ensure that they have

split specimen testing provisions in place by August 15, 1994,

including providing appropriate amendments to their antidrug program

plans to the FAA.

Both the Act and the DOT's revised rule provide that an employee is

entitled to split specimen testing if the employee requests such

testing within 3 days of receiving notice of the positive drug test

result, and this final rule incorporates an analogous provision. The

NPRM proposed that the request must be in writing. Commenters noted

that the requirement for a written request conflicts with the limited

time available during which to make the request to have a split

specimen tested. The FAA has deleted the proposed requirement that an

employee request the split specimen test in writing. The final rule

also revises the provision regarding MRO verification of the primary

specimen. The NPRM proposed that the MRO ``may'' proceed with

verification pending receipt of the split specimen test result.

Although this language was permissive, it was not the intent of the FAA

that verification could be delayed solely based on an employee's

request for a split specimen test. Rather, the provision was intended

to recognize that factors other than the request for the split specimen

analysis could affect the verification process. The final rule makes

the intent of the FAA explicit. Finally, the rule provides that no

employer or agency action is stayed during the request period or while

waiting for a split specimen test result.

Clarifying Amendments

Rule Language

The NPRM included a notice that in the final rule the FAA would

amend the antidrug rule to change the terms ``passing'' and ``failing''

a drug test. All of the DOT agencies that require drug testing,

including the FAA, have received reports of some confusion in their

respective industries regarding the use of the terms passing and

failing a drug test and how those terms relate to different drug test

results (i.e., confirmed or verified positive or negative test,

cancelled tests, etc.). The final rule changes these terms wherever

they are used throughout the antidrug rule to the more accurate

``verified positive'' or ``verified negative.''

Additionally, the revised appendix I published in this final rule

includes a number of minor editorial changes. For example, throughout

the antidrug rule the phrase ``functions specified in section III of

appendix I'' is used. This final rule replaces that phrase with the

term ``safety-sensitive function,'' which is defined accordingly.

Contract Air Traffic Control Facilities

As was noted in the preamble to the NPRM, when the FAA's final

antidrug rule was published in 1988, air traffic control (ATC)

facilities operated under contract with the FAA were explicitly

excluded from coverage under the rule. It was subsequently determined

that employees of contract ATC facilities would not be included in the

FAA's program for Federal employees and should be subject to the FAA's

rules for the aviation industry. This final rule changes the definition

of covered employers to include such facilities. The FAA's air traffic

control facilities and facilities operated by the military (whether

directly or by contract) are not affected by this change.

Air traffic control facilities, whether they are currently required

to perform testing by contract or not, should submit plans to the FAA

within 90 days after the rule's effective date, as required by

paragraph A.5., Section IX.

Refusal to Submit to Testing

The final antidrug rule included amendments to the airmen

certification sections of the FAA's regulations under which a refusal

to submit to testing could be the basis for a certificate action.

However, the rule did not have an express requirement for employers to

notify the FAA of refusals or a specific mechanism for providing such

notice. The NPRM proposed a reporting requirement that (paragraph E of

section VI of appendix I to part 121) would correct this gap in the

requirements of the rule. However, the proposal did not include a

specific time for notifications. The final rule specifies that

employers must notify the FAA of refusals to submit to required tests

within 5 working days. The final rule also clarifies that sanctions do

not attach to refusals to submit to either pre-employment or return to

duty tests since the redefinition of ``return to duty tests'' makes

such tests essentially voluntary. An individual who refuses to submit

to pre-employment or return to duty testing but then wishes to perform

a safety-sensitive function would have to subsequently agree to take

and have a verified negative drug test result on such a test. The

individual would then be subject to follow-up testing while performing

safety-sensitive functions, because the individual might have refused

based on recent drug use. The individual would not, however, be subject

to certificate action for declining what is essentially a test taken

voluntarily as a precondition to performing safety-sensitive duties.

Employees Covered By the Antidrug Rule

The final rule modifies the specified safety-sensitive duties

slightly to parallel the classes of covered functions in the FAA's new

alcohol misuse prevention program rule (14 CFR part 121, appendix J).

This modification is not intended to significantly change the antidrug

rule's coverage. The most significant changes are the elimination of

flight test and ground instruction duties. The former category is

eliminated because the FAA has determined that as a practical matter,

these duties are essentially subsumed in flight crewmember or flight

instructor duties. Ground instruction duties have been eliminated based

on the FAA's desire to reduce the burden of the antidrug rule on the

industry and the determination that individuals performing such duties

could be removed from the program without jeopardizing public safety.

Additionally, the categories of ``aviation screening duties'' and

``ground security coordinator duties'' have been established to clarify

the FAA's original intent with respect to covered security functions.

Although most commenters supported these changes, one commenter

believed that rather than specifying categories of safety-sensitive

duties, the rule should provide the Administrator with the discretion

to establish these categories without rulemaking. The FAA has not

adopted this recommendation. While flexibility might be desirable, the

FAA believes that it is essential that adequate notice and opportunity

for comment be given to individuals the FAA intends to subject to the

requirements of this rule. Publication of the safety-sensitive

functions as part of the final rule also ensures that affected

employees and employers have actual or constructive knowledge of the

requirements of the rule.

The FAA has previously received a petition for rulemaking on the

issue of the appropriate scope of covered employees under the antidrug

rule. Because the issues raised in the petition have been resolved in

this final rule, the FAA has closed this action. (Docket No. 26620)

Because the covered employee categories are being revised, we are

republishing with this final rule the Drug Testing Management

Information System (MIS) Data Collection Forms, which were published in

the Federal Register on December 23, 1993 (58 FR 68198), and became

effective on January 1, 1994. These forms provide the FAA with

additional data for use in monitoring the antidrug program and reflect

the changes in employees covered by the antidrug rule. There are no

other significant changes to the forms.

