Alcohol Misuse Prevention Program for Personnel Engaged in Specified Aviation Activities

SUMMARY: This final rule prescribes regulations establishing the

aviation industry alcohol misuse prevention program. It includes

requirements for an alcohol testing program for air carrier employees

who perform safety-sensitive duties, in implementation of the FAA-

related provisions of the Omnibus Transportation Employee Testing Act

of 1991, which was enacted on October 28, 1991. Employees who perform

safety-sensitive duties directly or by contract for aviation employers

that hold a certificate issued under certain FAA regulations, operators

as defined in the regulations, or air traffic control facilities not

operated by the FAA or the U.S. military must be subject to an FAA-

mandated alcohol misuse prevention program (AMPP). This final rule

requires alcohol testing of these employees, proscribes certain

alcohol-related conduct, and establishes specified consequences for

engaging in alcohol misuse. Employers must provide written materials to

covered employees explaining the program and educating employees about

the dangers of alcohol misuse. Employers must also submit reports to

the FAA on the results of the program. This rule is intended to ensure

that public safety is maintained by preventing alcohol misuse by

safety-sensitive aviation employees.

DATES: This rule is effective on March 17, 1994.

FOR FURTHER INFORMATION CONTACT: 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 notice number of 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 December 15, 1992, the FAA published a notice of proposed

rulemaking (NPRM) in which it proposed to require air carriers to

institute alcohol misuse prevention programs similar to the antidrug

programs already in place (57 FR 59458). The NPRM was published as part

of a coordinated effort by the Office of the Secretary of

Transportation (OST) and four other DOT agencies to address the issue

of alcohol misuse in the transportation industries. With the exception

of the NPRM published by the Research and Special Programs

Administration, the rulemakings were initiated under the provisions of

the Omnibus Transportation Employee Testing Act of 1991 (Pub.L. 102-

143, Title V).

In conjunction with OST and the other DOT agencies, the FAA held a

series of public hearings on the regulations proposed in the NPRM. The

FAA-specific sections of each of these hearings were recorded by a

court reporter and the transcripts of the hearings with copies of any

material submitted to the hearing panel have been placed in the docket.

The testimony and written materials were considered in development of

this final rule.

Current Laws and Regulations

A variety of laws and regulations currently restrict the

consumption of alcohol by some aviation employees. Federal criminal law

prohibits any person from operating or directing the operation of a

common carrier while under the influence of alcohol. 18 U.S.C. 342. A

blood alcohol level of .10 percent is considered presumptive evidence

that the person is under the influence. 18 U.S.C. 343(1).

The FAA's regulations concerning alcohol misuse are supplemented

but not changed by this rule. Currently, under the FAA's rules, no

person may act or attempt to act as a crewmember of a civil aircraft

within 8 hours after consuming any alcoholic beverage, while under the

influence of alcohol, or while having 0.04 percent by weight or more of

alcohol in the blood. (14 CFR 91.17(a).) In limited circumstances, the

FAA's regulations require crewmembers to submit to alcohol tests

requested by State or local law enforcement officers and, upon request,

to furnish the results of such tests to the Administrator. (14 CFR

91.17(c).) Refusal to take a properly authorized law enforcement

alcohol test or to furnish the results can result in the denial,

revocation, or suspension of an airman certificate issued under part 61

or 63. (14 CFR 61.16 and 63.12a.)

Holders of or applicants for medical certificates issued under 14

CFR part 67 are subject to additional regulations regarding alcohol

use. First, a diagnosis of alcoholism is a disqualifying factor for a

medical certificate. A diagnosed alcoholic must be evaluated by the

Federal Air Surgeon and meet certain recovery criteria prior to

receiving a medical certificate. However, to facilitate recovery and to

prevent the unnecessary loss of skilled employees, a program

established by the FAA, the airline industry, and the pilots' unions

has enabled hundreds of alcoholic pilots to safely return to duty. The

program combines confrontation, therapy, and stringently monitored

aftercare.

Part 67 also provides that any individual who applies for a medical

certificate must permit access by the Administrator to information in

the National Driver Register concerning drug- and alcohol-related

driving offenses. (14 CFR 67.3.) If an individual has had two or more

such offenses within 3 years after the effective date of the rule, the

FAA may suspend or revoke a part 61 airman certificate held by the

individual or deny the individual's application for such certificate.

(14 CFR 61.15.)

Discussion of Comments and Final Rule

The Common Preamble

A common preamble to all of the related NPRMs proposing alcohol

testing rules was published on December 15, 1992 (57 FR 59382, et

seq.). This common preamble contained a thorough discussion of the

comments submitted to the DOT advance notice of proposed rulemaking

(ANPRM) published on November 2, 1989, and an overview of the general

issues related to alcohol use in the transportation industries. A

similar introductory discussion is found in the common preamble to this

final rule and the final alcohol misuse prevention rules published by

the other affected DOT agencies elsewhere in today's Federal Register.

The common preamble also responds to comments submitted to the various

DOT agency dockets that raise multimodal aspects of the final rules or

the Act. This common preamble is incorporated into this final rule by

reference. Because the majority of the issues raised in comments were

addressed in the common preamble, the FAA views comments addressed to

other DOT agencies as part of its docket, even though copies of those

comments are not physically stored with the other comments. Interested

persons can request access to those comments through the FAA docket.

Any aspects of the final rule that are not discussed below are

addressed in the common preamble.

Alcohol Misuse Prevention Program (AMPP)

The essential provisions of the AMPP proposed by the FAA in the

NPRM have remained largely unchanged in this final rule. The rule uses

three primary tools for reducing the threat of alcohol misuse in

aviation. First, by amending parts 65, 121, and 135, the rule prohibits

certain alcohol-related conduct by employees performing safety-

sensitive duties. Second, under the provisions of new appendix J to

part 121, such employees must be subject to pre-employment, random,

post-accident, reasonable suspicion, return to duty, and follow-up

alcohol testing. This testing is federally-mandated but will be

administered by the affected employers. Third, in accordance with

requirements in appendix J, employees subject to the rule must be

provided with materials designed to educate them about the provisions

of the rule and the consequences of engaging in alcohol misuse.

Other Requirements Imposed by Employers; Requirement for Notice

Only a few commenters addressed the issue of possible conflicts or

confusion regarding company-required programs and FAA-mandated

programs. These commenters (representing both labor and management)

focused on the issue of alcohol test results of 0.02 to 0.039. The

commenters noted that although the FAA's NPRM proposed specific actions

for test results falling within this range, an employer is not

precluded from taking severe employment action based on these results

should the employer so choose. A number of labor organizations wanted

the FAA to preclude such action in its final rule.

The FAA has not adopted these comments. The choice of whether to

continue to employ an individual should properly remain within the

discretion of the employer. We also note that employment or other

consequences outside those required by the rule may be subject to both

State law and labor-management negotiation.

With respect to the establishment of a separate company policy, a

number of commenters noted that companies already had alcohol testing

or prevention programs in place. These commenters stated that

established programs should suffice for compliance with the FAA's rule,

or that the FAA's rule would unnecessarily duplicate these programs.

The FAA recognizes that, as was the case when the antidrug rule was

first implemented, some employers might have programs that encompass

some or all of this rule's requirements. To ensure complete and uniform

compliance with a single regulatory standard, however, we are not

permitting company programs to substitute for programs required by this

rule. Should an aviation employer determine that, as a matter of

company policy, a different program should be implemented or continued,

the program must be clearly separate from the program required under

this rule, with appropriate notice given prior to tests under this

rule. The FAA will not permit commingling of employer-directed and FAA-

mandated programs.

Employers Required To Establish Programs

The NPRM reflected the FAA's best assessment, based on the

developments in the FAA's industry antidrug program, of the categories

of employers that should be subject to the alcohol misuse rule. Like

the antidrug rule, the FAA determined that the minimal benefit to

public safety that might accrue from inclusion of operators that did

not hold part 121 or part 135 certificates did not warrant the cost and

intrusiveness of alcohol testing. A few commenters addressed this issue

and requested additional relief for the small aviation employers we did

propose to cover. The FAA has assessed its requirements and has elected

to retain most of its regulatory provisions unchanged from the NPRM. We

have, however, reduced the reporting requirement burden, which will be

addressed below.

The final rule will include essentially the same classes of

employers as are covered by the anti-drug rule: 14 CFR part 121

certificate holders, 14 CFR part 135 certificate holders, sightseeing

operators who meet the criteria of 14 CFR 135.1(c), and air traffic

control (ATC) facilities not operated by the FAA or by or under

contract to the U.S. military will have to establish alcohol misuse

prevention programs. Companies with employees who perform safety-

sensitive functions by contract for these employers will be permitted

to establish and manage programs under this appendix. However, while a

contractor company that manages its own program will perform all of the

functions required of an ``employer'' in appendix J, the certificate

holders, operators, and ATC facilities will remain responsible for

ensuring that all covered employees who perform services for them are

subject to an FAA-mandated program.

Employees Subject to the Rule

The NPRM proposed to retain essentially the same coverage as the

antidrug rule. The covered categories included persons performing any

of the following duties: flight crewmember, flight attendant, flight

instruction, aircraft dispatch, aircraft maintenance, ground security

coordinator, aviation screening, and air traffic control. The category

of flight test personnel was not included because it was redundant. The

category of ground security coordinator duties was specified separately

to reflect the coverage intended by the term ``aviation security'' in

the antidrug rule.

In order to determine if any changes should be made in the

categories of covered employees, the FAA asked a number of questions in

the NPRM. The questions were intended to solicit comment on whether the

increased benefit to safety that could accrue by including other

functions would warrant the imposition of an alcohol testing

requirement on individuals performing those functions or if, consistent

with safety, categories of employees could be eliminated from the rule.

The comments on this issue ranged from those stating that since the

rule was unnecessary it should provide only the minimum coverage

required by the Act to a few comments stating that every aviation

employee who could even possibly affect safety should be subject to

alcohol testing. Most labor organizations favored the former approach.

A number of commenters supporting limited application of the rule

recommended that only maintenance personnel who actually return

aircraft to service should be covered by the rule. A few commenters

supported adding to the coverage proposed in the NPRM. These commenters

primarily identified refuelers and deicers as categories of employees

that should be subject to alcohol testing.

The FAA has chosen to retain the categories of covered employees

proposed in the NPRM. Although a system of checks and inspections does

exist to ensure that maintenance activities are properly performed, the

FAA has determined that it is essential that the individuals who

perform aircraft maintenance activities be subject to this rule. (The

term preventive maintenance has been added to maintenance not because

the FAA intends to increase the reach of the rule, but rather to ensure

that, as was intended in the NPRM, the rule clearly parallels the

coverage of the antidrug rule.)

The FAA carefully reviewed the comments supporting the inclusion of

additional categories of covered employees. For a number of reasons,

the FAA has elected not to adopt these recommendations. First, the FAA

is aware that the costs associated with this rule will be significant.

Each additional requirement that was considered was therefore

scrutinized with respect to the cumulative burden that would accrue.

Based on that consideration, the FAA has determined that the possible

marginal benefit that might be achieved by adding categories of covered

employees is outweighed by the burden associated with such a change.

Prohibited Alcohol-Related Conduct

This rule will prohibit specific alcohol-related conduct by covered

employees and will also prohibit an employer from using a covered

employee if the employer has actual knowledge that the employee has

engaged in such conduct. Each of the prohibitions has been carefully

tailored to minimize the restriction on the otherwise lawful use of

alcohol by covered employees. With the exception of use of alcohol

after an accident, each prohibition is limited to prohibiting alcohol

use that may affect the performance of covered functions. Some

commenters requested that the FAA list the specific actions within a

safety-sensitive function that trigger coverage under this rule. Given

the variety of tasks encompassed within each category and the

differences in the conduct of aviation operations by different

employers, however, a comprehensive regulatory listing of such

activities is not possible. Therefore, as was proposed in the NPRM,

coverage under the rule will be determined by the employer based on the

requirements of the FAA's regulations and the employer's experience and

knowledge of the employees' duties.

