[Federal Register Volume 59, Number 160 (Friday, August 19, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20237]


[[Page Unknown]]

[Federal Register: August 19, 1994]


_______________________________________________________________________

Part III





Department of Transportation





_______________________________________________________________________



Federal Aviation Administration



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14 CFR Parts 65, 121, 135




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

Federal Aviation Administration -

14 CFR Parts 65, 121, 135

[Docket Nos. 25148 and 26620; Admt. Nos. 65-38; 121-240; 135-51]
RIN 2120-AE82

 
Antidrug Program for Personnel Engaged in Specified Aviation 
Activities

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: The Omnibus Transportation Employee Testing Act of 1991 (the 
Act), amended the Federal Aviation Act of 1958 to provide a statutory 
mandate for drug testing of air carrier employees. The Act also 
prescribed certain consequences for prohibited drug use and mandated 
the use of split specimen testing. This rule amends the antidrug rule 
for conformity to the requirements of the Act.
    In addition, this rule incorporates other changes to the antidrug 
rule. These changes clarify the requirements of the rule and also 
address concerns that have been raised since the rule was published.
    Finally, this rule includes substantive changes to address 
provisions of the rule that are unclear, do not comport with the 
changes in the final DOT drug testing procedures, or do not adequately 
address required steps in the implementation process.

EFFECTIVE DATE: This final rule is effective on September 19, 1994, 
except the amendment to part 121, appendix I, VI.C. which is effective 
August 15, 1994.

FOR FURTHER INFORMATION CONTACT: Ms. Julie B. Murdoch, Office of 
Aviation Medicine, Drug Abatement Division (AAM-800), Federal Aviation 
Administration, 400 7th Street SW., Washington, DC 20590; telephone 
(202) 366-6710.

SUPPLEMENTARY INFORMATION:

Availability of Final Rule

    Any person may obtain a copy of this final rule by submitting a 
request to the Federal Aviation Administration, Office of Public 
Affairs, Attn: Public Inquiry Center (APA-230), 800 Independence 
Avenue, SW., Washington, DC 20591, or by calling (202) 267-3484. 
Requests must include the amendment number identified in this final 
rule.
    Persons interested in being placed on a mailing list for future 
rulemaking actions should request a copy of Advisory Circular 11-2A, 
Notice of Proposed Rulemaking Distribution System, which describes the 
application procedures.

Background

    On November 14, 1988, the FAA issued an antidrug rule which 
required specified aviation employers and operators to initiate 
antidrug programs for personnel performing safety-sensitive functions.
    On October 28, 1991, the Omnibus Transportation Employee Testing 
Act of 1991 (the Act) was enacted. Among other things, the Act provided 
a statutory mandate for drug testing in the aviation industry and 
required specified consequences for positive drug tests. A notice of 
proposed rulemaking (NPRM), published on February 15, 1994, proposed 
amendments to certain provisions of the FAA's antidrug rule in 
accordance with the Act. The NPRM also proposed certain other changes 
to the antidrug rule that would clarify employer and Medical Review 
Officer responsibilities and addressed other issues that have been 
identified since the promulgation of the rule. This rule incorporates 
the requirements of the statutory mandate, as well as the clarifying 
amendments.
    Seven comments were received in the docket in response to the NPRM. 
These comments were taken into consideration during the development of 
this final rule.

Reason for Expedited Effective Date

    A section of this rule concerning split specimen testing is being 
made effective in less than the 30 days from publication usually 
required by law. With an effective date of August 15, 1994, for this 
section the FAA can ensure that this rule is consistent with the DOT 
final rule which was published on February 15, 1994 (59 FR 7354). The 
DOT rule implements split specimen collection testing required by the 
Omnibus Transportation Employee Testing Act of 1991, as of August 15, 
1994, for four modal administrations under the DOT. The DOT rule 
provided affected employers 6 months to begin implementing split 
specimen testing. Because employers have been given prior notification 
of the requirement for split specimen testing, employers subject to 
this rule will not be unduly burdened by an effective date of less than 
30 days. The FAA has therefore determined that good cause exists under 
the provisions of 5 U.S.C. 533(d)(3) to warrant an expedited effective 
date.