Pre-Employment Testing

The NPRM proposed to revise the antidrug rule's pre-employment

testing provision (paragraph A of section V of appendix I) to make the

provision less burdensome. When it was published in 1988, the antidrug

rule required pre-employment testing before an individual could be

hired to perform a function specified in appendix I. As interpreted by

the FAA, testing was required of individuals not currently employed by

the employer, of current employees moving from a non-covered to a

covered safety-sensitive function, and in circumstances where an

employee was removed from the random testing pool for any length of

time or was unavailable for testing for an extended period of time.

Individuals who had a verified positive drug test result or refused to

submit to an FAA-mandated drug test also had to pass a pre-employment

test prior to performing or returning to safety-sensitive duties.

The FAA continues to believe that pre-employment drug testing has

utility for those individuals who have not previously been subject to

the FAA-approved random drug testing program of an employer. However,

we have reassessed the need for pre-employment testing in other

situations, such as when an employee has been on leave of absence or

working outside the territory of the United States. The FAA believes,

and all of the commenters addressing this issue concur, that safety can

be maintained even if the requirement for pre-employment testing in

some circumstances is eliminated. Therefore, the FAA has revised its

antidrug rule to require pre-employment testing of an individual only

prior to the first time the individual performs a safety-sensitive

function for an employer. Such an individual must have a verified

negative drug test result on a pre-employment test prior to performing

a safety-sensitive function, and the employer could not permit the

individual to perform such a function until the employer receives the

verified negative pre-employment drug test result.

Employers would be permitted to require an employee to submit to

pre-employment testing in cases where an employee previously subject to

random testing by that employer has been removed from the random

testing pool for reasons other than a verified positive drug test

result on an FAA-mandated drug test or refusal to submit to such

testing.

Return to Duty and Follow-Up Testing

The 1988 final antidrug rule included the category of ``testing

after return to duty'' (former paragraph F, section V, appendix I).

Under this provision, individuals who had been hired to perform safety-

sensitive functions, or returned to the performance of safety-sensitive

functions after receiving a verified positive drug test result on or

refusing to submit to an FAA-mandated drug test, were subject to

unannounced testing. As noted above, the threshold test required before

returning to duty was characterized as a pre-employment test.

Commenters concurred with the FAA's assessment that the FAA's prior

use of the term ``return to duty'' testing has caused confusion in the

industry. The FAA also wishes to ensure consistency in terminology with

the alcohol misuse prevention program rule. For these reasons, the

antidrug rule has been revised to provide that an individual who had a

verified positive drug test result on a pre-employment test, or refused

a pre-employment test, must take another pre-employment test and obtain

a verified negative drug test result before performing safety-sensitive

duties and would then be subject to follow-up testing. An employee who

had a verified positive drug test result on another type of test or

refused to submit to another type of test (e.g., random) must take a

return to duty test and obtain a verified negative drug test result

before returning to the performance of safety-sensitive duties, and

would then be subject to follow-up testing. Like all FAA-mandated

tests, return to duty and follow-up tests must be performed in

accordance with the requirements of appendix I and the testing

procedures in 49 CFR part 40.

The FAA also proposed two other changes that would parallel the

provisions of the alcohol rule. The first proposed change was the

addition of a mandatory minimum of six follow-up drug tests during an

individual's first 12 months after being hired for or returning to the

performance of safety-sensitive functions after the individual has

refused to submit to or had a verified positive drug test result on an

FAA-mandated test. Commenters generally opposed this proposal,

believing the determination of the appropriate number of follow-up

tests should be a matter for the MRO's discretion. Based on these

comments, the FAA has revised the follow-up testing provision. As

revised, although follow-up testing is required for any person who

refuses to submit to or who has a verified positive drug test result on

an FAA-mandated drug test, a minimum of six tests over 12 months will

be required only for an individual who is determined in an evaluation

conducted under this rule to be in need of assistance in resolving

problems associated with illegal use of drugs. This modification

ensures that those employees most in need of monitoring will be subject

to at least a minimum number of tests over the first year after

returning to duty, the period during which recidivism is the most

likely to occur. The remaining employees would be tested at the MRO's

discretion.

The second change permits the employer to direct the individual to

undergo alcohol testing, as well as drug testing, if the Medical Review

Officer determines that such testing would be appropriate. No

commenters addressed this change, and the final rule includes this

provision as it was proposed.

Medical Review Officer Functions

The NPRM proposed to substantially revise section VII of appendix

I. First, changes in the DOT final rule (49 CFR part 40), which

establishes the duties of the MRO in the verification process, have

superseded the FAA's rule. Rather than reiterate the duplicative

provisions of the DOT rule, which are subject to change, the revised

MRO section cites to the applicable provisions of the DOT rule and

incorporates them (and therefore any future amendments) by reference.

The MRO duties have been revised to require the MRO to inquire

whether an individual holds a part 67 airman medical certificate, to

process requests for split specimen testing, and to evaluate or refer

the individual to a SAP for evaluation, as discussed previously. The

MRO's duties in the case of an employee or applicant who holds a part

67 airman medical certificate or who would be required to hold such a

certificate to perform a safety-sensitive function for an employer are

also specified. In response to comments, the requirements for

submission of the reports to the Federal Air Surgeon have been revised.

The final rule provides that an MRO has 10 working days following

verification of a positive drug test result in which to make a

determination regarding drug dependence. All documents pertaining to

the test result, verification, dependency, SAP evaluations, and return

to duty recommendations, if any, must be forwarded to the Federal Air

Surgeon within 12 working days of verifying the positive drug test

result.

The final rule also includes specific recordkeeping requirements

for the MRO. This change makes explicit the previously implicit

requirement that MROs maintain records necessary for accomplishing

their duties. While the records are created on behalf of and remain the

employers' records, the new recordkeeping section reflects the fact

that, of necessity, there are records that must be maintained by the

MRO if the MRO is to fulfill his or her regulatory role. The provision

regarding forwarding of MRO records has been revised slightly from the

NPRM to clarify that it is the employer's obligation to ensure that MRO

records are forwarded to a new MRO, even if the employer is obtaining

MRO services through a consortium. The change reflects the FAA's

position that records associated with a particular employer's antidrug

program remain the employer's records, even if the records are

maintained by the MRO and even if the employer does not contract

directly with the MRO. The FAA recognizes that a consortium may effect

the actual transfer of records; however, the consortium does so only as

an agent of the employers using its services to implement their

programs.