The identification of the activities that will subject employees to

this rule shall be included in the company policy required under

appendix J and are subject to FAA review.

The specific prohibitions are:

Alcohol Concentration: The OST common preamble contains a detailed

discussion of the prohibited alcohol concentrations and a disposition

to the comments regarding this issue. It should be noted however, that

although this rule will contain a bifurcated system of test results and

consequences (0.02-0.039 and 0.04 or greater) the rule will not affect

the current regulatory provision in 14 CFR 91.17 under which

crewmembers are subject to sanction by the FAA for having a blood

alcohol concentration of 0.04% or greater.

Performance of covered functions while under the influence of

alcohol: As noted above, the FAA's current regulations prohibit any

person from acting or attempting to act as a crewmember while under the

influence of alcohol. While the FAA's experience in enforcing this

provision indicates that it is a useful tool in preventing alcohol

misuse, it has been determined that such a prohibition in the context

of an employer-based program, with no intervention by a Federal agency

or right to review, could lead to unacceptable treatment of employees.

This provision has therefore been removed as a violation of the rule.

The concept of ``under the influence'' remains present in this

final rule, however, as part of the reasonable suspicion testing

requirement. Under the final rule, if an employer were to determine

that sufficient evidence existed to believe that a covered employee was

under the influence of alcohol, the employer would be required to

administer a reasonable suspicion test. If no test could be performed,

safety would still be protected because the employee must be removed

from performing safety-sensitive duties temporarily.

This rule does not limit the employer's authority to remove the

employee from the performance of safety-sensitive duties if the

employer believed, notwithstanding an alcohol test result of less than

0.04 or no test at all, that the employee was impaired. As noted

previously, the employer must remove the employee, at least

temporarily, if the employee's alcohol concentration was 0.02 or

greater but less than 0.04 or if no test could be performed. However,

any action other than a temporary removal in either the absence of a

test result or with a test result under 0.04 would have to be under the

employer's independent authority.

On-duty use: A number of commenters expressed concern that the

FAA's proposed definition of ``performing safety-sensitive functions''

could result in the application of the on-duty use prohibition to

employees who might be at home on reserve status for days at a time.

Given the dramatic effect of a violation of this provision (i.e., it

invokes the permanent bar addressed below), these commenters requested

clarification of this provision.

This provision applies to any covered employee who, while not

actually performing a safety-sensitive function, could be called at any

time to perform. The FAA intends the provision to reach only employees

who are at work. Affected employees include, for example, a maintenance

supervisor who is in her office who could be called at any time to take

over on a maintenance task. Such employees would have to refrain from

using alcohol or would be in violation of the on-duty use provision.

On-call or reserve employees who are not at work, such as those

mentioned above, will, however, be subject to the prohibitions on pre-

duty use of alcohol.

Additionally, the rule should not be read as permitting on-duty use

to be presumed from an alcohol concentration above the prohibited

levels. This would of necessity require the application of back

extrapolation to the results, which, as analyzed in detail in the

common preamble, is not permitted. To assert a violation of this

provision, the employer would have to have clear evidence of

consumption of alcohol by a safety-sensitive employee (e.g., an

admission, credible witnesses). One important aspect of the prohibition

is that it is triggered by the consumption of items other than

alcoholic beverages. Use of a medication containing alcohol while on

duty will violate this rule and will trigger the permanent bar

provisions discussed below. The FAA encourages employers and labor

organizations to take appropriate steps to warn affected employees of

this prohibition.

Pre-duty use: As was proposed in the NPRM, this rule provides a

two-tiered prohibition with respect to pre-duty use of alcohol. No

commenter opposed prohibiting alcohol use by a crewmember prior to

duty, and many commenters wanted the prohibition extended to up to 24

hours before a flight. As noted above, the FAA already prohibits any

person from acting or attempting to act as a crewmember within 8 hours

after the consumption of any alcoholic beverage. This prohibition was

based on a determination by the FAA that a specified period of

abstinence would decrease the likelihood that an individual would be

impaired by alcohol while acting as a crewmember. The FAA is aware that

individuals who drink to excess may still be impaired even after

abstaining for 8 hours; however, the 8-hour rule establishes an

adequate behavioral limitation for the majority of persons who are not

heavy drinkers. The FAA has determined that the 8-hour limit remains

appropriate for crewmembers. Additionally, in order to ensure

consistency between the prohibitions affecting FAA and other air

traffic controllers, the pre-duty use period for these employees has

been changed to 8 hours.

Although with respect to crewmembers, this provision does, to some

extent, duplicate the restrictions in 14 CFR 91.17(a), it is limited in

application to the covered employees of the specified employers under

the rule. The rule also prohibits the employers from using covered

employees who have impermissibly used alcohol--a restriction on

employers that does not currently exist in the FAA's regulations.

A number of commenters objected to the FAA proposal to add a 4-hour

pre-duty use limitation for other classes of covered employees. Some

commenters believed that imposition of a 4-hour rule on all covered

employees would have little safety benefit while intruding

significantly into the lives of employees. The FAA agrees that the

nature of the safety-sensitive functions other than crewmember duties

is sufficiently different that an 8-hour limitation on pre-duty use of

alcohol for those classes could constitute an unwarranted intrusion by

the Federal government into the off-duty lives of aviation industry

employees. The FAA continues to believe, however, that the minimal

disruption that might be caused by a 4-hour limitation is outweighed by

the safety benefit that is achieved by moderating the use of alcohol by

safety-sensitive employees before they perform their duties.

The FAA is also not adopting a suggestion made in the public

hearings regarding other DOT agencies' rules under which employees

subject to short notice calls to work would have to abstain from

consuming alcohol for 4 hours prior to duty or after being called to

duty, whichever is shortest. The FAA does not believe that in the

context of the aviation industry there is any situation in which the

need for the employee to perform safety-sensitive functions is so

exigent that a 4- or 8-hour limitation should be waived.

Use following an accident: As proposed in the NPRM, a covered

employee with 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 would be required to refrain from using alcohol

for 8 hours unless the employee had been given a post-accident test or

the employer had determined that the employee's performance could not

have contributed to the accident. The restriction on use, as proposed,

would primarily affect those employees whose performance of duties just

around the time of the accident may have contributed to the accident

and whose consumption of alcohol prior to the time of the accident

would be relevant information.

A number of commenters questioned the FAA's ability to enforce this

provision and the employees' ability to comply. Some commenters stated

that it was unfair of the FAA to consider denying individuals who had

been traumatized by an accident the relief that a drink might provide.

The FAA recognizes that the rule might be difficult to enforce, and we

encourage employers to attempt to control the actions of the affected

employees as circumstances permit. The final rule also includes, as in

the NPRM, an actual notice requirement so that employees who are

unaware of an accident or who do not realize that their performance of

duties may be implicated are not held to have violated the rule if,

unknowingly, they use alcohol during the post-accident period. The FAA

notes that the prohibition only applies if an employee performed a

safety-sensitive function on the aircraft involved in an accident at or

near the time of the accident. The rule does not, for example, affect

individuals who performed maintenance on the aircraft days or weeks

prior to the accident.

Despite the potential difficulties associated with this provision,

however, and the commonly accepted practice of using alcohol to handle

stressful situations, the prohibition is necessary to ensure that use

of alcohol before an accident is not masked by allegedly post-accident

consumption of alcohol.

Refusal To Submit to a Required Alcohol Test

A number of commenters objected to the FAA's proposal to treat

refusal to submit to random, post-accident, reasonable suspicion, or

follow-up testing as a rule violation (as discussed in the common

preamble), or as a potential basis for the denial, suspension, or

revocation of a certificate issued under 14 CFR part 61, 63, or 65. A

few of these commenters stated that because alcohol testing was

unconstitutional there should be no sanction attached to refusing to be

tested. The Constitutional aspects of this rule are addressed in the

common preamble.

A number of labor groups expressed concern that employees who were

subjected to harassing tests or who became aware that proper procedures

were not being followed (e.g., the breath alcohol technician (BAT)

reuses a mouthpiece) would be placed in the position of having to

submit to questionable tests or face possibly severe sanctions. As with

any potentially problematic test, the employee will have to determine

whether to proceed with the test or to decline. It would then be for

the employer in either situation to evaluate the facts, review the

provisions of this rule and in 49 CFR part 40, and make a decision on

the validity of the test or the legitimacy of the employee's asserted

bases for declining the test. The FAA would have to similarly evaluate

all of the available information if the FAA considers taking action in

the case of an alleged refusal. As a practical matter, these situations

can be avoided if each employer ensures that its supervisors and BATs

are thoroughly trained and if a knowledgeable employer representative

is available to respond quickly to concerns raised during the course of

an alcohol test.

No commenter objected to the FAA's decision not to attach any

consequences other than preclusion from performing a safety-sensitive

function to an individual's choice not to submit to pre-employment or

return to duty testing. These provisions are consistent with the FAA's

choice in the antidrug rule not to base certificate action on refusals

of pre-employment drug tests, and therefore, these provisions remain

unchanged.

Required Alcohol Testing

The common preamble discusses in detail the types of alcohol tests

that are required under this rule and those of the other DOT agencies.

There are, however, certain aspects of alcohol testing raised by the

commenters that are specific to the aviation industry. Those issues are

addressed below.

Pre-employment testing: As discussed more fully in the common

preamble, the nomenclature used to describe this type of test has been

changed from ``pre-employment/pre-duty,'' as used in the NPRM, to

simply ``pre-employment.'' It should be noted that this change is not

intended to affect the substantive requirements for this type of

testing, or to imply that the testing must occur prior to hiring an

individual. As was proposed in the NPRM, under this final rule

employers may conduct pre-employment testing at any time prior to the

first time the individual is used to perform (i.e., is ``employed'' in)

a safety-sensitive function. An individual may be tested prior to

completion of the hiring process; after he or she has been hired for a

safety-sensitive position but before actual commencement of duties; or,

in the case of a current employee, prior to transferring the employee

from performing non-safety-sensitive duties to performing safety-

sensitive duties.

In the NPRM, the FAA requested specific comment on whether the

proposed procedure for using the results of prior pre-employment

alcohol tests would be useful. The majority of commenters did not feel

that the provision should be retained. Labor groups were concerned that

the confidentiality of information regarding employees' past alcohol

use would be breached by this provision. Many employers expressed

concern about the possibility of liability if they released the

results, even in response to a specific employee consent. One commenter

recommended that the FAA develop a standard consent form to be used for

release of alcohol misuse information from an employer to any third

party. Finally, some commenters stated that even if the use of prior

test results was authorized, they would not use the option. They saw

little utility in the option or expressed reservations about relying on

tests the quality of which the employer could not ensure.

Although the FAA recognizes that few employers may choose to use

the option of relying on an applicant's prior test results, the FAA has

elected to retain this option. The difficulties, if any, associated

with choosing this option would be one accepted voluntarily by the

employer who so chooses. Further, the FAA notes that even in the

absence of such a provision, a prospective employer could still seek

information regarding the past performance of an applicant. The FAA has

not adopted the recommendation to prepare a standard consent form for

use in this or any other disclosure situation. The rule does contain

specific language regarding the content of the consent; the FAA

expresses no preference as to the format of the document.

Finally, one commenter stated that the pre-employment testing

provision did not meet the requirements of the Act because it does not

require testing for use of alcohol in violation of law or Federal

regulation. While a strict reading of the Act may indicate that this

commenter is correct, upon review of the legislative history of the

Act, the FAA believes that the pre-employment testing provision in this

rule meets the intent of Congress.

Post-accident testing: The NPRM proposed that post-accident alcohol

testing would be essentially the same as in the antidrug rule. The

triggering event would be an aircraft accident (as specifically defined

in the rule) and the employees subject to testing would be the same--

covered employees whose performance of safety-sensitive functions

either contributed to an accident or cannot be completely discounted as

a contributing factor.