Discussion of Comments and Final Rule

    This rulemaking action encompasses a variety of changes to the 
FAA's antidrug regulation, most of which affect the operational 
provisions of the antidrug rule found in 14 CFR part 121, appendix I. 
Because a variety of changes, both substantive and minor technical 
revisions, were made to appendix I, the entire revised appendix has 
been republished in this final rule. Each of the significant changes 
and any related comments are discussed in detail below.

Random Testing

    This final rule does not change the random drug testing 
requirements. The FAA notes, however, that a separate NPRM was jointly 
issued by the Office of the Secretary of Transportation and all DOT 
agencies with antidrug rules on February 15, 1994 (59 FR 7614). This 
NPRM proposed parallel changes to each agency's rule under which the 
random drug testing rate would be established based on the rate of 
random positive drug tests in the particular industry. Because of the 
common aspects of the random testing issues, the FAA will make any such 
changes as part of a joint final rule to be issued in the near future.

Amendments Required by the Act

Prohibition on Service; Rehabilitation and Evaluation
    The Omnibus Transportation Employee Testing Act section entitled 
``Prohibition on service'' (found at new FAAct section 614(b)) provides 
that no person who is determined to have engaged in illegal use of 
drugs may perform a safety-sensitive function after such determination. 
In accordance with this section, the FAA proposed that sections of the 
FAA's regulations that address the use of prohibited drugs (see, e.g., 
14 CFR 65.46(c), (d)) would be revised slightly to reflect the fact 
that entities other than certificate holders (i.e., contractor 
companies) can require drug tests under the antidrug rule if they have 
an FAA-approved antidrug program. The changes were supported by 
commenters and are included in the final rule.
    Section 614(b)(2) of the FAAct, ``Effect of Rehabilitation,'' 
states that no covered employee may perform a safety-sensitive function 
after engaging in prohibited conduct unless he or she has completed a 
rehabilitation program under the provisions of section 614(c) of the 
FAAct. Section 614(c)(1) requires the Administrator to prescribe 
regulations that at a minimum provide for the identification and 
opportunity for treatment of employees in need of assistance in 
resolving problems with the use of controlled substances. Further, the 
section states that the Administrator shall determine the circumstances 
under which such employees shall be required to participate in such a 
program. This language recognizes that rehabilitation may not be 
appropriate or warranted in all cases of prohibited conduct.
    The legislative requirement of section 614(b)(2) is implemented in 
the revisions to paragraph A, section VII, of appendix I. The 
legislative history of the Act reflected the fact that the FAA did not 
prescribe regulations with respect to specific types of rehabilitation 
in its antidrug rule. However, because the Act requires the FAA to 
prescribe regulations under which persons in need of assistance would 
be identified, this final rule modifies the Medical Review Officer 
(MRO) duties to include such identification. Some commenters noted that 
a MRO may not be qualified as a substance abuse professional (SAP) and 
should therefore be required to refer the individual to a qualified SAP 
for the evaluation. It was the FAA's intent that only MROs who also 
meet the qualifications of a SAP (as contained in the definition of a 
SAP) would be authorized to perform the initial evaluation of 
individuals who have a verified positive drug test result or refuse to 
submit to a required test. The final rule has been changed to clarify 
this requirement. It also incorporates a provision parallel to one in 
the alcohol misuse prevention program final rule that limits the 
providers or facilities to which SAPs who perform an initial evaluation 
may refer an employee determined to be in need of assistance. This 
limitation also applies to MROs who serve as SAPs.
    The NPRM proposed, and this final rule provides, that each covered 
employee who had a verified positive drug test result or who refused to 
submit to testing would be advised of all relevant resources available 
to the employee. Further, each such employee would be evaluated by a 
SAP (who could be the MRO) who would determine whether and what 
assistance the employee needed in resolving problems associated with 
prohibited drug use. Some commenters representing labor organizations 
stated that the FAA should include requirements that employers must 
provide or pay for any required treatment and that employees should be 
prohibited from terminating employees who are undergoing treatment. The 
FAA reaffirms its position that these issues are most appropriately 
matters for employer/employee negotiation.
    New section 614(b)(3) of the FAAct, ``Performance of prior duties 
prohibited,'' provides sanctions for employees who engage in prohibited 