Antidrug Program Plan Submission

Several changes were proposed in this NPRM to the plan submission

provisions. First, the address to which plans and plan amendments must

be submitted has been changed to reflect the Drug Abatement Division's

current address. Second, the ``transition'' provisions of the rule for

new aviation employers (paragraph A., section IX) have been changed to

eliminate the substantial grace period previously provided. Commenters

supported the FAA's view that given the published guidance available

from the FAA and from private sector entities and the wealth of

material and experience now available, there is no longer a reason to

permit carriers to begin operations without having implemented an FAA-

approved antidrug program.

The FAA noted in the preamble to the final rule that the compliance

deadlines for new businesses might be accelerated in the future (53 FR

47043; November 21, 1988), and, accordingly, this final rule prohibits

covered employers from beginning operations without an approved

antidrug program. The program must be implemented, and all covered

employees subject to testing, not later than the inception of

operations. Any person hired by a new certificate holder to perform a

safety-sensitive function after the issuance of the certificate must

undergo pre-employment testing. Additionally, each new employer must

ensure that employees performing safety-sensitive functions by contract

are subject to an FAA-approved antidrug program within 60 days of the

implementation of the employer's program. This requirement will impose

no significant burden on new operators and any burden is outweighed by

the benefits gained by public safety.

Third, the consortium plan submission section has been revised to

require that each consortium program must provide for notification to

the FAA of changes in membership. Finally, a new provision (section IX,

paragraph A.6.) expressly states that covered employers must ensure

that they are continuously covered under an approved antidrug program.

This new section reflects the FAA's recognition of the fluid nature of

the aviation industry, in which locations, contracts, and even

corporate identities are subject to frequent changes.

Employees Located Outside the United States

As noted in the preamble to the NPRM, the original antidrug rule

published in 1988 applied to employees performing safety-sensitive

functions for the specified employers regardless of whether the

employees were located within the territory of the United States or

were located in a foreign country. In recognition of the international

implications of the rule, however, the effective date of the rule with

respect to employees located outside the territory of the United States

was deferred on a number of occasions. Significant practical and legal

concerns surrounding implementation of the antidrug rule outside the

territory of the United States remain and the FAA has substantially

revised the international section of the antidrug rule (section XII,

appendix I).

Consistent with the proposed rule, this final rule provides that no

employee located outside the territory of the United States shall be

tested for illegal use of drugs under the provisions of appendix I. To

ensure proper selection for random testing, an employer must remove

from the random testing pool any employee assigned to perform safety-

sensitive functions solely outside the territory of the United States,

since such an employee is not available for testing. The employee must

be returned to the random testing pool as soon as the employee once

more begins to perform functions wholly or partially within the

territory of the United States. As noted above, the employer has the

option of requiring the employee to undergo a pre-employment test prior

to returning to the performance of a safety-sensitive function within

the territory of the United States (and therefore to the random testing

pool). This section also provides that the provisions of appendix I do

not apply to employees performing safety-sensitive functions by

contract outside the territory of the United States.

Although most commenters supported this revision, one commenter

expressed concern that employees performing safety-sensitive functions

within the territory of the United States may be subject to random

testing at a disproportionately high rate if employees outside the

territory of the United States are excused from testing and that

employees taken out of the random testing pool may pose a safety risk.

The FAA is cognizant of concerns about safety and economic parity that

are raised by this exclusion. However, the FAA has determined that the

burdens associated with extraterritorial testing outweigh the possible

safety benefit. The FAA expects that employers will ensure that persons

performing safety-sensitive functions wholly or partially within the

territory of the United States remain subject to an effective random

testing program. Finally, employers concerned about drug use by

employees removed from the random testing pool may, as addressed above,

subject such employees to pre-employment testing prior to permitting

the employees to perform safety-sensitive functions within the

territory of the United States.

Paperwork Reduction Act Approval

The recordkeeping and reporting requirements of the final antidrug

rule, issued on November 14, 1988, were previously submitted to the

Office of Management and Budget (OMB) for approval in accordance with

the Paperwork Reduction Act of 1980. The OMB approval is under control

number 2120-0535. The recordkeeping and reporting requirements in this

amendment to the final rule were submitted to OMB during the NPRM stage

and approved under the same OMB#2120-0535. There have been no changes

to the paperwork or recordkeeping burden since the NPRM approval.

Federalism Implications

The amendments in this final rule will not have substantial direct

effects on the States, on the relationship between the national

government and the States, or on the distribution of power and

responsibilities among the various levels of government. Therefore, in

accordance with Executive Order 12612, the FAA has determined that this

final rule does not have sufficient federalism implications to warrant

preparation of a Federalism Assessment.

Regulatory Evaluation Summary

The FAA has determined that this final rule is not a significant

regulatory action under Executive Order 12866. The Agency has prepared

a regulatory evaluation that analyzes the costs and benefits of this

final rule. The FAA does not expect that this rule will have a

significant economic effect on a substantial number of small entities

under the criteria of the Regulatory Flexibility Act.

A copy of the complete regulatory evaluation, regulatory

flexibility determination, and international trade assessment has been

placed in the docket. A copy may be obtained by contacting the office

identified under FOR FURTHER INFORMATION CONTACT.

International Trade Impact Analysis

The FAA finds that this rule will not have an adverse impact on

trade opportunities for either U.S. firms doing business overseas or

foreign firms doing business in the United States.

Significance

This rule is not likely to result in an annual effect on the

economy of $100 million or more, although it may result in a small

increase in costs for consumers, industry, or Federal, State, or local

agencies. The FAA has determined that the rule is not significant under

the Executive Order 12866 and the Regulatory Policies and Procedures of

the Department of Transportation (44 FR 11034; February 2, 1979).