Although commenters generally supported the concept of post-

accident testing, some were concerned about the practical difficulties

associated with determining which employees to test and ensuring the

tests are performed in the very short and usually extremely hectic

period just following an accident. Some commenters specifically cited

the difficulty faced in determining if persons performing maintenance

may have contributed to the accident and problems associated with

reaching the remote locations in which aircraft accidents can occur.

These same concerns have arisen in the context of post-accident

drug testing. With respect to identifying employees to test, both rules

provide that the decisions must be based on the best available

information. Although the purpose of a post-accident alcohol test is to

identify individuals who should be removed from safety-sensitive

duties, the focus of a post-accident alcohol test is evidence of

alcohol use that may have affected the performance of safety-sensitive

functions that contributed to the accident. Test subjects should be

restricted to those for whom an alcohol test conducted after an

accident would be relevant to whether the individual possibly

contributed to the accident as a result of impermissibly using alcohol.

A number of commenters also questioned the requirement that

individuals who may be subject to post-accident testing must, with

limited exceptions, remain at the scene of the accident. These

commenters noted that an aircraft accident is always an extremely

traumatic event for the crewmembers involved and it would be unduly

harsh to prevent these crewmembers from leaving the immediate vicinity

of the accident.

The FAA accepts these concerns and has amended the provision in the

final rule to require the employee to remain readily available for

testing. This could include going to a crew lounge or airline office;

however, the employee would have to take appropriate steps to ensure

that if the employer determined that the employee must undergo post-

accident testing, the employer would be able to rapidly locate the

employee and have him or her tested. It would not, for example, be

acceptable for the employee to leave the scene of the accident at an

airport without informing the employer or a designated point of contact

of the employee's location--even if the employee remained at the

airport and technically ``available'' for testing.

The issues associated with remote site testing and conduct of tests

within the required timeframes are addressed in the common preamble. As

mentioned in that document, the FAA is not adopting the recommendation

that employers be allowed to substitute for FAA-mandated tests post-

accident tests conducted by law enforcement officers (LEOs) for law

enforcement purposes. The FAA already has in place a provision (14 CFR

91.17) under which crewmembers required to submit to alcohol tests by

LEOs may be required to provide the results of such tests to the FAA.

The possible conflicts between the employer's obligations and the

intent of post-accident tests under this rule and those of LEOs

outweigh any benefit that might be achieved from such a proposal. (As

discussed in the preamble to 49 CFR part 40, however, a LEO could serve

as an employer's BAT, but any tests would have to be conducted pursuant

to this rule and 49 CFR part 40.)

Random testing: As required by the Act, the rule includes random

alcohol testing for covered employees. The FAA has tailored the testing

to ensure that testing reasonably serves the FAA's interest in aviation

safety. Selection procedures like those in current FAA-approved

antidrug plans must be used to ensure randomness of testing.

The majority of comments received on random testing (other than

those asserting it was unconstitutional and/or unnecessary) cited the

particular difficulties associated with testing of crewmembers at or

near the time of the flight. These commenters noted that pre-flight

time for crewmembers, especially pilots, is very tightly scheduled,

with little built in flexibility. The commenters asserted that

employers would be faced with two choices: either arrange for all

crewmembers to report for duty early every day (because testing is

supposed to be both unannounced and random) to ensure that the

employees were available for testing if they were selected, or accept

that a certain number of flights might be delayed to accommodate the

additional time required to conduct testing. These commenters asked

that the FAA revise its rule to eliminate random testing or to permit

all random testing to occur after flights terminate.

While the FAA is extremely sensitive to the financial and

operational implications of this rule, it cannot adopt the

recommendation of these commenters. Random alcohol testing is required

by the Act. An effective random testing program must be designed to

detect and deter all of the prohibited conduct: pre-duty use of

alcohol, on-duty use of alcohol, and reporting for duty or remaining on

duty with an impermissible alcohol concentration. Because post-flight

testing (especially on long flights) would realistically only address

on-duty use of alcohol, it would not serve the overall purpose of

random alcohol testing. Similarly, if all testing were performed before

flights (as recommended by one commenter), the testing program would

have no deterrent effect for on-duty use of alcohol. The FAA intends to

work with the aviation industry to assist employers in implementing the

most cost-effective random alcohol testing programs possible.

The final rule retains the provision from the NPRM under which

employees selected for testing must proceed immediately to the testing

site. The rule also provides that an employee notified of his or her

selection while in the midst of performing a safety-sensitive function

would be directed to cease performing the function and proceed to the

testing site as soon as possible. Obviously, the FAA does not expect

any safety-sensitive employee to simply abandon his or her duties upon

notification of selection for random testing. Such an employee would

have to arrange for a replacement or otherwise cease performing the

safety-sensitive function as soon as it could be safely terminated.

The term ``immediately'' was used by the FAA intentionally. To the

extent possible, employees notified of selection for a random test

should take whatever steps are necessary to report to the testing site

without any delay or detour. The time between notification and testing

should be the absolute minimum necessary. The FAA recognizes that in

some situations employees will have to advise supervisors that the

employees must report for testing. Employers should ensure that they

have instituted procedures to accommodate this provision (for example,

the employer could arrange for the BAT to coordinate with designated

supervisors to approve the employees' departure to a testing site

before notifying the selected employees). The FAA expects that, with

limited exceptions, the time between notification and testing will be

no more than the requisite travel time to the testing site. If

notification and testing occur at an airport, this time should be a

matter of minutes.

Reasonable suspicion testing: Most of the commenters to the NPRM

supported the provision for reasonable suspicion alcohol testing,

although some labor organizations asserted that two supervisors should

be required. The FAA has not adopted this recommendation. The common

preamble discusses in detail the substantive revisions to this

provision.

Return to duty and follow-up testing: The specific requirements for

these types of tests are discussed in the common preamble.

Retesting after result of 0.02 or greater but less than 0.04: In

the NPRM, the FAA sought comment on whether the proposed ``retest or

return'' procedure gives employers enough flexibility (or too much) in

handling covered employees with low-level alcohol concentrations.

Because most commenters supported a single cut-off level, very few

addressed this provision. One commenter stated that if the bifurcated

cut-off system was adopted, all employees testing between 0.02 and

0.039 should be subject to another test before returning to work;

employers should not have the option of waiting until the next duty

period in lieu of a test.

The FAA has not adopted this recommendation. The primary intent of

this rule is to protect safety, and that goal is adequately

accomplished whether an employee tests below 0.02 or is made to wait at

least 8 hours before performing safety-sensitive functions. No

additional benefit would be achieved by instituting a return-to-duty

testing requirement for all employees who test in the 0.02 to 0.039

range. Further, the rule does not preclude, and would in fact require,

the employer to conduct a reasonable suspicion test if, when the

employee next reported for duty, the employee showed indicators of

alcohol misuse.

Recordkeeping and Reporting; Confidentiality

The requirements of the final rule with respect to recordkeeping

are largely unchanged from the NPRM. The records must be maintained in

a secure location and are releasable only as required under the rule or

with the express written consent of the employee. This rule requires

the release of employee-specific information to a subsequent employer

or other identified individual if the original employer receives a

written request from the employee. Contrary to the concerns expressed

by some commenters, the FAA believes that providing a regulatory

mandate for such release and removal of employer discretion will

minimize possible liability.

The rule also provides express authority to the FAA to conduct on-

site inspections of employer's alcohol programs, including the alcohol

testing process. As stated in the preamble to the NPRM, the FAA's

experience with compliance monitoring under the antidrug rule has

indicated that the individuals managing employers' programs are often

unaware of the FAA's authority to conduct such inspections. While the

Administrator or his designee has such authority even absent a

regulatory provision, the FAA determined that inclusion of such a

provision in this rule is necessary to ensure industry awareness of the

FAA's authority to monitor compliance.

Although the NPRM proposed reporting of statistical information by

all employers and other aviation entities with separate AMPPs, this

final rule has been revised to limit the number of entities required to

submit reports. The FAA similarly amended its antidrug rule, primarily

to relieve the burdens associated with these rules on small employers.

The formats to be used for reporting the statistical information are

published as exhibits following this rule. No other form, including

another DOT Agency's form is acceptable for submission to the FAA.

Consequences of Engaging in Misuse of Alcohol or Refusing To Submit to

Testing

The Omnibus Transportation Employee Testing Act of 1991 (the Act)

amended the Federal Aviation Act of 1958 (the FAAct) and the statutes

that apply to the Federal Railroad Administration, the Federal Highway

Administration, and the Federal Transit Administration. While these

amendments have much common language, especially in the area of

testing, they are not identical. Of greatest significance, the

amendments to the FAAct contain a section entitled ``Prohibition on

service,'' which does not appear in the amendments to the other DOT

agencies' statutes.

The ``Prohibition on Service'' section is found at new FAAct

section 614(b). Under subsection 614(b)(1), an individual may not

remain on duty in a safety-sensitive function if he or she has violated

the prohibitions on the use of alcohol. This legislative provision on

continued duty is reflected in each of the subsections of the FAA's

rule addressing prohibited conduct (see, e.g., 14 CFR 65.46a). Each

section states either directly or by implication that the employee may

not report for duty or remain on duty requiring the performance of

safety-sensitive functions while engaging in conduct prohibited by the

rule. These sections further provide that no employer who has actual

knowledge that an employee is in violation of the rule may permit the

employee to perform or continue to perform safety-sensitive functions.

Additionally, appendix J, section V, paragraph A expressly prohibits an

employee who has engaged in conduct prohibited by the rule from

performing safety-sensitive functions. This section, consistent with

the rules of the other DOT agencies, also requires removal from duty

for refusal to submit to a required alcohol test.

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 provide, at a minimum, for the identification of

employees in need of assistance in resolving problems with misuse of

alcohol. Further, the section gives the Administrator the authority to

determine the circumstances under which such employees would be

required to participate in any required rehabilitation. The provisions

recognize 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

appendix J, section V, paragraph E, ``Required evaluation.'' This

section requires that the employee be evaluated in accordance with

section VI of the appendix prior to performing covered functions. The

evaluation process is discussed further below.

The rule also contains a provision, analogous to the one in the

antidrug rule, under which employers are required to notify the Federal

Air Surgeon of any instance in which a holder of a part 67 medical

certificate violated the provisions of the rule or refused to submit to

a required alcohol test (with the exception of pre-employment tests).

The employer also has to forward to the FAA copies of the evaluations

conducted by the SAP. The Federal Air Surgeon will use this information

to determine whether further action should be taken with respect to the

medical certificate. No employee requiring an airman medical

certificate shall return to the performance of safety-sensitive

functions without the Federal Air Surgeon's recommendation.

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

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

use of alcohol after the date of the Omnibus Transportation Employee

Testing Act. This subsection is found only in the amendments to the

FAAct and has no parallel in the amendments to the other DOT agencies'

statutes. 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 impermissible use of alcohol. 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.

This bar applies under four circumstances. The first occurs if the

individual misuses alcohol ``while on duty.'' The remaining

prohibitions all relate to rehabilitation: the absolute bar to

returning to duty applies if an employee misuses alcohol after the date

of enactment, and

1. Had previously misused alcohol and undergone a program of

rehabilitation under the regulations promulgated pursuant to the Act;

2. Refused to undertake any required rehabilitation; or

3. Failed to complete any required rehabilitation.

This rule implements the prohibitions in two ways. First, appendix

J, section V, paragraph B, ``Permanent disqualification for service''

applies if an employee is determined to have violated the on-duty use

prohibition or if the employee twice violated other provisions of the

rule after its effective date. Under this section the employee is

permanently barred from performing the safety-sensitive functions he or

she performed before such a determination.

As proposed in the NPRM, this bar would have applied to the

performance of any safety-sensitive function. The FAA noted in the NPRM

that a narrow bar, limited only to the safety-sensitive functions the

individual previously performed, could lead to anomalous results.