use of drugs. It provides that, under certain circumstances discussed 
below, an individual shall not be permitted to perform the duties 
related to air transportation that he or she performed prior to the 
date he or she engaged in the prohibited drug use. The legislation does 
not require that the individual's employment be terminated, nor that he 
or she be reassigned to perform non-safety-sensitive functions. 
However, it is an absolute bar to the performance of the same duties 
the employee performed before the violation.
    The final rule implements the provisions in the Act in two ways. 
Appendix I has been revised by adding paragraph F to section VI to 
preclude any person from performing the safety-sensitive function that 
the individual was performing if that person had two verified positive 
drug test results or if the individual used a prohibited drug while 
performing such a safety-sensitive function. A definition of 
``performing'' paralleling the one in the alcohol misuse prevention 
program rule has been added. In order to effectively administer this 
provision, the final rule provides that this prohibition is effective 
for drug tests and on-duty drug use occurring after the effective date 
of the final rule. (The NPRM proposed to amend the regulatory sections 
to implement this prohibition. However, for clarity and consistency 
with the alcohol misuse prevention program we are adding this provision 
to appendix I.)
    The bar is limited to the narrow prohibition in the Act and will 
not affect the performance of other duties. While the FAA recognizes 
that a narrow bar could lead to anomalous results (for example, a 
person might be barred from performing screening duties but could serve 
as a pilot), a bar that is limited to the statutory requirements is 
more likely to be consistent with the requirements of the Americans 
with Disabilities Act or other legal constraints. The FAA expects that 
employers will exercise responsible judgment in determining whether 
employees not expressly barred from service should be permitted to 
perform other safety-sensitive duties.
    The bar on two-time violators will apply both to persons who have 
gone through rehabilitation and to those who, after evaluation, were 
determined not to need treatment. Otherwise, an employee who was found 
to need treatment and had an instance of recidivism would be subject to 
the bar, but an employee who did not need assistance but simply chose 
to use drugs again would not be. This provision is established under 
the FAA's general statutory authority to prescribe regulations 
affecting aviation safety.
    Commenters representing labor organizations objected to the 
permanent bar in principle, but recognized the FAA's statutory 
requirement to impose such a bar. Commenters representing employers 
objected to the FAA's implementation of the permanent bar in which the 
burden of ensuring that permanently barred individuals do not perform 
the relevant safety-sensitive duties is placed on employers. These 
commenters assert that the FAA should maintain a name-specific ``black 
list'' that employers could check to determine an applicant's status. 
The FAA has not adopted this recommendation and believes that it would 
be inappropriate to do so. Aside from the obvious privacy and 
logistical issues associated with the creation of such a data base, it 
would not serve the purpose asserted by the commenters, which appears 
to be to relieve the employers of the necessity of obtaining 
information regarding applicants' drug testing history. However, the 
permanent bar is not the only measure precluding service in a safety-
sensitive function. In addition, if an individual has a verified 
positive drug test result or has refused to submit to a drug test, the 
employer cannot use the individual to perform any safety-sensitive 
function unless and until the appropriate MRO or SAP evaluation and 
return to duty requirements have been met. (A similar prohibition 
applies under the alcohol misuse prevention program, 14 CFR part 121, 
appendix J). Information regarding such unresolved violations can be 
obtained only from the employee's records. In summary, the FAA does not 
view the need to ensure that an applicant is not subject to the 
permanent bar as materially different from the other requirements in 
this employer-based, employer-implemented program.
    The FAA has addressed one concern raised by commenters regarding 
the availability of records from previous employers. The 
confidentiality provisions have been revised to clarify that employers 
are required to release employee antidrug program records upon written 
consent of the employee. This revision precludes prior employers from 
refusing to release records and thereby frustrating the intent of this 
regulation. With respect to record retention, the FAA notes that the 
retention periods provided in this rule are minimums and employers may 
choose to retain any records for a longer period of time. Employers 
should consider longer retention of information regarding verified 
positive drug test results, refusals to submit to testing, evaluation, 