List of Subjects

14 CFR Part 65

Aircraft, Airmen, Air safety, Air transportation, Aviation safety,

Drug abuse, Drugs, Narcotics, Safety, Transportation.

14 CFR Part 121

Air carriers, Aircraft, Aircraft pilots, Airmen, Airplanes, Air

transportation, Aviation safety, Drug abuse, Drugs, Narcotics, Pilots,

Safety, Transportation.

14 CFR Part 135

Air carriers, Aircraft, Aircraft pilots, Airmen, Airplanes, Air

taxi, Air transportation, Aviation safety, Drug abuse, Drugs,

Narcotics, Pilots, Safety, Transportation.

In consideration of the foregoing, the Federal Aviation

Administration is amending 14 CFR parts 65, 121, and 135 as follows:

PART 65--CERTIFICATION: AIRMEN OTHER THAN FLIGHT CREWMEMBERS

1. The authority citation for part 65 continues to read as follows:

Authority: 49 U.S.C. 1354(a), 1355, 1421, 1422, and 1427

(revised, Pub. L. 102-143, October 28, 1991); 49 U.S.C. 106(g)

(revised, Pub. L. 97-449, January 12, 1983).

2. Section 65.46 is amended by revising paragraphs (a)(2) and (d),

by removing paragraph (e), and redesignating paragraph (f) as paragraph

(e) to read as follows:

Sec. 65.46 Use of prohibited drugs.

(a) * * *

(2) An ``employer'' means an air traffic control facility not

operated by the FAA or by or under contract to the U.S. military that

employs a person to perform an air traffic control function.

* * * * *

(d) No employer shall knowingly use any person to perform, nor may

any person perform for an employer, either directly or by contract, any

air traffic control function if the person has a verified positive drug

test result on or has refused to submit to a drug test required by

appendix I to part 121 of this chapter and the person has not met the

requirements of appendix I to part 121 of this chapter for returning to

the performance of safety-sensitive duties.

* * * * *

PART 121--CERTIFICATION AND OPERATIONS: DOMESTIC, FLAG, AND

SUPPLEMENTAL AIR CARRIERS AND COMMERCIAL OPERATORS OF LARGE

AIRCRAFT

3. The authority citation for part 121 continues to read as

follows:

Authority: 49 U.S.C. 1354(a), 1355, 1356, 1357, 1401, 1421-1430,

1485, and 1502 (revised Pub. L. 102-143, October 28, 1991); 49

U.S.C. 106(g) (revised, Pub. L. 97-449, January 12, 1983).

4. Section 121.455 is amended by revising paragraph (c) and by

removing paragraph (d) to read as follows:

Sec. 121.455 Use of prohibited drugs.

* * * * *

(c) No certificate holder shall knowingly use any person to

perform, nor shall any person perform for a certificate holder, either

directly or by contract, any safety-sensitive function if the person

has a verified positive drug test result on or has refused to submit to

a drug test required by appendix I to part 121 of this chapter and the

person has not met the requirements of appendix I for returning to the

performance of safety-sensitive duties. -

5. Appendix I is revised to read as follows:

Appendix I to Part 121--Drug Testing Program

This appendix contains the standards and components that must be

included in an antidrug program required by this chapter.

I. DOT Procedures. Each employer shall ensure that drug testing

programs conducted pursuant to 14 CFR parts 65, 121, and 135 complies

with the requirements of this appendix and the ``Procedures for

Transportation Workplace Drug Testing Programs'' published by the

Department of Transportation (DOT) (49 CFR part 40). An employer may

not use or contract with any drug testing laboratory that is not

certified by the Department of Health and Human Services (DHHS)

pursuant to the DHHS ``Mandatory Guidelines for Federal Workplace Drug

Testing Programs'' (53 FR 11970; April 11, 1988 as amended by 59 FR

29908; June 9, 1994).

II. Definitions. For the purpose of this appendix, the following

definitions apply:

Accident means an occurrence associated with the operation of an

aircraft which takes place between the time any person boards the

aircraft with the intention of flight and all such persons have

disembarked, and in which any person suffers death or serious injury,

or in which the aircraft receives substantial damage.

Annualized rate for the purposes of unannounced testing of

employees based on random selection means the percentage of specimen

collection and testing of employees performing a safety-sensitive

function during a calendar year. The employer shall determine the

annualized rate by referring to the total number of employees

performing a safety-sensitive function for the employer at the

beginning of the calendar year.

Employee is a person who performs, either directly or by contract,

a safety-sensitive function for an employer, as defined below.

Provided, however, that an employee who works for an employer who holds

a part 135 certificate and who holds a part 121 certificate is

considered to be an employee of the part 121 certificate holder for the

purposes of this appendix.

Employer is a part 121 certificate holder, a part 135 certificate

holder, an operator as defined in Sec. 135.1(c) of this chapter, or an

air traffic control facility not operated by the FAA or by or under

contract to the U.S. military. Provided, however, that an employer may

use a person who is not included under that employer's drug program to

perform a safety-sensitive function, if that person is subject to the

requirements of another employer's FAA-approved antidrug program.

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.

Prohibited drug means marijuana, cocaine, opiates, phencyclidine

(PCP), amphetamines, or a substance specified in Schedule I or Schedule

II of the Controlled Substances Act, 21 U.S.C. 811, 812, unless the

drug is being used as authorized by a legal prescription or other

exemption under Federal, state, or local law.

Refusal to submit means that an individual failed to provide a

urine sample as required in 49 CFR part 40, without a valid medical

explanation, after he or she has received notice of the requirement to

be tested in accordance with this appendix or engaged in conduct that

clearly obstructed the testing process.

Safety-sensitive function means a function listed in section III of

this appendix.

Substance abuse professional means a licensed physician (Medical

Doctor or Doctor of Osteopathy), or a licensed or certified

psychologist, social worker, employee assistance professional, or

addiction counselor (certified by the National Association of

Alcoholism and Drug Abuse Counselors Certification Commission), with

knowledge of and clinical experience in the diagnosis and treatment of

disorders related to drug use and abuse.