Commenters differed in responding to the proposed bar, some favoring a

broad exclusion while another wanted the bar removed as inconsistent

with the Americans with Disabilities Act (ADA). The latter commenter

failed to note that the Act requires a permanent bar and that the

regulations implementing the ADA provide for the necessity of complying

with the regulations of another Federal agency (29 CFR 1630.15(e)).

However, the FAA has concluded that a bar limited to the statutory

requirement is more likely to be seen as clearly consistent with the

ADA and other legal constraints, and has thus adopted this change in

the final rule. It should be noted that employers retain any discretion

they may have under independent authority to preclude such employees

from performing other safety-sensitive functions. The FAA expects that

employers will exercise responsible judgment in deciding whether

employees not expressly barred from service will be permitted to

perform other safety-sensitive functions.

As addressed in the NPRM, the bar on two-time violators will apply

both to persons who had gone through rehabilitation and to those who,

after evaluation by a substance abuse professional (SAP), are

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

to need treatment and had an instance of recidivism would be

sanctioned, but an employee who did not need assistance but simply

chose to engage in misuse of alcohol would not be sanctioned.

A number of commenters objected to the FAA's proposal to apply the

permanent bar to individuals who engage in multiple instances of

alcohol misuse. They noted that recidivism is often a normal part of

the rehabilitative process. Given the Act's requirements, these

comments cannot be adopted. The Act requires that individuals complete

rehabilitation prior to returning to safety-sensitive functions.

Therefore, once an employee has been deemed by the SAP to have

completed rehabilitation and is returned to the performance of safety-

sensitive functions, the employee must conform his or her conduct to

the requirements of the rule.

The bar following a refusal or failure of rehabilitation is

implicitly implemented in this rule by the requirement that prior to

returning to duty performing safety-sensitive functions each employee

must be evaluated by an SAP to determine whether the employee properly

met the requirements for rehabilitation established during the initial

evaluation. An employee who does not meet the requirements, whether by

failure or refusal, will be precluded from returning to the performance

of safety-sensitive functions. Commenters supported the FAA's choice in

the NPRM not to propose a definite time period during which the

employee must comply. They agreed that the rule will thus allow for the

denial phase that most people go through when first confronted with

evidence of an alcohol problem.

Alcohol Misuse Information and Training

In the NPRM, the FAA specifically sought comment on whether the

rule should include alcohol awareness training for all employees.

Commenters split almost equally between two positions: Labor

organizations and employees favored employee training, and employers

stated that such training would be unnecessary and costly. The common

preamble addresses these issues in greater detail; however, it should

be noted that while the FAA is not requiring formal employee training,

the FAA did adopt the recommendation to provide more detailed written

materials to employees. Further, nothing in this rule precludes an

employer from providing training to its employees under the employer's

own authority.

Employee Referral, Evaluation, and Treatment

As was noted in the NPRM, the FAA recognized the sometimes

conflicting needs of employer flexibility and employee health. The FAA

did not propose to prescribe regulations with respect to specific types

of rehabilitation and maintains that position in the final rule. This

rule does include the process proposed in the NPRM under which each

covered employee who engages in alcohol misuse or who refuses to submit

to testing must be advised of all resources available to the employee.

It also requires that each such employee be evaluated by a SAP to

determine whether and what assistance the employee needed in resolving

problems associated with alcohol misuse.

Some commenters, primarily labor organizations and employees,

stated that the rule should include a mechanism to protect employees

from overzealous, biased, or unprofessional SAPs. These commenters

suggested that employees be entitled to obtain a second opinion from

another SAP, that the SAP evaluations be reviewed by a medical review

officer, or that the employee be permitted to choose the SAP. The FAA

has not adopted these suggestions. Each person authorized by this rule

to act as an SAP has obligations independent of this rule which require

him or her to perform the duties in this rule professional and ethical

manner. Aside from the financial restrictions discussed in the common

preamble, the FAA does not believe that any additional protection of

employees is necessary. The use of a second opinion system would be

especially difficult and problematic in a program such as this one

where, in the exercise of reasonable, good faith analysis of a case,

two SAPs could very possibly arrive at different conclusions on the

appropriate therapeutic intervention. As was the case in the NPRM,

however, the final rule provides that selection of the SAP should be

made in accordance with employer/employee agreements and employer

policies.

Employer Alcohol Misuse Prevention Program Plans; Certification

Statements

The FAA proposed in the NPRM to include a requirement that

employers submit detailed alcohol misuse prevention program (AMPP)

plans to the FAA for approval prior to implementation of a program

under the rule. Many commenters stated that the use of specific plans

would be unduly cumbersome in the context of an AMPP. These commenters

stated that unlike drug testing, in which a single laboratory is

generally used, it is likely that alcohol testing will be conducted

using a variety of breath testing devices. Additionally, since the SAPs

must personally evaluate each employee who violates the rule, large

companies will probably arrange to have many SAPs available wherever

they are necessary. These commenters requested that the FAA limit its

plan submission requirements to address these concerns.

The FAA agrees with these comments. Although the use of detailed,

preapproved plans was and remains beneficial in the context of the

antidrug rule, the FAA has chosen to minimize the requirements for the

final alcohol rule. Instead, the FAA will require submission of a

certification statement that will provide specified identifying

information and an agreement to comply with this rule. Like the plan

submission requirement, the certification statements will provide the

FAA with the ability to readily determine which companies are failing

or refusing to comply with the rule.

Commenters generally supported the FAA proposal to permit companies

whose employees perform covered services by contract to an employer to

establish independent alcohol misuse prevention programs. Under the

revised procedures in this rule, contractor companies are able to

submit certification statements directly to the FAA and may be

authorized to implement AMPPs for their own employees. An aspect of the

NPRM that has not changed is the requirement that each entity that

establishes an AMPP, whether a contractor company or an employer, must

maintain its program in accordance with the final rule. A contractor

company, for example, is required to maintain the confidentiality of

records pertaining to its employees and must disclose such records only

in accordance with the rule. The FAA has retained the ability to revoke

its authorization for any contractor company that fails to properly

implement its AMPP. Because employers are only able to use contractor

employees who are subject to an FAA-mandated program, potential

revocation of authorization to establish an AMPP provides a strong

incentive to contractor companies to properly implement their programs.

The FAA has also retained the provisions under which employers and

contractor companies may join consortia for purposes of complying with

the rule. A consortium certification statement must set forth the

aspects of the AMPP that the consortium intends to provide to aviation

employers.

Generally, the final rule provides that aviation entities must

submit the certification statements in duplicate. The FAA will annotate

receipt on one of the copies and return it to the submitter, after

which the submitter can implement its AMPP.

Phased Implementation

The NPRM included a proposed schedule for phased implementation of

the AMPP for the aviation industry. Most commenters that addressed the

schedule favored the FAA's proposal and this schedule has been

maintained in the final rule. For each class of employers, the rule

requires submission of a certification statement by a certain date and

implementation of the FAA-mandated AMPP approximately 6 months later.

One change was made in response to comments: As proposed, employers

would have had 8 months after their specified submission date to ensure

that contractor employees were subject to an approved program. Many

commenters did not think, given the complexity of the new requirements,

that they could both implement their own programs and monitor their

contractor companies' compliance. The FAA has therefore revised the

timetable to require employers to ensure compliance by contractors 12

months after the date on which the employers' must submit their

certification statements.

Under the final rule, part 121 and large part 135 certificate

holders (more than 50 covered employees) and air traffic control

facilities are required to comply with the rule first, with

implementation scheduled to occur on January 1, 1995. Part 135

certificate holders with 11 to 50 covered employees are in the second

phase of implementation (June 1, 1995), and small part 135 certificate

holders and Sec. 135.1(c) operators in the last phase (January 1,

1996).

Employees Located Outside the U.S.

The NPRM proposed that the rule would apply to direct employees of

U.S. air carriers who perform safety-sensitive functions outside the

U.S. after January 2, 1995. The NPRM also proposed that the FAA would

not permit testing of such employees, however, if the FAA received

written documentation from an employer demonstrating that such testing

would be inconsistent with the laws and regulations of the country in

which the testing would occur. Upon review of the comments submitted to

this docket and to FAA Docket Number 27066 (which addressed possible

testing requirements for foreign air carriers), the FAA has determined

that it will not require testing of any employees located outside the

territory of the United States.

To ensure proper selection for random testing, an employer is

required to remove from the random testing pool any employee assigned

to perform covered functions solely outside the territory of the United

States, since such an employee would not be 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. Although the FAA is

cognizant of concerns about safety and economic parity that would be

raised by such an exclusion, the FAA has determined that

extraterritorial application of this rule, with its significant

logistical issues and possible conflicts with local laws, should not be

pursued.

Paperwork Reduction Act Approval

Appendix J to part 121 requires each employer to submit to the FAA:

An alcohol misuse prevention program certification statement;

notification to the FAA of alcohol misuse by holders of airman medical

certificates issued under 14 CFR part 67; notification to the FAA of

refusals to submit to alcohol testing by holders of airman certificates

issued under 14 CFR parts 61, 63, and 65; and annual statistical

reports summarizing data on the employer's alcohol misuse prevention

program. To provide the notifications and reports to the FAA, employers

are required to maintain records related to each covered employee,

including test results. In accordance with the Paperwork Reduction Act

of 1980 (Pub. L. 96-511), the recordkeeping and reporting requirements

in this final rule have been submitted to the Office of Management and

Budget (OMB) for approval. Information collection requirements are not

effective until the paperwork reduction act package has been received.

Economic Summary

A full regulatory evaluation has been prepared by the FAA and

placed in the docket that provides detailed estimates of the economic

consequences of this regulatory action. The FAA certifies that the

annual costs to be imposed on small operators will not exceed the

thresholds for significant impact and that this rule will not have a

significant economic impact on a substantial number of small entities.

International Trade Impact Analysis

The FAA finds that this rule affects all part 121 and part 135 air

carriers. 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.

Federalism Implications

This rule does 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 rule does not have sufficient

federalism implications to warrant preparation of a Federalism

Assessment.

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 an increase

in costs for consumers, industry, or Federal, State, or local agencies.

The FAA has determined, however, that this rule involves issues of

substantial interest to the public. Therefore, the FAA has determined

that the rule is significant under the Executive Order 12866 and the

Regulatory Policies and Procedures of the Department of Transportation

(44 FR 11034; February 2, 1979).

A Regulatory Impact Analysis of the rule has been placed in the

regulatory docket. A copy may be obtained by contacting the office

identified under ``FOR FURTHER INFORMATION CONTACT.''

Other Regulatory Matters

The FAA has received three petitions for rulemaking that address

issues concerning alcohol use in aviation. The docket numbers for those

petitions are 24706, 26233, and 26872. Because the issues raised in the

petitions have been resolved in this final rule, the FAA has closed

these actions.

A number of commenters also asked that the FAA amend 14 CFR

91.13(a) to provide that crewmembers would only be held liable for the

actions of a fellow crewmember if they have actual knowledge that the

crewmember was impaired by drugs or alcohol. The comments cited the

case of Johnson v. National Transportation Safety Board, 979 F.2d 618

(7th Cir. 1992), in which a pilot lost his airman certificate after his

copilot was determined to have been intoxicated. Revision of this

provision was neither explicitly nor implicitly contemplated in the

NPRM, and the FAA finds that the issue is outside the scope of this

rulemaking.

List of Subjects

14 CFR Part 61

Air safety, Air transportation, Aircraft, Aircraft pilots, Airmen,

Alcohol, Alcoholism, Aviation safety, Safety, Transportation.

14 CFR Part 63

Air safety, Air transportation, Aircraft, Airmen, Alcohol,

Alcoholism, Aviation safety, Safety, Transportation.

14 CFR Part 65

Air safety, Air traffic, Air transportation, Aircraft, Airmen,

Alcohol, Alcoholism, Aviation safety, Safety, Transportation.