and rehabilitation, if for no other reason than to ensure that an 
individual previously terminated for violating the rule is not rehired 
for and impermissibly returned to the performance of safety-sensitive 
functions.
    Commenters also expressed concern that employees be provided with 
adequate notice of the implications of having a verified positive drug 
test result or using drugs while performing a safety-sensitive 
function. The FAA agrees that employees should be advised of the 
consequences of such actions, and of the consequences of refusing to 
submit to a required test (which, although it does not implicate the 
permanent bar, does necessitate removal from safety-sensitive functions 
and possible reporting to the FAA). The FAA has therefore revised the 
employee assistance program provisions of appendix I to include a 
requirement that the employer policy provide information on the 
consequences under the antidrug rule of illegal use of drugs, verified 
positive drug test results, and refusals to submit to testing. It 
should be noted that an employer may advise employees of any 
consequences imposed under the employer's independent authority (e.g., 
termination); however, the employer could not purport or imply that the 
FAA's antidrug rule required such actions.
    The permanent bar following a refusal to undertake or failure to 
complete rehabilitation is further implemented by retaining the current 
requirement that prior to returning to duty performing safety-sensitive 
functions following a verified positive drug test result on an FAA-
mandated drug test or refusal to submit to such a drug test, the 
employee must be evaluated by the MRO on the specific issue of 
compliance with any previously-established treatment program. This rule 
retains the provisions regarding MRO recommendations for return to 
duty, with the modification that, based on the requirements of the Act, 
the MRO cannot recommend return to duty if an individual has failed to 
comply with a specified rehabilitation program. The FAA has chosen, 
however, not to impose a definite time period during which the employee 
must agree to undertake or complete the prescribed rehabilitation. This 
allows for the denial phase that most people go through when first 
confronted with evidence of a drug problem.
Split Specimen Testing
    Split specimen testing, which is expressly required under the Act, 
is a procedure under which an original urine specimen is divided into 
two containers, each of which is sealed, labeled, and maintained 
separately. If the primary specimen tests positive, the split or 
secondary specimen can be tested to ensure that the confirmed positive 
was not caused by error or tampering. In accordance with the 
requirements of the Act, DOT has revised its procedural rule to require 
split specimen testing for all drug testing performed under the 
auspices of the FAA antidrug rule (and those of the Federal Highway 
Administration, the Federal Railroad Administration, and the Federal 
Transit Administration). Consistent with the provisions of the DOT 
rule, this final rule provides that split specimen testing is in lieu 
of the right to request a retest of the original specimen.
    A number of commenters objected to the split specimen testing 
requirement as unnecessary and unduly burdensome. These commenters 
stated that split specimen provisions should not be included in the 
final rule. The FAA is constrained by the requirements of the Act and 
must provide for split specimen testing. All aviation entities with 
FAA-approved antidrug programs must therefore ensure that they have 
split specimen testing provisions in place by August 15, 1994, 
including providing appropriate amendments to their antidrug program 
plans to the FAA.
    Both the Act and the DOT's revised rule provide that an employee is 
entitled to split specimen testing if the employee requests such 
testing within 3 days of receiving notice of the positive drug test 
result, and this final rule incorporates an analogous provision. The 
NPRM proposed that the request must be in writing. Commenters noted 
that the requirement for a written request conflicts with the limited 
time available during which to make the request to have a split 
specimen tested. The FAA has deleted the proposed requirement that an 
employee request the split specimen test in writing. The final rule 
also revises the provision regarding MRO verification of the primary 
specimen. The NPRM proposed that the MRO ``may'' proceed with 
verification pending receipt of the split specimen test result. 
Although this language was permissive, it was not the intent of the FAA 
that verification could be delayed solely based on an employee's 
request for a split specimen test. Rather, the provision was intended 
to recognize that factors other than the request for the split specimen 
analysis could affect the verification process. The final rule makes 
the intent of the FAA explicit. Finally, the rule provides that no 
employer or agency action is stayed during the request period or while 
waiting for a split specimen test result.