Verified negative drug test result means that the test result of a

urine sample collected and tested under this appendix has been verified

by a Medical Review Officer as negative in accordance with 49 CFR part

40.

Verified positive drug test result means that the test result of a

urine sample collected and tested under this appendix has been verified

by a Medical Review Officer as positive in accordance with 49 CFR part

40.

III. Employees Who Must Be Tested. Each person who performs a

safety-sensitive function directly or by contract for an employer must

be tested pursuant to an FAA-approved antidrug program conducted in

accordance with this appendix:

A. Flight crewmember duties.

B. Flight attendant duties.

C. Flight instruction duties.

D. Aircraft dispatcher duties.

E. Aircraft maintenance or preventive maintenance duties.

F. Ground security coordinator duties.

G. Aviation screening duties.

H. Air traffic control duties.

IV. Substances for Which Testing Must Be Conducted. Each employer

shall test each employee who performs a safety-sensitive function for

evidence of marijuana, cocaine, opiates, phencyclidine (PCP), and

amphetamines during each test required by section V of this appendix.

As part of a reasonable cause drug testing program established pursuant

to this part, employers may test for drugs in addition to those

specified in this part only with approval granted by the FAA under 49

CFR part 40 and for substances for which the Department of Health and

Human Services has established an approved testing protocol and

positive threshold.

V. Types of Drug Testing Required. Each employer shall conduct the

following types of testing in accordance with the procedures set forth

in this appendix and the DOT ``Procedures for Transportation Workplace

Drug Testing Programs'' (49 CFR part 40):

A. Pre-employment Testing.

1. Prior to the first time an individual performs a safety-

sensitive function for an employer, the employer shall require the

individual to undergo testing for prohibited drug use.

2. An employer is permitted to require pre-employment testing of an

individual if the following criteria are met:

(a) The individual previously performed a covered function for the

employer;

(b) The employer removed the individual from the employer's random

testing program conducted under this appendix for reasons other than a

verified positive test result on an FAA-mandated drug test or a refusal

to submit to such testing; and

(c) The individual will be returning to the performance of a

safety-sensitive function.

3. No employer shall allow an individual required to undergo pre-

employment testing under section V, paragraphs A.1 or A.2 of this

appendix to perform a safety-sensitive function unless the employer has

received a verified negative drug test result for the individual.

4. The employer shall advise each individual applying to perform a

safety-sensitive function at the time of application that the

individual will be required to undergo pre-employment testing to

determine the presence of marijuana, cocaine, opiates, phencyclidine

(PCP), and amphetamines, or a metabolite of those drugs in the

individual's system. The employer shall provide this same notification

to each individual required by the employer to undergo pre-employment

testing under section V, paragraph A.(2) of this appendix.

B. Periodic Testing. Each employee who performs a safety-sensitive

function for an employer and who is required to undergo a medical

examination under part 67 of this chapter shall submit to a periodic

drug test. The employee shall be tested for the presence of marijuana,

cocaine, opiates, phencyclidine (PCP), and amphetamines, or a

metabolite of those drugs during the first calendar year of

implementation of the employer's antidrug program. The tests shall be

conducted in conjunction with the first medical evaluation of the

employee or in accordance with an alternative method for collecting

periodic test specimens detailed in an employer's approved antidrug

program. An employer may discontinue periodic testing of its employees

after the first calendar year of implementation of the employer's

antidrug program when the employer has implemented an unannounced

testing program based on random selection of employees.

C. Random Testing. Each employer shall randomly select employees

who perform a safety-sensitive function for the employer for

unannounced drug testing. The employer shall randomly select employees

for unannounced testing for the presence of marijuana, cocaine,

opiates, phencyclidine (PCP), and amphetamines, or a metabolite of

those drugs in an employee's system using a random number table or a

computer-based, number generator that is matched with an employee's

social security number, payroll identification number, or any other

alternative method approved by the FAA.

(1) During the first 12 months following implementation of

unannounced testing based on random selection pursuant to this

appendix, an employer shall meet the following conditions:

(a) The unannounced testing based on random selection of employees

shall be spread reasonably throughout the 12-month period.

(b) The last collection of specimens for random testing during the

year shall be conducted at an annualized rate equal to not less than 50

percent of employees performing a safety-sensitive function.

(c) The total number of unannounced tests based on random selection

during the 12 months shall be equal to not less than 25 percent of the

employees performing a safety-sensitive function.

(2) Following the first 12 months, an employer shall achieve and

maintain an annualized rate equal to not less than 50 percent of

employees performing a safety-sensitive function.

D. Post-accident 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.

E. Testing Based on Reasonable Cause. Each employer shall test each

employee who performs a safety-sensitive function and who is reasonably

suspected of using a prohibited drug. Each employer shall test an

employee's specimen for the presence of marijuana, cocaine, opiates,

phencyclidine (PCP), and amphetamines, or a metabolite of those drugs.

An employer may test an employee's specimen for the presence of other

prohibited drugs or drug metabolites only in accordance with this

appendix and the DOT ``Procedures for Transportation Workplace Drug

Testing Programs'' (49 CFR part 40). At least two of the employee's

supervisors, one of whom is trained in detection of the symptoms of

possible drug use, shall substantiate and concur in the decision to

test an employee who is reasonably suspected of drug use; provided,

however, that in the case of an employer other than a part 121

certificate holder who employs 50 or fewer employees who perform

safety-sensitive functions, one supervisor who is trained in detection

of symptoms of possible drug use shall substantiate the decision to

test an employee who is reasonably suspected of drug use. 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.

F. Return to Duty 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

appendix or receiving a verified positive drug test result on a test

conducted under this appendix the individual shall undergo a 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.

G. Follow-up Testing. 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 appendix or receiving a verified positive drug test result on a

test conducted under this appendix.

2. The number and frequency of such testing shall be determined by

the employer's Medical Review Officer. In the case of any individual

evaluated under this appendix and determined to be in need of

assistance in resolving problems associated with illegal use of drugs,

follow-up testing shall consist of at least six tests in the first 12

months following the employee's return to duty.