14 CFR Part 121

Air carriers, Air transportation, Aircraft, Aircraft pilots,

Airmen, Airplanes, Alcohol, Alcoholism, Aviation safety, Pilots,

Safety, Transportation.

14 CFR Part 135

Air carriers, Air taxi, Air transportation, Aircraft, Airmen,

Airplanes, Alcohol, Alcoholism, Aviation safety, Pilots, Safety,

Transportation.

In consideration of the foregoing, the Federal Aviation

Administration amends 14 CFR parts 61, 63, 65, 121, and 135 as follows:

PART 61--CERTIFICATION: PILOTS AND FLIGHT INSTRUCTORS

1. The authority citation for part 61 is revised 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 61.14 is revised to read as follows:

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

(a) This section applies to an employee who performs a function

listed in appendix I or appendix J to part 121 of this chapter directly

or by contract for a part 121 certificate holder, a part 135

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

chapter.

(b) Refusal by the holder of a certificate issued under this part

to take a drug test required under the provisions of appendix I to part

121 or an alcohol test required under the provisions of appendix J to

part 121 is grounds for--

(1) Denial of an application for any certificate or rating issued

under this part for a period of up to 1 year after the date of such

refusal; and

(2) Suspension or revocation of any certificate or rating issued

under this part.

PART 63--CERTIFICATION: FLIGHT CREW-MEMBERS OTHER THAN PILOTS

3. The authority citation for part 63 is revised to read as

follows:

Authority: 49 U.S.C. 1354(a), 1355, 1421, 1422, 1427, 1429, and

1430 (revised, Pub. L. 102-143, October 28, 1991); 49 U.S.C. 106(g)

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

4. Section 63.12b is revised to read as follows:

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

(a) This section applies to an employee who performs a function

listed in appendix I or appendix J to part 121 of this chapter directly

or by contract for a part 121 certificate holder, a part 135

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

chapter.

(b) Refusal by the holder of a certificate issued under this part

to take a drug test required under the provisions of appendix I to part

121 or an alcohol test required under the provisions of appendix J to

part 121 is grounds for--

(1) Denial of an application for any certificate or rating issued

under this part for a period of up to 1 year after the date of such

refusal; and

(2) Suspension or revocation of any certificate or rating issued

under this part.

PART 65--CERTIFICATION: AIRMEN OTHER THAN FLIGHT CREWMEMBERS

5. The authority citation for part 65 is revised 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).

6. Section 65.23 is revised to read as follows:

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

(a) General. This section applies to an employee who performs a

function listed in appendix I or appendix J to part 121 of this chapter

directly or by contract for 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

the U.S. military.

(b) Refusal by the holder of a certificate issued under this part

to take a drug test required under the provisions of appendix I to part

121 or an alcohol test required under the provisions of appendix J to

part 121 is grounds for--

(1) Denial of an application for any certificate or rating issued

under this part for a period of up to 1 year after the date of such

refusal; and

(2) Suspension or revocation of any certificate or rating issued

under this part.

7. Section 65.46a is added to read as follows:

Sec. 65.46a Misuse of alcohol.

(a) This section applies to 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 U.S. military

(covered employees).

(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.

(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 appendix J to part

121 of this chapter, 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. No covered

employee shall refuse to submit to a post-accident, random, reasonable

suspicion, or follow-up alcohol test required under appendix J to part

121 of this chapter. No employer shall permit an employee who refuses

to submit to such a test to perform or continue to perform safety-

sensitive functions.

8. Section 65.46b is added to read as follows:

Sec. 65.46b Testing for alcohol.

(a) Each air traffic control facility not operated by the FAA or

the U.S. military (hereinafter employer) must establish an alcohol

misuse prevention program in accordance with the provisions of appendix

J to part 121 of this chapter.

(b) No employer shall use any person who meets the definition of

covered employee in appendix J to part 121 to perform a safety-

sensitive function listed in that appendix unless such person is

subject to testing for alcohol misuse in accordance with the provisions

of appendix J.

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

SUPPLEMENTAL AIR CARRIERS AND COMMERCIAL OPERATORS OF LARGE

AIRCRAFT

9. The authority citation for part 121 is revised 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).

10. Section 121.458 is added to subpart O to read as follows:

Sec. 121.458 Misuse of alcohol.

(a) General. This section applies to employees who perform a

function listed in appendix J to this part for a certificate holder

(covered employees). For the purpose of this section, a person who

meets the definition of covered employee in appendix J is considered to

be performing the function for the certificate holder.

(b) Alcohol concentration. No covered employee shall report for

duty or remain on duty requiring the performance of safety-sensitive

functions while having an alcohol concentration of 0.04 or greater. No

certificate holder having actual knowledge that an employee has an

alcohol concentration of 0.04 or greater shall permit the employee to

perform or continue to perform safety-sensitive functions.

(c) On-duty use. No covered employee shall use alcohol while

performing safety-sensitive functions. No certificate holder having

actual knowledge that a covered employee is using alcohol while

performing safety-sensitive functions shall permit the employee to

perform or continue to perform safety-sensitive functions.

(d) Pre-duty use. (1) No covered employee shall perform flight

crewmember or flight attendant duties within 8 hours after using

alcohol. No certificate holder having actual knowledge that such an

employee has used alcohol within 8 hours shall permit the employee to

perform or continue to perform the specified duties.

(2) No covered employee shall perform safety-sensitive duties other

than those specified in paragraph (d)(1) of this section within 4 hours

after using alcohol. No certificate holder having actual knowledge that

such an employee has used alcohol within 4 hours shall permit the

employee to perform or 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 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 appendix J 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. No covered

employee shall refuse to submit to a post-accident, random, reasonable

suspicion, or follow-up alcohol test required under appendix J to this

part. No certificate holder shall permit an employee who refuses to

submit to such a test to perform or continue to perform safety-

sensitive functions.

11. Section 121.459 is added to subpart O to read as follows:

Sec. 121.459 Testing for alcohol.

(a) Each certificate holder must establish an alcohol misuse

prevention program in accordance with the provisions of appendix J to

this part.

(b) No certificate holder shall use any person who meets the

definition of covered employee in appendix J to this part to perform a

safety-sensitive function listed in that appendix unless such person is

subject to testing for alcohol misuse in accordance with the provisions

of appendix J.

12. Appendix J to part 121 is added to read as follows:

Appendix J to Part 121--Alcohol Misuse Prevention Program

This appendix contains the standards and components that must be

included in an alcohol misuse prevention program required by this

chapter.

I. General.

A. Purpose. The purpose of this appendix is to establish

programs designed to help prevent accidents and injuries resulting

from the misuse of alcohol by employees who perform safety-sensitive

functions in aviation.

B. Alcohol testing procedures. Each employer shall ensure that

all alcohol testing conducted pursuant to this appendix complies

with the procedures set forth in 49 CFR part 40. The provisions of

49 CFR part 40 that address alcohol testing are made applicable to

employers by this appendix.

C. Definitions.

As used in this appendix--

Accident means an occurrence associated with the operation of an

aircraft which takes place between the time any person boards the

aircraft with the intention of flight and the time all such persons

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

injury or in which the aircraft receives substantial damage.

Administrator means the Administrator of the Federal Aviation

Administration or his or her designated representative.

Alcohol means the intoxicating agent in beverage alcohol, ethyl

alcohol, or other low molecular weight alcohols, including methyl or

isopropyl alcohol.

Alcohol concentration (or content) means the alcohol in a volume

of breath expressed in terms of grams of alcohol per 210 liters of

breath as indicated by an evidential breath test under this

appendix.

Alcohol use means the consumption of any beverage, mixture, or

preparation, including any medication, containing alcohol.

Confirmation test means a second test, following a screening

test with a result 0.02 or greater, that provides quantitative data

of alcohol concentration.

Consortium means an entity, including a group or association of

employers or contractors, that provides alcohol testing as required

by this appendix and that acts on behalf of such employers or

contractors, provided that it has submitted an alcohol misuse

prevention program certification statement to the FAA in accordance

with this appendix.

Contractor company means a company that has employees who

perform safety-sensitive functions by contract for an employer.

Covered employee means a person who performs, either directly or

by contract, a safety-sensitive function listed in section II of

this appendix for an employer (as defined below). For purposes of

pre-employment testing only, the term ``covered employee'' includes

a person applying to perform a safety-sensitive function.

DOT agency means an agency (or ``operating administration'') of

the United States Department of Transportation administering

regulations requiring alcohol testing (14 CFR parts 65, 121, and

135; 49 CFR parts 199, 219, and 382) in accordance with 49 CFR part

40.

Employer means a part 121 certificate holder; a part 135

certificate holder; an air traffic control facility not operated by

the FAA or by or under contract to the U.S. military; and an

operator as defined in 14 CFR 135.1(c).

Performing (a safety-sensitive function): an employee is

considered to be performing a safety-sensitive function during any

period in which he or she is actually performing, ready to perform,

or immediately available to perform such functions.

Refuse to submit (to an alcohol test) means that a covered

employee fails to provide adequate breath for testing without a

valid medical explanation after he or she has received notice of the

requirement to be tested in accordance with this appendix, or

engages in conduct that clearly obstructs the testing process.

Safety-sensitive function means a function listed in section II

of this appendix.

Screening test means an analytical procedure to determine

whether a covered employee may have a prohibited concentration of

alcohol in his or her system.

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 an

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 alcohol-related disorders.

Violation rate means the number of covered employees (as

reported under section IV of this appendix) found during random

tests given under this appendix to have an alcohol concentration of

0.04 or greater plus the number of employees who refused a random

test required by this appendix, divided by the total reported number

of employees in the industry given random alcohol tests under this

appendix plus the total reported number of employees in the industry

who refuse a random test required by this appendix.

D. Preemption of State and local laws.

1. Except as provided in subparagraph 2 of this paragraph, these

regulations preempt any State or local law, rule, regulation, or

order to the extent that:

(a) Compliance with both the State or local requirement and this

appendix is not possible; or

(b) Compliance with the State or local requirement is an

obstacle to the accomplishment and execution of any requirement in

this appendix.

2. The alcohol misuse requirements of this title shall not be

construed to preempt provisions of State criminal law that impose

sanctions for reckless conduct leading to actual loss of life,

injury, or damage to property, whether the provisions apply

specifically to transportation employees or employers or to the

general public.

E. Other requirements imposed by employers.

Except as expressly provided in these alcohol misuse

requirements, nothing in these requirements shall be construed to

affect the authority of employers, or the rights of employees, with

respect to the use or possession of alcohol, including any authority

and rights with respect to alcohol testing and rehabilitation.

F. Requirement for notice.

Before performing an alcohol test under this appendix, each

employer shall notify a covered employee that the alcohol test is

required by this appendix. No employer shall falsely represent that

a test is administered under this appendix.

II. Covered Employees

Each employee who performs a function listed in this section

directly or by contract for an employer as defined in this appendix

must be subject to alcohol testing under an FAA-approved alcohol

misuse prevention program implemented in accordance with this

appendix. The covered safety-sensitive functions are:

1. Flight crewmember duties.

2. Flight attendant duties.

3. Flight instruction duties.

4. Aircraft dispatcher duties.

5. Aircraft maintenance or preventive maintenance duties.

6. Ground security coordinator duties.

7. Aviation screening duties.

8. Air traffic control duties.

III. Tests Required

A. Pre-employment

1. Prior to the first time a covered employee performs safety-

sensitive functions for an employer, the employee shall undergo

testing for alcohol. No employer shall allow a covered employee to

perform safety-sensitive functions unless the employee has been

administered an alcohol test with a result indicating an alcohol

concentration less than 0.04. If a pre-employment test result under

this paragraph indicates an alcohol concentration of 0.02 or greater

but less than 0.04, the provisions of paragraph F of section V of

this appendix apply.