Clarifying Amendments

Rule Language

    The NPRM included a notice that in the final rule the FAA would 
amend the antidrug rule to change the terms ``passing'' and ``failing'' 
a drug test. All of the DOT agencies that require drug testing, 
including the FAA, have received reports of some confusion in their 
respective industries regarding the use of the terms passing and 
failing a drug test and how those terms relate to different drug test 
results (i.e., confirmed or verified positive or negative test, 
cancelled tests, etc.). The final rule changes these terms wherever 
they are used throughout the antidrug rule to the more accurate 
``verified positive'' or ``verified negative.''
    Additionally, the revised appendix I published in this final rule 
includes a number of minor editorial changes. For example, throughout 
the antidrug rule the phrase ``functions specified in section III of 
appendix I'' is used. This final rule replaces that phrase with the 
term ``safety-sensitive function,'' which is defined accordingly.

Contract Air Traffic Control Facilities

    As was noted in the preamble to the NPRM, when the FAA's final 
antidrug rule was published in 1988, air traffic control (ATC) 
facilities operated under contract with the FAA were explicitly 
excluded from coverage under the rule. It was subsequently determined 
that employees of contract ATC facilities would not be included in the 
FAA's program for Federal employees and should be subject to the FAA's 
rules for the aviation industry. This final rule changes the definition 
of covered employers to include such facilities. The FAA's air traffic 
control facilities and facilities operated by the military (whether 
directly or by contract) are not affected by this change.
    Air traffic control facilities, whether they are currently required 
to perform testing by contract or not, should submit plans to the FAA 
within 90 days after the rule's effective date, as required by 
paragraph A.5., Section IX.

Refusal to Submit to Testing

    The final antidrug rule included amendments to the airmen 
certification sections of the FAA's regulations under which a refusal 
to submit to testing could be the basis for a certificate action. 
However, the rule did not have an express requirement for employers to 
notify the FAA of refusals or a specific mechanism for providing such 
notice. The NPRM proposed a reporting requirement that (paragraph E of 
section VI of appendix I to part 121) would correct this gap in the 
requirements of the rule. However, the proposal did not include a 
specific time for notifications. The final rule specifies that 
employers must notify the FAA of refusals to submit to required tests 
within 5 working days. The final rule also clarifies that sanctions do 
not attach to refusals to submit to either pre-employment or return to 
duty tests since the redefinition of ``return to duty tests'' makes 
such tests essentially voluntary. An individual who refuses to submit 
to pre-employment or return to duty testing but then wishes to perform 
a safety-sensitive function would have to subsequently agree to take 
and have a verified negative drug test result on such a test. The 
individual would then be subject to follow-up testing while performing 
safety-sensitive functions, because the individual might have refused 
based on recent drug use. The individual would not, however, be subject 
to certificate action for declining what is essentially a test taken 
voluntarily as a precondition to performing safety-sensitive duties.

Employees Covered By the Antidrug Rule

    The final rule modifies the specified safety-sensitive duties 
slightly to parallel the classes of covered functions in the FAA's new 
alcohol misuse prevention program rule (14 CFR part 121, appendix J). 
This modification is not intended to significantly change the antidrug 
rule's coverage. The most significant changes are the elimination of 
flight test and ground instruction duties. The former category is 
eliminated because the FAA has determined that as a practical matter, 
these duties are essentially subsumed in flight crewmember or flight 
instructor duties. Ground instruction duties have been eliminated based 
on the FAA's desire to reduce the burden of the antidrug rule on the 
industry and the determination that individuals performing such duties 
could be removed from the program without jeopardizing public safety. 
Additionally, the categories of ``aviation screening duties'' and 
``ground security coordinator duties'' have been established to clarify 
the FAA's original intent with respect to covered security functions.
    Although most commenters supported these changes, one commenter 
believed that rather than specifying categories of safety-sensitive 
duties, the rule should provide the Administrator with the discretion 
to establish these categories without rulemaking. The FAA has not 
adopted this recommendation. While flexibility might be desirable, the 
FAA believes that it is essential that adequate notice and opportunity 
for comment be given to individuals the FAA intends to subject to the 
requirements of this rule. Publication of the safety-sensitive 
functions as part of the final rule also ensures that affected 
employees and employers have actual or constructive knowledge of the 
requirements of the rule.
    The FAA has previously received a petition for rulemaking on the 
issue of the appropriate scope of covered employees under the antidrug 
rule. Because the issues raised in the petition have been resolved in 
this final rule, the FAA has closed this action. (Docket No. 26620)
    Because the covered employee categories are being revised, we are 
republishing with this final rule the Drug Testing Management 
Information System (MIS) Data Collection Forms, which were published in 
the Federal Register on December 23, 1993 (58 FR 68198), and became 
effective on January 1, 1994. These forms provide the FAA with 
additional data for use in monitoring the antidrug program and reflect 
the changes in employees covered by the antidrug rule. There are no 
other significant changes to the forms.