3. The employer may direct the employee to undergo testing for

alcohol, in addition to drugs, if the Medical Review Officer 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 Medical Review Officer may terminate the

requirement for follow-up testing at any time after the first six tests

have been conducted, if the Medical Review Officer determines that such

testing is no longer necessary.

VI. Administrative and Other Matters

A. Collection, Testing, and Rehabilitation Records. Each employer

shall maintain all records related to the collection process, including

all logbooks and certification statements, for two years. Each employer

shall maintain records of employee confirmed positive drug test

results, SAP evaluations, and employee rehabilitation for five years.

The employer shall maintain records of negative test results for 12

months. The employer shall permit the Administrator or the

Administrator's representative to examine these records.

B. Laboratory Inspections. The employer shall contract only with a

laboratory that permits pre-award inspections by the employer before

the laboratory is awarded a testing contract and unannounced

inspections, including examination of any and all records at any time

by the employer, the Administrator, or the Administrator's

representative.

C. Employee Request for Test of a Split Specimen. Not later than 72

hours after receipt of notice of a verified positive test result, an

employee may request that the MRO arrange for testing of the second,

``split'' specimen obtained during the collection of the primary

specimen that resulted in the confirmed positive test result.

2. The split specimen shall be tested in accordance with the

procedures in 49 CFR part 40.

3. 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 pendency of the split specimen test

result. 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.

D. 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 the specific,

written consent of the employee authorizing release of the information

to an identified person, to the National Transportation Safety Board as

part of an accident investigation upon written request or order, to the

FAA upon request, or as required by this appendix. Except as required

by law or this appendix, no employer shall release employee

information.

E. Refusal To Submit to Testing. Each employer shall notify the FAA

within 5 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 appendix. Notification should

be sent to: Federal Aviation Administration, Aviation Standards

National Field Office, Airmen Certification Branch, AVN-460, P.O. Box

25082, Oklahoma City, OK 73125.

2. Employers are not required to notify the above office of

refusals to submit to pre-employment or return to duty testing.

F. Permanent Disqualification From Service. An employee who has

verified positive drug test results on two drug tests required by

appendix I to part 121 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.

VII. Medical Review Officer/Substance Abuse Professional -

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

appendix. 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.

A. MRO and Substance Abuse Professional Duties. In addition to the

functions delineated in 49 CFR part 40, the MRO shall perform the

duties listed hereunder.

1. During the MRO's interview with an employee or applicant who has

had a confirmed positive drug test result, the MRO shall inquire, and

the individual must disclose, whether the individual holds an airman

medical certificate issued under part 67 of this chapter or, if an

applicant, would be required to hold such certificate in order to

perform the duties of the position for which the applicant is applying.

2. The MRO must process employee requests for testing of split

specimens in accordance with section VI, paragraph C, of this appendix.

3. The MRO shall advise each employee who receives a verified

positive drug test result on or refuses to submit to a drug test

required under this appendix of the resources available to the employee

in evaluating and resolving problems associated with illegal use of

drugs, including the names, addresses, and telephone numbers of

substance abuse professionals (SAP) and counseling and treatment

programs.

4. The MRO shall ensure that each employee who receives a verified

positive drug test result on or refuses to submit to a drug test

required under this appendix is evaluated by a SAP to determine if the

employee is in need of assistance in resolving problems associated with

illegal use of drugs. The MRO may perform this evaluation if the MRO is

qualified as a SAP.

5. Prior to recommending that an employee be returned to the

performance of a safety-sensitive function after the employee has

received a verified positive drug test result on or refused to submit

to a drug test required by this appendix, the MRO shall--

a. Ensure that an employee returning to the performance of a

safety-sensitive function has received a return to duty verified

negative drug test result on a test conducted under section V.,

paragraph F of this appendix;

b. Ensure that each employee has been evaluated in accordance with

section VII, paragraph A.4 of this appendix; and-

c. Ensure that the employee demonstrates compliance with any

rehabilitation program recommended following the evaluation required

under section VII, paragraph A.4 of this appendix.

6. Prior to recommending that an individual be hired to perform a

safety-sensitive function after such individual has received a verified

positive drug test result on a pre-employment test or has refused to

submit to a pre-employment drug test required by this appendix, the MRO

shall--

a. Ensure that an individual has received a verified negative drug

test result on a subsequent pre-employment test conducted under section

V, paragraph A, of this appendix;

b. Evaluate the individual (if the MRO is qualified to be a SAP),

or have the individual evaluated by a SAP, for drug use or abuse; and

c. Ensure that the individual has complied with the requirements of

any rehabilitation program in which the individual participated

following the verified positive pre-employment drug test result or the

refusal to submit to a pre-employment test.

7. The MRO shall not recommend that a person who fails to satisfy

the requirements in section VII, paragraph A.5 or A.6 of this appendix

be hired to perform or returned to duty to perform a safety-sensitive

function.

B. MRO Determinations. In the case of an employee or applicant who

holds an airman medical certificate issued under part 67 of this

chapter, or who is or would be required to hold such certificate in

order to perform a safety-sensitive function for an employer, the MRO

shall take the following actions after verifying a positive drug test

result.

1. In addition to the evaluation required in section VII, paragraph

A.4 of this appendix, the MRO shall make a determination of probable

drug dependence or nondependence as specified in part 67 of this

chapter within 10 working days of verifying the test result. If the MRO

is unable to make such a determination, he or she should so state in

the individual's records.

2. If the MRO determines that an individual is nondependent, the

MRO may recommend that the individual be returned to duty or hired to

perform safety-sensitive functions subject to the requirements of

section VII, paragraph A.5 of this appendix. If the MRO makes a

determination of probable drug dependence or cannot make a dependency

determination, the MRO shall not recommend that the individual be

returned to duty unless and until such individual has been found

nondependent by or has received a special issuance medical certificate

from the Federal Air Surgeon.