2. An employer is not required to administer an alcohol test as

required by this paragraph if:

(a) The employee has undergone an alcohol test required by this

appendix or the alcohol misuse rule of another DOT agency under 49

CFR part 40 within the previous 6 months, with a result indicating

an alcohol concentration less than 0.04; and

(b) The employer ensures that no prior employer of the covered

employee of whom the employer has knowledge has records of a

violation of Sec. 65.46a, 121.458, or 135.253 of this chapter or the

alcohol misuse rule of another DOT agency within the previous 6

months.

B. Post-accident

1. As soon as practicable following an accident, each employer

shall test each surviving covered employee for alcohol if that

employee's performance of a safety-sensitive function either

contributed to the accident or cannot be completely discounted as a

contributing factor to the accident. The decision not to administer

a test under this section shall be based on the employer's

determination, using the best available information at the time of

the determination, that the covered employee's performance could not

have contributed to the accident.

2. If a test required by this section is not administered within

2 hours following the accident, the employer shall prepare and

maintain on file a record stating the reasons the test was not

promptly administered. If a test required by this section is not

administered within 8 hours following the accident, the employer

shall cease attempts to administer an alcohol test and shall prepare

and maintain the same record. Records shall be submitted to the FAA

upon request of the Administrator or his or her designee.

3. A covered employee who is subject to post-accident testing

shall remain readily available for such testing or may be deemed by

the employer to have refused to submit to testing. Nothing in this

section shall be construed to require the delay of necessary medical

attention for injured people following an accident or to prohibit a

covered employee from leaving the scene of an accident for the

period necessary to obtain assistance in responding to the accident

or to obtain necessary emergency medical care.

C. Random testing

1. Except as provided in paragraphs 2-4 of this section, the

minimum annual percentage rate for random alcohol testing will be 25

percent of the covered employees.

2. The Administrator's decision to increase or decrease the

minimum annual percentage rate for random alcohol testing is based

on the violation rate for the entire industry. All information used

for this determination is drawn from alcohol MIS reports required by

this appendix. In order to ensure reliability of the data, the

Administrator considers the quality and completeness of the reported

data, may obtain additional information or reports from employers,

and may make appropriate modifications in calculating the industry

violation rate. Each year, the Administrator will publish in the

Federal Register the minimum annual percentage rate for random

alcohol testing of covered employees. The new minimum annual

percentage rate for random alcohol testing will be applicable

starting January 1 of the calendar year following publication.

3. (a) When the minimum annual percentage rate for random

alcohol testing is 25 percent or more, the Administrator may lower

this rate to 10 percent of all covered employees if the

Administrator determines that the data received under the reporting

requirements of this appendix for two consecutive calendar years

indicate that the violation rate is less than 0.5 percent.

(b) When the minimum annual percentage rate for random alcohol

testing is 50 percent, the Administrator may lower this rate to 25

percent of all covered employees if the Administrator determines

that the data received under the reporting requirements of this

appendix for two consecutive calendar years indicate that the

violation rate is less than 1.0 percent but equal to or greater than

0.5 percent.

4. (a) When the minimum annual percentage rate for random

alcohol testing is 10 percent, and the data received under the

reporting requirements of this appendix for that calendar year

indicate that the violation rate is equal to or greater than 0.5

percent but less than 1.0 percent, the Administrator will increase

the minimum annual percentage rate for random alcohol testing to 25

percent of all covered employees.

(b) When the minimum annual percentage rate for random alcohol

testing is 25 percent or less, and the data received under the

reporting requirements of this appendix for that calendar year

indicate that the violation rate is equal to or greater than 1.0

percent, the Administrator will increase the minimum annual

percentage rate for random alcohol testing to 50 percent of all

covered employees.

5. The selection of employees for random alcohol testing shall

be made by a scientifically valid method, such as a random-number

table or a computer-based random number generator that is matched

with employees' Social Security numbers, payroll identification

numbers, or other comparable identifying numbers. Under the

selection process used, each covered employee shall have an equal

chance of being tested each time selections are made.

6. The employer shall randomly select a sufficient number of

covered employees for testing during each calendar year to equal an

annual rate not less than the minimum annual percentage rate for

random alcohol testing determined by the Administrator. If the

employer conducts random testing through a consortium, the number of

employees to be tested may be calculated for each individual

employer or may be based on the total number of covered employees

who are subject to random alcohol testing at the same minimum annual

percentage rate under this appendix or any DOT alcohol testing rule.

7. Each employer shall ensure that random alcohol tests

conducted under this appendix are unannounced and that the dates for

administering random tests are spread reasonably throughout the

calendar year.

8. Each employer shall require that each covered employee who is

notified of selection for random testing proceeds to the testing

site immediately; provided, however, that if the employee is

performing a safety-sensitive function at the time of the

notification, the employer shall instead ensure that the employee

ceases to perform the safety-sensitive function and proceeds to the

testing site as soon as possible.

9. A covered employee shall only be randomly tested while the

employee is performing safety-sensitive functions; just before the

employee is to perform safety-sensitive functions; or just after the

employee has ceased performing such functions.

10. If a given covered employee is subject to random alcohol

testing under the alcohol testing rules of more than one DOT agency,

the employee shall be subject to random alcohol testing at the

percentage rate established for the calendar year by the DOT agency

regulating more than 50 percent of the employee's functions.

11. If an employer is required to conduct random alcohol testing

under the alcohol testing rules of more than one DOT agency, the

employer may--

(a) Establish separate pools for random selection, with each

pool containing the covered employees who are subject to testing at

the same required rate; or

(b) Randomly select such employees for testing at the highest

percentage rate established for the calendar year by any DOT agency

to which the employer is subject.

D. Reasonable Suspicion Testing

1. An employer shall require a covered employee to submit to an

alcohol test when the employer has reasonable suspicion to believe

that the employee has violated the alcohol misuse prohibitions in

Sec. 65.46a, 121.458, or 135.253 of this chapter.

2. The employer's determination that reasonable suspicion exists

to require the covered employee to undergo an alcohol test shall be

based on specific, contemporaneous, articulable observations

concerning the appearance, behavior, speech or body odors of the

employee. The required observations shall be made by a supervisor

who is trained in detecting the symptoms of alcohol misuse. The

supervisor who makes the determination that reasonable suspicion

exists shall not conduct the breath alcohol test on that employee.

3. Alcohol testing is authorized by this section only if the

observations required by paragraph 2 are made during, just

preceding, or just after the period of the work day that the covered

employee is required to be in compliance with this rule. An employee

may be directed by the employer to undergo reasonable suspicion

testing for alcohol only while the employee is performing safety-

sensitive functions; just before the employee is to perform safety-

sensitive functions; or just after the employee has ceased

performing such functions.

4. (a) If a test required by this section is not administered

within 2 hours following the determination made under paragraph 2 of

this section, the employer shall prepare and maintain on file a

record stating the reasons the test was not promptly administered.

If a test required by this section is not administered within 8

hours following the determination made under paragraph 2 of this

section, the employer shall cease attempts to administer an alcohol

test and shall state in the record the reasons for not administering

the test.

(b) Notwithstanding the absence of a reasonable suspicion

alcohol test under this section, no covered employee shall report

for duty or remain on duty requiring the performance of safety-

sensitive functions while the employee is under the influence of or

impaired by alcohol, as shown by the behavioral, speech, or

performance indicators of alcohol misuse, nor shall an employer

permit the covered employee to perform or continue to perform

safety-sensitive functions until:

(1) An alcohol test is administered and the employee's alcohol

concentration measures less than 0.02; or

(2) The start of the employee's next regularly scheduled duty

period, but not less than 8 hours following the determination made

under paragraph 2 of this section that there is reasonable suspicion

that the employee has violated the alcohol misuse provisions in

Sec. 65.46a, 121.458, or 135.253 of this chapter.

(c) Except as provided in paragraph 4(b), no employer shall take

any action under this appendix against a covered employee based

solely on the employee's behavior and appearance in the absence of

an alcohol test. This does not prohibit an employer with authority

independent of this appendix from taking any action otherwise

consistent with law.

E. Return to Duty Testing

Each employer shall ensure that before a covered employee

returns to duty requiring the performance of a safety-sensitive

function after engaging in conduct prohibited in Sec. 65.46a,

121.458, or 135.253 of this chapter, the employee shall undergo a

return to duty alcohol test with a result indicating an alcohol

concentration of less than 0.02.

F. Follow-up Testing

Following a determination under section VI, paragraph C.2 of

this appendix that a covered employee is in need of assistance in

resolving problems associated with alcohol misuse, each employer

shall ensure that the employee is subject to unannounced follow-up

alcohol testing as directed by a substance abuse professional in

accordance with the provisions of section VI, paragraph C.3(b)(2) of

this appendix. A covered employee shall be tested under this

paragraph only while the employee is performing safety-sensitive

functions; just before the employee is to perform safety-sensitive

functions; or just after the employee has ceased performing such

functions.

G. Retesting of Covered Employees With an Alcohol Concentration of

0.02 or Greater but Less Than 0.04

Each employer shall retest a covered employee to ensure

compliance with the provisions of section V, paragraph F of this

appendix, if the employer chooses to permit the employee to perform

a safety-sensitive function within 8 hours following the

administration of an alcohol test indicating an alcohol

concentration of 0.02 or greater but less than 0.04.

IV. Handling of Test Results, Record Retention, and Confidentiality

A. Retention of Records

1. General Requirement. Each employer shall maintain records of

its alcohol misuse prevention program as provided in this section.

The records shall be maintained in a secure location with controlled

access.

2. Period of Retention. Each employer shall maintain the records

in accordance with the following schedule:

(a) Five years. Records of employee alcohol test results with

results indicating an alcohol concentration of 0.02 or greater,

documentation of refusals to take required alcohol tests,

calibration documentation, employee evaluations and referrals, and

copies of any annual reports submitted to the FAA under this

appendix shall be maintained for a minimum of 5 years.

(b) Two years. Records related to the collection process (except

calibration of evidential breath testing devices) and training shall

be maintained for a minimum of 2 years.

(c) One year. Records of all test results below 0.02 shall be

maintained for a minimum of 1 year.

3. Types of Records. The following specific records shall be

maintained.

(a) Records related to the collection process:

(1) Collection logbooks, if used.

(2) Documents relating to the random selection process.

(3) Calibration documentation for evidential breath testing

devices.

(4) Documentation of breath alcohol technician training.

(5) Documents generated in connection with decisions to

administer reasonable suspicion alcohol tests.

(6) Documents generated in connection with decisions on post-

accident tests.

(7) Documents verifying existence of a medical explanation of

the inability of a covered employee to provide adequate breath for

testing.

(b) Records related to test results:

(1) The employer's copy of the alcohol test form, including the

results of the test;

(2) Documents related to the refusal of any covered employee to

submit to an alcohol test required by this appendix.

(3) Documents presented by a covered employee to dispute the

result of an alcohol test administered under this appendix.

(c) Records related to other violations of Secs. 65.46a,

121.248, or 135.253 of this chapter.

(d) Records related to evaluations:

(1) Records pertaining to a determination by a substance abuse

professional concerning a covered employee's need for assistance.

(2) Records concerning a covered employee's compliance with the

recommendations of the substance abuse professional.

(3) Records of notifications to the Federal Air Surgeon of

violations of the alcohol misuse prohibitions in this chapter by

covered employees who hold medical certificates issued under part 67

of this chapter.

(e) Records related to education and training:

(1) Materials on alcohol misuse awareness, including a copy of

the employer's policy on alcohol misuse.

(2) Documentation of compliance with the requirements of section

VI, paragraph A of this appendix.

(3) 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.

(4) Certification that any training conducted under this

appendix complies with the requirements for such training.

B. Reporting of Results in a Management Information System

1. Annual reports summarizing the results of alcohol misuse

prevention programs shall be submitted to the FAA in the form and

manner prescribed by the Administrator by March 15 of each year

covering the previous calendar year (January 1 through December 31)

in accordance with the provisions below.