Pre-Employment Testing

    The NPRM proposed to revise the antidrug rule's pre-employment 
testing provision (paragraph A of section V of appendix I) to make the 
provision less burdensome. When it was published in 1988, the antidrug 
rule required pre-employment testing before an individual could be 
hired to perform a function specified in appendix I. As interpreted by 
the FAA, testing was required of individuals not currently employed by 
the employer, of current employees moving from a non-covered to a 
covered safety-sensitive function, and in circumstances where an 
employee was removed from the random testing pool for any length of 
time or was unavailable for testing for an extended period of time. 
Individuals who had a verified positive drug test result or refused to 
submit to an FAA-mandated drug test also had to pass a pre-employment 
test prior to performing or returning to safety-sensitive duties.
    The FAA continues to believe that pre-employment drug testing has 
utility for those individuals who have not previously been subject to 
the FAA-approved random drug testing program of an employer. However, 
we have reassessed the need for pre-employment testing in other 
situations, such as when an employee has been on leave of absence or 
working outside the territory of the United States. The FAA believes, 
and all of the commenters addressing this issue concur, that safety can 
be maintained even if the requirement for pre-employment testing in 
some circumstances is eliminated. Therefore, the FAA has revised its 
antidrug rule to require pre-employment testing of an individual only 
prior to the first time the individual performs a safety-sensitive 
function for an employer. Such an individual must have a verified 
negative drug test result on a pre-employment test prior to performing 
a safety-sensitive function, and the employer could not permit the 
individual to perform such a function until the employer receives the 
verified negative pre-employment drug test result.
    Employers would be permitted to require an employee to submit to 
pre-employment testing in cases where an employee previously subject to 
random testing by that employer has been removed from the random 
testing pool for reasons other than a verified positive drug test 
result on an FAA-mandated drug test or refusal to submit to such 
testing.

Return to Duty and Follow-Up Testing

    The 1988 final antidrug rule included the category of ``testing 
after return to duty'' (former paragraph F, section V, appendix I). 
Under this provision, individuals who had been hired to perform safety-
sensitive functions, or returned to the performance of safety-sensitive 
functions after receiving a verified positive drug test result on or 
refusing to submit to an FAA-mandated drug test, were subject to 
unannounced testing. As noted above, the threshold test required before 
returning to duty was characterized as a pre-employment test.
    Commenters concurred with the FAA's assessment that the FAA's prior 
use of the term ``return to duty'' testing has caused confusion in the 
industry. The FAA also wishes to ensure consistency in terminology with 
the alcohol misuse prevention program rule. For these reasons, the 
antidrug rule has been revised to provide that an individual who had a 
verified positive drug test result on a pre-employment test, or refused 
a pre-employment test, must take another pre-employment test and obtain 
a verified negative drug test result before performing safety-sensitive 
duties and would then be subject to follow-up testing. An employee who 
had a verified positive drug test result on another type of test or 
refused to submit to another type of test (e.g., random) must take a 
return to duty test and obtain a verified negative drug test result 
before returning to the performance of safety-sensitive duties, and 
would then be subject to follow-up testing. Like all FAA-mandated 
tests, return to duty and follow-up tests must be performed in 
accordance with the requirements of appendix I and the testing 
procedures in 49 CFR part 40.
    The FAA also proposed two other changes that would parallel the 
provisions of the alcohol rule. The first proposed change was the 
addition of a mandatory minimum of six follow-up drug tests during an 
individual's first 12 months after being hired for or returning to the 
performance of safety-sensitive functions after the individual has 
refused to submit to or had a verified positive drug test result on an 
FAA-mandated test. Commenters generally opposed this proposal, 
believing the determination of the appropriate number of follow-up 
tests should be a matter for the MRO's discretion. Based on these 
comments, the FAA has revised the follow-up testing provision. As 
revised, although follow-up testing is required for any person who 
refuses to submit to or who has a verified positive drug test result on 
an FAA-mandated drug test, a minimum of six tests over 12 months will 
be required only for an individual who is determined in an evaluation 
conducted under this rule to be in need of assistance in resolving 
problems associated with illegal use of drugs. This modification 
ensures that those employees most in need of monitoring will be subject 
to at least a minimum number of tests over the first year after 
returning to duty, the period during which recidivism is the most 
likely to occur. The remaining employees would be tested at the MRO's 
discretion.
    The second change permits the employer to direct the individual to 
undergo alcohol testing, as well as drug testing, if the Medical Review 
Officer determines that such testing would be appropriate. No 
commenters addressed this change, and the final rule includes this 
provision as it was proposed.