3. After making the determinations in section VII, paragraphs B.1

and B.2 of this appendix, the MRO must forward the names of such

individuals with identifying information, the determinations concerning

dependence, SAP evaluation (if available), return to duty

recommendations, and any supporting information to the Federal Air

Surgeon within 12 working days after verifying the positive drug test

result of such individuals.

4. All reports required under this section shall be forwarded to

the Federal Air Surgeon, Federal Aviation Administration, Attn: Drug

Abatement Division (AAM-800), 400 7th Street, SW., Washington, DC

20590.

C. MRO Records. Each MRO shall maintain records concerning drug

tests performed under this rule in accordance with the following

provisions:

1. All records shall be maintained in confidence and shall be

released only in accordance with the provisions of this rule and 49 CFR

part 40.

2. Records concerning drug tests confirmed positive by the

laboratory shall be maintained 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, and copies of dependency

determinations where applicable.

3. Records of confirmed negative test results shall be maintained

for 12 months.

4. All records maintained pursuant to this rule by each MRO are

subject to examination by the Administrator or the Administrator's

representative at any time.

5. Should the employer change MROs for any reason, the employer

shall ensure that the former MRO forwards all records maintained

pursuant to this rule to the new MRO within 10 working days of

receiving notice from the employer of the new MRO's name and address.

6. Any employer obtaining MRO services by contract, including a

contract through a consortium, shall ensure that the contract includes

a recordkeeping provision that is consistent with this paragraph,

including requirements for transferring records to a new MRO.

D. Evaluations and Referrals. Each employer shall ensure that a

substance abuse professional, including an MRO if he/she is qualified

as a substance abuse professional, who determines that a covered

employee requires assistance in resolving problems associated with

illegal use of drugs does not refer the employee to the substance abuse

professional's private practice or to a person or organization from

which the substance abuse professional receives remuneration or in

which the substance abuse professional has a financial interest. This

paragraph does not prohibit a substance abuse professional from

referring an employee for assistance provided through--

1. A public agency, such as a State, county, or municipality;

2. The employer or a person under contract to provide treatment for

drug problems on behalf of the employer;

3. The sole source of therapeutically appropriate treatment under

the employee's health insurance program; or

-4. The sole source of therapeutically appropriate treatment

reasonably accessible to the employee.

VIII. Employee Assistance Program (EAP)

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.

A. EAP Education Program. Each EAP education program must include

at least the following elements: display and distribution of

informational material; display and distribution of a community service

hot-line telephone number for employee assistance; and display and

distribution of the employer's policy regarding drug use in the

workplace. 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.

B. EAP Training Program. Each employer shall implement a reasonable

program of initial training for employees. The employee training

program must include at least the following elements: The effects and

consequences of drug use on personal health, safety, and work

environment; the manifestations and behavioral cues that may indicate

drug use and abuse; and documentation of training given to employees

and employer's supervisory personnel. 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 above. The

employer shall ensure that supervisors who will make reasonable cause

determinations receive at least 60 minutes of initial training. The

employer shall implement a reasonable recurrent training program for

supervisory personnel making reasonable cause determinations during

subsequent years. The employer shall identify the employee and

supervisor EAP training in the employer's drug testing plan submitted

to the FAA for approval.

IX. Employer's Antidrug Program Plan

A. Schedule for Submission of Plans and Implementation. Each

employer shall submit an antidrug program plan to the Federal Aviation

Administration, Office of Aviation Medicine, Drug Abatement Division

(AAM-800), 400 7th Street, SW., Washington, DC 20590.

2. (a) Any person who applies for a certificate under the

provisions of part 121 or part 135 of this chapter after September 19,

1994 shall submit an antidrug program plan to the FAA for approval and

must obtain such approval prior to beginning operations under the

certificate. The program shall be implemented not later than the date

of inception of operations. Contractor employees to a new certificate

holder must be subject to an FAA-approved antidrug program within 60

days of the implementation of the employer's program.

(b) Any person who intends to begin sightseeing operations as an

operator under 14 CFR 135.1(c) after September 19, 1994 shall, not

later than 60 days prior to the proposed initiation of such operations,

submit an antidrug program plan to the FAA for approval. No operator

may begin conducting sightseeing flights prior to receipt of approval;

the program shall be implemented concurrently with the inception of

operations. Contractor employees to a new operator must be subject to

an FAA-approved program within 60 days of the implementation of the

employer's program.

(c) Any person who intends to begin air traffic control operations

as an employer as defined in 14 CFR 65.46(a)(2) (air traffic control

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

military) after September 19, 1994 shall, not later than 60 days prior

to the proposed initiation of such operations, submit an antidrug

program plan to the FAA for approval. No air traffic control facility

may begin conducting air traffic control operations prior to receipt of

approval; the program shall be implemented concurrently with the

inception of operations. Contractor employees to a new air traffic

control facility must be subject to an FAA-approved program within 60

days of the implementation of the facility's program.

3. In accordance with this appendix, an entity or individual that

holds a repair station certificate issued by the FAA pursuant to part

145 of this chapter and employs individuals who perform a safety-

sensitive function pursuant to a primary or direct contract with an

employer or an operator may submit an antidrug program plan (specifying

the procedures for complying with this appendix) to the FAA for

approval. Each certificated repair station shall implement its approved

antidrug program in accordance with its terms.

4. Any entity or individual whose employees perform safety-

sensitive functions pursuant to a contract with an employer (as defined

in section II of this appendix), and any consortium may submit an

antidrug program plan to the FAA for approval on a form and in a manner

prescribed by the Administrator.

(a) The plan shall specify the procedures that will be used to

comply with the requirements of this appendix.

(b) Each consortium program must provide for reporting changes in

consortium membership to the FAA within 10 working days of such

changes.

(c) Each contractor or consortium shall implement its antidrug

program in accordance with the terms of its approved plan.

5. Each air traffic control facility operating under contract to

the FAA shall submit an antidrug program plan to the FAA (specifying

the procedures for all testing required by this appendix) not later

than November 17, 1994. Each facility shall implement its antidrug

program not later than 60 days after approval of the program by the

FAA. Employees performing air traffic control duties by contract for

the air traffic control facility (i.e., not directly employed by the

facility) must be subject to an FAA-approved antidrug program within 60

days of implementation of the air traffic control facility's program.