(a) Each part 121 certificate holder shall submit an annual

report each year.

(b) Each entity conducting an alcohol misuse prevention program

under the provisions of this appendix, other than a part 121

certificate holder, that has 50 or more covered employees on January

1 of any calendar year shall submit an annual report to the FAA for

that calendar year.

(c) The Administrator reserves the right to require employers

not otherwise required to submit annual reports to 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. Each employer that is subject to more than one DOT agency

alcohol rule shall identify each employee covered by the regulations

of more than one DOT agency. The identification will be by the total

number and category of covered function. Prior to conducting any

alcohol test on a covered employee subject to the rules of more than

one DOT agency, the employer shall determine which DOT agency rule

or rules authorizes or requires the test. The test result

information shall be directed to the appropriate DOT agency or

agencies.

3. Each employer shall ensure the accuracy and timeliness of

each report submitted.

4. Each report shall be submitted in the form and manner

prescribed by the Administrator.

5. Each report shall be signed by the employer's alcohol misuse

prevention program manager or other designated representative.

6. Each report that contains information on an alcohol screening

test result of 0.02 or greater or a violation of the alcohol misuse

provisions of Sec. 65.46a, 121.458, or 135.253 of this chapter shall

include the following informational elements:

(a) Number of covered employees by employee category.

(b) Number of covered employees in each category subject to

alcohol testing under the alcohol misuse rule of another DOT agency,

identified by each agency.

(c)(1) Number of screening tests by type of test and employee

category.

(2) Number of confirmation tests, by type of test and employee

category.

(d) Number of confirmation alcohol tests indicating an alcohol

concentration of 0.02 or greater but less than 0.04 by type of test

and employee category.

(e) Number of confirmation alcohol tests indicating an alcohol

concentration of 0.04 or greater, by type of test and employee

category.

(f) Number of persons denied a position as a covered employee

following a pre-employment alcohol test indicating an alcohol

concentration of 0.04 or greater.

(g) Number of covered employees with a confirmation alcohol test

indicating an alcohol concentration of 0.04 or greater who were

returned to duty in covered positions (having complied with the

recommendations of a substance abuse professional as described in

section V, paragraph E, and section VI, paragraph C of this

appendix).

(h) Number of covered employees who were administered alcohol

and drug tests at the same time, with both a positive drug test

result and an alcohol test result indicating an alcohol

concentration of 0.04 or greater.

(i) Number of covered employees who were found to have violated

other alcohol misuse provisions of Secs. 65.46a, 121.458, or 135.253

of this chapter, and the action taken in response to the violation.

(j) Number of covered employees who refused to submit to an

alcohol test required under this appendix, the number of such

refusals that were for random tests, and the action taken in

response to each refusal.

(k) Number of supervisors who have received required training

during the reporting period in determining the existence of

reasonable suspicion of alcohol misuse.

7. Each report with no screening test results of 0.02 or greater

or violations of the alcohol misuse provisions of Secs. 65.46a,

121.458, or 135.253 of this chapter shall include the following

informational elements. (This report may only be submitted if the

program results meet these criteria.)

(a) Number of covered employees by employee category.

(b) Number of covered employees in each category subject to

alcohol testing under the alcohol misuse rule of another DOT agency,

identified by each agency.

(c) Number of screening tests by type of test and employee

category.

(d) Number of covered employees who engaged in alcohol misuse

who were returned to duty in covered positions (having complied with

the recommendations of a substance abuse professional as described

in section V, paragraph E, and section VI, paragraph C of this

appendix).

(e) Number of covered employees who refused to submit to an

alcohol test required under this appendix, and the action taken in

response to each refusal.

(f) Number of supervisors who have received required training

during the reporting period in determining the existence of

reasonable suspicion of alcohol misuse.

8. 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.

C. Access to Records and Facilities

1. Except as required by law or expressly authorized or required

in this appendix, no employer shall release covered employee

information that is contained in records required to be maintained

under this appendix.

2. A covered employee is entitled, upon written request, to

obtain copies of any records pertaining to the employee's use of

alcohol, including any records pertaining to his or her alcohol

tests. 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 make available copies of all results of

alcohol testing conducted under this appendix and any other

information pertaining to the employer's alcohol misuse prevention

program, when requested by the Secretary of Transportation or any

DOT agency with regulatory authority over the employer or covered

employee.

4. When requested by the National Transportation Safety Board as

part of an accident investigation, each employer shall disclose

information related to the employer's administration of a post-

accident alcohol test administered following the accident under

investigation.

5. Records shall be made available to a subsequent employer upon

receipt of written request from the covered employee. Disclosure by

the subsequent employer is permitted only as expressly authorized by

the terms of the employee's request.

6. An employer may disclose information required to be

maintained under this appendix pertaining to a covered employee to

the employee or to the decisionmaker in a lawsuit, grievance, or

other proceeding initiated by or on behalf of the individual and

arising from the results of an alcohol test administered under this

appendix or from the employer's determination that the employee

engaged in conduct prohibited under Secs. 65.46a, 121.458, or

135.253 of this chapter (including, but not limited to, a worker's

compensation, unemployment compensation, or other proceeding

relating to a benefit sought by the employee).

7. An employer shall release information regarding a covered

employee's records as directed by the specific, written consent of

the employee authorizing release of the information to an identified

person. Release of such information by the person receiving the

information is permitted only in accordance with the terms of the

employee's consent.

8. Each employer shall permit access to all facilities utilized

in complying with the requirements of this appendix to the Secretary

of Transportation or any DOT agency with regulatory authority over

the employer or any of its covered employees.

V. Consequences for Employees Engaging in Alcohol-Related Conduct

A. Removal From Safety-sensitive Function

1. Except as provided in section VI of this appendix, no covered

employee shall perform safety-sensitive functions if the employee

has engaged in conduct prohibited by Secs. 65.46a, 121.458, or

135.253 of this chapter or an alcohol misuse rule of another DOT

agency.

2. No employer shall permit any covered employee to perform

safety-sensitive functions if the employer has determined that the

employee has violated this paragraph.

B. Permanent Disqualification From Service

An employee who violates Secs. 65.46a(c), 121.458(c), or

135.253(c) or who violates other alcohol misuse provisions of

Secs. 65.46a, 121.458, or 135.253 of this chapter and had previously

engaged in conduct that violated the provisions of Secs. 65.46a,

121.458, or 135.253 of this chapter after March 18, 1994 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 violated the provisions of Secs. 65.46a, 121.458, or 135.253 of

this chapter shall notify the Federal Air Surgeon within 2 working

days.

2. Each such employer shall forward to the Federal Air Surgeon a

copy of the report of any evaluation performed under the provisions

of section VI of this appendix within 2 working days of the

employer's receipt of the report.

3. All documents shall be sent to the Federal Air Surgeon,

Office of Aviation Medicine, Drug Abatement Division (AAM-800), 400

7th Street SW., Washington, DC 20590.

4. No covered employee who holds a part 67 airman medical

certificate shall perform safety-sensitive duties for an employer

following a violation until and unless the Federal Air Surgeon has

recommended that the employee be permitted to perform such duties.

D. Notice of Refusals

1. Except as provided in subparagraph 2 of this paragraph, each

employer shall notify the FAA of any covered employee who holds a

certificate issued under part 61, part 63, or part 65 who has

refused to submit to an alcohol test required under this appendix.

Notifications 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. An employer is not required to notify the FAA of refusals to

submit to pre-employment alcohol tests or refusals to submit to

return to duty tests.

E. Required Evaluation and Testing

No covered employee who has engaged in conduct prohibited by

Secs. 65.46a, 121.458, or 135.253 of this chapter shall perform

safety-sensitive functions unless the employee has met the

requirements of section VI, paragraph C of this appendix. 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 section VI, paragraph C of this

appendix.

F. Other Alcohol-Related Conduct

1. No covered employee tested under the provisions of section

III of this appendix who is found to have an alcohol concentration

of 0.02 or greater but less than 0.04 shall perform or continue to

perform safety-sensitive functions for an employer, nor shall an

employer permit the employee to perform or continue to perform

safety-sensitive functions, until:

(a) The employee's alcohol concentration measures less than

0.02; or

(b) The start of the employee's next regularly scheduled duty

period, but not less than 8 hours following administration of the

test.

2. Except as provided in subparagraph 1 of this paragraph, no

employer shall take any action under this rule against an employee

based solely on test results showing an alcohol concentration less

than 0.04. This does not prohibit an employer with authority

independent of this rule from taking any action otherwise consistent

with law.

VI. Alcohol Misuse Information, Training, and Referral

A. Employer Obligation to Promulgate a Policy on the Misuse of

Alcohol

1. General requirements. Each employer shall provide educational

materials that explain these alcohol misuse requirements and the

employer's policies and procedures with respect to meeting those

requirements.

(a) The employer shall ensure that a copy of these materials is

distributed to each covered employee prior to the start of alcohol

testing under the employer's FAA-mandated alcohol misuse prevention

program and to each person subsequently hired for or transferred to

a covered position.

(b) Each employer shall provide written notice to

representatives of employee organizations of the availability of

this information.

2. Required content. The materials to be made available to

employees shall include detailed discussion of at least the

following:

(a) The identity of the person designated by the employer to

answer employee questions about the materials.

(b) The categories of employees who are subject to the

provisions of these alcohol misuse requirements.

(c) Sufficient information about the safety-sensitive functions

performed by those employees to make clear what period of the work

day the covered employee is required to be in compliance with these

alcohol misuse requirements.

(d) Specific information concerning employee conduct that is

prohibited by this chapter.

(e) The circumstances under which a covered employee will be

tested for alcohol under this appendix.

(f) The procedures that will be used to test for the presence of

alcohol, protect the employee and the integrity of the breath

testing process, safeguard the validity of the test results, and

ensure that those results are attributed to the correct employee.

(g) The requirement that a covered employee submit to alcohol

tests administered in accordance with this appendix.

(h) An explanation of what constitutes a refusal to submit to an

alcohol test and the attendant consequences.

(i) The consequences for covered employees found to have

violated the prohibitions in this chapter, including the requirement

that the employee be removed immediately from performing safety-

sensitive functions, and the procedures under section VI of this

appendix.

(j) The consequences for covered employees found to have an

alcohol concentration of 0.02 or greater but less than 0.04.

(k) Information concerning the effects of alcohol misuse on an

individual's health, work, and personal life; signs and symptoms of

an alcohol problem; and available methods of evaluating and

resolving problems associated with the misuse of alcohol; and

intervening when an alcohol problem is suspected, including

confrontation, referral to any available employee assistance

program, and/or referral to management.

(l) Optional provisions. The materials supplied to covered

employees may also include information on additional employer

policies with respect to the use or possession of alcohol, including

any consequences for an employee found to have a specified alcohol

level, that are based on the employer's authority independent of

this appendix. Any such additional policies or consequences must be

clearly and obviously described as being based on independent

authority.

B. Training for Supervisors

Each employer shall ensure that persons designated to determine

whether reasonable suspicion exists to require a covered employee to

undergo alcohol testing under section II of this appendix receive at

least 60 minutes of training on the physical, behavioral, speech,

and performance indicators of probable alcohol misuse.

C. Referral, Evaluation, and Treatment

1. Each covered employee who has engaged in conduct prohibited

by Secs. 65.46a, 121.458, or 135.253 of this chapter shall be

advised by the employer of the resources available to the employee

in evaluating and resolving problems associated with the misuse of

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

substance abuse professionals and counseling and treatment programs.

2. Each covered employee who engages in conduct prohibited under

Secs. 65.46a, 121.458, or 135.253 of this chapter shall be evaluated

by a substance abuse professional who must determine what

assistance, if any, the employee needs in resolving problems

associated with alcohol misuse.

3. (a) Before a covered employee returns to duty requiring the

performance of a safety-sensitive function after engaging in conduct

prohibited by Secs. 65.46a, 121.458, or 135.253 of this chapter, the

employee shall undergo a return-to-duty alcohol test with a result

indicating an alcohol concentration of less than 0.02.

(b) In addition, each covered employee identified as needing

assistance in resolving problems associated with alcohol misuse--

(i) Shall be evaluated by a substance abuse professional to

determine whether the employee has properly followed any

rehabilitation program prescribed under subparagraph 2 of this

paragraph, and,

(ii) Shall be subject to unannounced follow-up alcohol tests

administered by the employer following the employee's return to

duty. The number and frequency of such follow-up testing shall be

determined by a substance abuse professional, but shall consist of

at least six tests in the first 12 months following the employee's

return to duty. The employer may direct the employee to undergo

testing for drugs (both return to duty and follow-up), in addition

to alcohol testing, if the substance abuse professional determines

that drug testing is necessary for the particular employee. Any such

drug testing shall be conducted in accordance with the requirements

of 49 CFR part 40. Follow-up testing shall not exceed 60 months from

the date of the employee's return to duty. The substance abuse

professional may terminate the requirement for follow-up testing at

any time after the first six tests have been administered, if the

substance abuse professional determines that such testing is no

longer necessary.

4. Evaluation and rehabilitation may be provided by the

employer, by a substance abuse professional under contract with the

employer, or by a substance abuse professional not affiliated with

the employer. The choice of substance abuse professional and

assignment of costs shall be made in accordance with employer/

employee agreements and employer policies.

5. Each employer shall ensure that a substance abuse

professional who determines that a covered employee requires

assistance in resolving problems with alcohol misuse 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--

(a) A public agency, such as a State, county, or municipality;

(b) The employer or a person under contract to provide treatment

for alcohol problems on behalf of the employer;

(c) The sole source of therapeutically appropriate treatment

under the employee's health insurance program; or

(d) The sole source of therapeutically appropriate treatment

reasonably accessible to the employee.

6. The requirements of this paragraph with respect to referral,

evaluation, and rehabilitation do not apply to applicants who refuse

to submit to pre-employment testing or have a pre-employment test

with a result indicating an alcohol concentration of 0.04 or

greater.

VII. Employer's Alcohol Misuse Prevention Program

A. Schedule for Submission of Certification Statements and

Implementation

1. Each employer shall submit an alcohol misuse prevention

program (AMPP) certification statement as prescribed in paragraph B

of section VII of this appendix, in duplicate, to the FAA, Office of

Aviation Medicine, Drug Abatement Division (AAM-800), 400 7th Street

SW., Washington, DC 20590, in accordance with the schedule below.

(a) Each employer that holds a part 121 certificate, each

employer that holds a part 135 certificate and directly employs more

than 50 covered employees, and each air traffic control facility

affected by this rule shall submit a certification statement to the

FAA by July 1, 1994. Each employer must implement an AMPP meeting

the requirements of this appendix on January 1, 1995. Contractor

employees to these employers must be subject to an AMPP meeting the

requirements of this appendix by July 1, 1995.

(b) Each employer that holds a part 135 certificate and directly

employs from 11 to 50 covered employees shall submit a certification

statement to the FAA by January 1, 1995. Each employer must

implement an AMPP meeting the requirements of this appendix on July

1, 1995. Contractor employees to these employers must be subject to

an AMPP meeting the requirements of this appendix by January 1,

1996.

(c) Each employer that holds a part 135 certificate and directly

employs ten or fewer covered employees, and each operator as defined

in 14 CFR 135.1(c) shall submit a certification statement to the FAA

by July 1, 1995. Each employer must implement an AMPP meeting the

requirements of this appendix on January 1, 1996. Contractor

employees to these employers must be subject to an AMPP meeting the

requirements of this appendix by July 1, 1996.

2. A company providing covered employees by contract to

employers may be authorized by the FAA to establish an AMPP under

the auspices of this appendix by submitting a certification

statement meeting the requirements of paragraph B of section VII of

this appendix directly to the FAA. Each contractor company that

establishes an AMPP shall implement its AMPP in accordance with the

provisions of this appendix.

(a) The FAA may revoke its authorization in the case of any

contractor company that fails to properly implement its AMPP.

(b) No employer shall use a contractor company's employee who is

not subject to the employer's AMPP unless the employer has first

determined that the employee is subject to another FAA-mandated

AMPP.

3. A consortium may be authorized to establish a consortium AMPP

under the auspices of this appendix by submitting a certification

statement meeting the requirements of paragraph B of section VII of

this appendix directly to the FAA. Each consortium that so certifies

shall implement the AMPP on behalf of the consortium members in

accordance with the provisions of this appendix.

(a) The FAA may revoke its authorization in the case of any

consortium that fails to properly implement the AMPP.

(b) Each employer that participates in an FAA-approved

consortium remains individually responsible for ensuring compliance

with the provisions of these alcohol misuse requirements and must

maintain all records required under section IV of this appendix.

(c) Each consortium shall notify the FAA of any membership

termination within 10 days of such termination.

4. Any person who applies for a certificate under the provisions

of parts 121 or 135 of this chapter after the effective date of the

final rule shall submit an alcohol misuse prevention program (AMPP)

certification statement to the FAA prior to beginning operations

pursuant to the certificate. The AMPP shall be implemented

concurrently with beginning such operations or on the date specified

in paragraph A.1. of this section, whichever is later. Contractor

employees to a new certificate holder must be subject to an FAA-

mandated AMPP within 180 days of the implementation of the

employer's AMPP.

5. 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 March 18, 1994 shall, not later

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

submit an alcohol misuse prevention program certification statement

to the FAA. The AMPP shall be implemented concurrently with the

inception of operations or on the date specified in paragraph A.1 of

this section, whichever is later. Contractor employees to a new air

traffic control facility must be subject to an FAA-approved program

within 180 days of the implementation of the facility's program.

6. Any person who intends to begin sightseeing operations as an

operator under 14 CFR 135.1(c) after March 18, 1994 shall, not later

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

submit an alcohol misuse prevention program (AMPP) certification

statement to the FAA. The AMPP shall be implemented concurrently

with the inception of operations or on the date specified in

paragraph A.1 of this section, whichever is later. Contractor

employees to a new operator must be subject to an FAA-mandated AMPP

within 180 days of the implementation of the employer's AMPP.

7. The duplicate certification statement shall be annotated

indicating receipt by the FAA and returned to the employer,

contractor company, or consortium.

8. Each consortium that submits an AMPP certification statement

to the FAA must receive actual notice of the FAA's receipt of the

statement prior to performing services as an FAA-approved consortium

under this appendix on behalf of employers or contractor companies.

9. Each employer, and each contractor company that submits a

certification statement directly to the FAA, shall notify the FAA of

any proposed change in status (e.g., join a consortium or another

carrier's program, change consortium, etc.) prior to the effective

date of such change. The employer or contractor company must ensure

that it is continuously covered by an FAA-mandated alcohol misuse

prevention program.

B. Required Content of AMPP Certification Statements

1. Each AMPP certification statement submitted by an employer or

a contractor company shall provide the following information:

(a) The name, address, and telephone number of the employer/

contractor company and for the employer/contractor company AMPP

manager;

(b) FAA operating certificate number (if applicable);

(c) The date on which the employer or contractor company will

implement its AMPP;

(d) If the submitter is a consortium member, the identity of the

consortium; and

(e) A statement signed by an authorized representative of the

employer or contractor company certifying an understanding of and

agreement to comply with the provisions of the FAA's alcohol misuse

prevention regulations.

2. Each consortium certification statement shall provide the

following information.

(a) The name, address, and telephone number of the consortium's

AMPP manager;

(b) A list of the specific services the consortium will be

providing in implementation of FAA-mandated AMPPs (e.g., random

testing, SAP).

(c) A statement signed by an authorized representative of the

consortium certifying an understanding of and agreement to comply

with the provisions of the FAA's alcohol misuse prevention

regulations.

VIII. Employees Located Outside the U.S.

A. No covered employee shall be tested for alcohol misuse while

located outside the territory of the United States.

1. Each covered employee who is assigned to perform safety-

sensitive functions solely outside the territory of the United

States shall be removed from the random testing pool upon the

inception of such assignment.

2. Each covered employee who is removed from the random testing

pool under this paragraph shall be returned to the random testing

pool when the employee resumes the performance of safety-sensitive

functions wholly or partially within the territory of the United

States.

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

who performs a safety-sensitive function by contract for an employer

outside the territory of the United States.

PART 135--AIR TAXI OPERATORS AND COMMERCIAL OPERATORS

13. The authority citation for part 135 is revised 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).

14. In Sec. 135.1 paragraphs (c) and (d) are revised to read as

follows:

Sec. 135.1 Applicability.

* * * * *

(c) For the purpose of Secs. 135.249, 135.251, 135.253, 135.255,

and 135.353, operator means any person or entity conducting non-stop

sightseeing flights for compensation or hire in an airplane or

rotorcraft that begin and end at the same airport and are conducted

within a 25 statute mile radius of that airport.

(d) Notwithstanding the provisions of this part and appendices I

and J to part 121 of this chapter, an operator who does not hold a part

121 or part 135 certificate is permitted to use a person who is

otherwise authorized to perform aircraft maintenance or preventive

maintenance duties and who is not subject to FAA-approved anti-drug and

alcohol misuse prevention programs to perform--

(1) Aircraft maintenance or preventive maintenance on the

operator's aircraft if the operator would otherwise be required to

transport the aircraft more than 50 nautical miles further than the

repair point closest to operator's principal place of operation to

obtain these services; or

(2) Emergency repairs on the operator's aircraft if the aircraft

cannot be safely operated to a location where an employee subject to

FAA-approved programs can perform the repairs.

15. Section 135.253 is added to subpart E to read as follows:

Sec. 135.253 Misuse of alcohol.

(a) This section applies to employees who perform a function listed

in appendix J to part 121 of this chapter for a certificate holder or

operator (covered employees). For the purpose of this section, a person

who meets the definition of covered employee in appendix J is

considered to be performing the function for the certificate holder or

operator.

(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 or operator having actual knowledge that an employee

has an alcohol concentration of 0.04 or greater shall permit the

employee to perform or continue to perform safety-sensitive functions.

(c) On-duty use. No covered employee shall use alcohol while

performing safety-sensitive functions. No certificate holder or

operator having actual knowledge that a covered employee is using

alcohol while performing safety-sensitive functions shall permit the

employee to perform or continue to perform safety-sensitive functions.

(d) Pre-duty use. (1) No covered employee shall perform flight

crewmember or flight attendant duties within 8 hours after using

alcohol. No certificate holder or operator 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 or operator having actual

knowledge that such an employee has used alcohol within 4 hours shall

permit the employee to perform or 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 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 appendix J of part

121 of this chapter, 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. No covered

employee shall refuse to submit to a post-accident, random, reasonable

suspicion, or follow-up alcohol test required under appendix J to part

121 of this chapter. No operator or certificate holder shall permit a

covered employee who refuses to submit to such a test to perform or

continue to perform safety-sensitive functions.

16. Section 135.255 is added to subpart E to read as follows:

Sec. 135.255 Testing for alcohol.

(a) Each certificate holder and operator must establish an alcohol

misuse prevention program in accordance with the provisions of appendix

J to part 121 of this chapter.

(b) No certificate holder or operator shall use any person who

meets the definition of ``covered employee'' in appendix J to part 121

to perform a safety-sensitive function listed in that appendix unless

such person is subject to testing for alcohol misuse in accordance with

the provisions of appendix J.

Issued in Washington, DC, on January 25, 1994.

Federico Pena,

Secretary of Transportation.

David R. Hinson,

Administrator.

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

Regulations.

Exhibits--FAA Alcohol Testing Management Information System Data

Collection Forms

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[FR Doc. 94-2032 Filed 2-3-94; 1:00 pm]

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