6. Each employer, or contractor company that has submitted an

antidrug plan directly to the FAA, shall ensure that it is continuously

covered by an FAA-approved antidrug program, and shall obtain

appropriate approval from the FAA prior to changing problems (e.g.,

joining another carrier's program, joining a consortium, or

transferring to another consortium).

B. An employer's antidrug plan must specify the methods by which

the employer will comply with the testing requirements of this

appendix. The plan must provide the name and address of the laboratory

which has been selected by the employer for analysis of the specimens

collected during the employer's antidrug testing program.

C. An employer's antidrug plan must specify the procedures and

personnel the employer will use to ensure that a determination is made

as to the veracity of test results and possible legitimate explanations

for an employee receiving a verified positive drug test result.

D. The employer shall consider its antidrug program to be approved

by the Administrator, unless notified to the contrary by the FAA,

within 60 days after submission of the plan to the FAA.

X. Reporting of Antidrug Program Results

A. Annual reports of antidrug program results shall be submitted to

the FAA in the form and manner prescribed by the Administrator by March

15 of the succeeding calendar year for the prior calendar year (January

1 through December 31) in accordance with the provisions below.

1. Each part 121 certificate holder shall submit an annual report

each year.

2. Each entity conducting an antidrug program under an FAA-approved

antidrug plan, 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. Each report shall be submitted in the form and manner prescribed

by the Administrator. No other form, including another DOT Operating

Administration's form, is acceptable for submission to the FAA.

C. Each report shall be signed by the employer's antidrug program

manager or other designated representative.

D. Each report with verified positive drug test results shall

include all of the following informational elements:

1. Number of covered employees by employee category.

2. Number of covered employees affected by the antidrug rule of

another operating administration identified and reported by number and

employee category.

3. Number of specimens collected by type of test and employee

category.

4. Number of positive drug test results verified by a Medical

Review Officer (MRO) by type of test, type of drug, and employee

category.

5. Number of negative drug test results reported by an MRO by type

of test and employee category.

6. Number of persons denied a safety-sensitive position based on a

verified positive pre-employment drug test result reported by an MRO.

7. Action taken following a verified positive drug test result(s),

by type of action.

8. Number of employees returned to duty during the reporting period

after having received a verified positive drug test result on or

refused to submit to a drug test required under the FAA rule.

9. Number of employees by employee category with tests verified

positive for multiple drugs by an MRO.

10. Number of employees who refused to submit to a drug test and

the action taken in response to the refusal(s).

11. Number of covered employees who have received required initial

training.

12. Number of supervisory personnel who have received required

initial training.

13. Number of supervisors who have received required recurrent

training.

E. Each report with only negative drug test results shall include

all of the following informational elements. (This report may only be

submitted by employers with no verified positive drug test results

during the reporting year.)

1. Number of covered employees by employee category.

2. Number of covered employees affected by the antidrug rule of

another operating administration identified and reported by number and

employee category.

3. Number of specimens collected by type of test and employee

category.

4. Number of negative tests reported by an MRO by type of test and

employee category.

5. Number of employees who refused to submit to a drug test and the

action taken in response to the refusal(s).

6. Number of employees returned to duty during the reporting period

after having received a verified positive drug test result on or

refused to submit to a drug test required under the FAA rule.

7. Number of covered employees who have received required initial

training.

8. Number of supervisory personnel who have received required

initial training.

9. Number of supervisors who have received required recurrent

training.

F. An FAA-approved consortium may prepare reports on behalf of

individual aviation employers for purposes of compliance with this

reporting requirement. However, the aviation employer shall sign and

submit such a report and shall remain responsible for ensuring the

accuracy and timeliness of each report prepared on its behalf by a

consortium.

XI. Preemption

A. The issuance of 14 CFR parts 65, 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, 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, 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.

XII. Employees Located Outside the Territory of the United States

A. No individual shall undergo a drug test required under the

provisions of this appendix while located 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 paragraph A shall be returned to the random testing

pool when the employee resumes the performance of safety-sensitive

functions wholly or partially within the territory of the United

States.

B. The provisions of this appendix shall not apply to any person

who performs a function listed in section III of this appendix by

contract for an employer outside the territory of the United States.

PART 135--AIR TAXI OPERATORS AND COMMERCIAL OPERATORS

6. The authority citation for part 135 continues to read as

follows:

Authority: 49 U.S.C. 1354(a), 1355(a), 1421-1431, and 1502

(revised Pub. L. 102-143, October 28, 1991); 49 U.S.C. 106(g)

(revised Pub. L. 97-449, January 12, 1983).

7. Section 135.249 is amended by revising paragraph (c) and by

removing paragraph (d) to read as follows:

Sec. 135.249 Use of prohibited drugs.

* * * * *

(c) No certificate holder or operator shall knowingly use any

person to perform, nor shall any person perform for a certificate

holder or operator, either directly or by contract, any safety-

sensitive function if the person has a verified positive drug test

result on or has refused to submit to a drug test required by appendix

I to part 121 of this chapter and the person has not met the

requirements of appendix I to part 121 of this chapter for returning to

the performance of safety-sensitive duties.

Issued in Washington, DC, on August 12, 1994.

David R. Hinson,

Administrator.

Note: These exhibits will not appear in the Code of Federal

Regulations.

Exhibits--FAA Drug Testing Management Information System Data

Collection Forms

BILLING CODE 4910-13-P

TR19AU94.019

TR19AU94.020

TR19AU94.021

TR19AU94.022

TR19AU94.023

TR19AU94.024

TR19AU94.025

TR19AU94.026

TR19AU94.027

TR19AU94.028

TR19AU94.029

TR19AU94.030

TR19AU94.031

TR19AU94.032

TR19AU94.033

----- - ---------[FR Doc. 94-20237 Filed 8-15-94; 4:48 pm]

BILLING CODE 4910-13-C