Medical Review Officer Functions

    The NPRM proposed to substantially revise section VII of appendix 
I. First, changes in the DOT final rule (49 CFR part 40), which 
establishes the duties of the MRO in the verification process, have 
superseded the FAA's rule. Rather than reiterate the duplicative 
provisions of the DOT rule, which are subject to change, the revised 
MRO section cites to the applicable provisions of the DOT rule and 
incorporates them (and therefore any future amendments) by reference.
    The MRO duties have been revised to require the MRO to inquire 
whether an individual holds a part 67 airman medical certificate, to 
process requests for split specimen testing, and to evaluate or refer 
the individual to a SAP for evaluation, as discussed previously. The 
MRO's duties in the case of an employee or applicant who holds a part 
67 airman medical certificate or who would be required to hold such a 
certificate to perform a safety-sensitive function for an employer are 
also specified. In response to comments, the requirements for 
submission of the reports to the Federal Air Surgeon have been revised. 
The final rule provides that an MRO has 10 working days following 
verification of a positive drug test result in which to make a 
determination regarding drug dependence. All documents pertaining to 
the test result, verification, dependency, SAP evaluations, and return 
to duty recommendations, if any, must be forwarded to the Federal Air 
Surgeon within 12 working days of verifying the positive drug test 
result.
    The final rule also includes specific recordkeeping requirements 
for the MRO. This change makes explicit the previously implicit 
requirement that MROs maintain records necessary for accomplishing 
their duties. While the records are created on behalf of and remain the 
employers' records, the new recordkeeping section reflects the fact 
that, of necessity, there are records that must be maintained by the 
MRO if the MRO is to fulfill his or her regulatory role. The provision 
regarding forwarding of MRO records has been revised slightly from the 
NPRM to clarify that it is the employer's obligation to ensure that MRO 
records are forwarded to a new MRO, even if the employer is obtaining 
MRO services through a consortium. The change reflects the FAA's 
position that records associated with a particular employer's antidrug 
program remain the employer's records, even if the records are 
maintained by the MRO and even if the employer does not contract 
directly with the MRO. The FAA recognizes that a consortium may effect 
the actual transfer of records; however, the consortium does so only as 
an agent of the employers using its services to implement their 
programs.

Antidrug Program Plan Submission

    Several changes were proposed in this NPRM to the plan submission 
provisions. First, the address to which plans and plan amendments must 
be submitted has been changed to reflect the Drug Abatement Division's 
current address. Second, the ``transition'' provisions of the rule for 
new aviation employers (paragraph A., section IX) have been changed to 
eliminate the substantial grace period previously provided. Commenters 
supported the FAA's view that given the published guidance available 
from the FAA and from private sector entities and the wealth of 
material and experience now available, there is no longer a reason to 
permit carriers to begin operations without having implemented an FAA-
approved antidrug program.
    The FAA noted in the preamble to the final rule that the compliance 
deadlines for new businesses might be accelerated in the future (53 FR 
47043; November 21, 1988), and, accordingly, this final rule prohibits 
covered employers from beginning operations without an approved 
antidrug program. The program must be implemented, and all covered 
employees subject to testing, not later than the inception of 
operations. Any person hired by a new certificate holder to perform a 
safety-sensitive function after the issuance of the certificate must 
undergo pre-employment testing. Additionally, each new employer must 
ensure that employees performing safety-sensitive functions by contract 
are subject to an FAA-approved antidrug program within 60 days of the 
implementation of the employer's program. This requirement will impose 
no significant burden on new operators and any burden is outweighed by 
the benefits gained by public safety.
    Third, the consortium plan submission section has been revised to 
require that each consortium program must provide for notification to 
the FAA of changes in membership. Finally, a new provision (section IX, 
paragraph A.6.) expressly states that covered employers must ensure 
that they are continuously covered under an approved antidrug program. 
This new section reflects the FAA's recognition of the fluid nature of 
the aviation industry, in which locations, contracts, and even 
corporate identities are subject to frequent changes.

Employees Located Outside the United States

    As noted in the preamble to the NPRM, the original antidrug rule 
published in 1988 applied to employees performing safety-sensitive 
functions for the specified employers regardless of whether the 
employees were located within the territory of the United States or 
were located in a foreign country. In recognition of the international 
implications of the rule, however, the effective date of the rule with 
respect to employees located outside the territory of the United States 
was deferred on a number of occasions. Significant practical and legal 
concerns surrounding implementation of the antidrug rule outside the 
territory of the United States remain and the FAA has substantially 
revised the international section of the antidrug rule (section XII, 
appendix I).
    Consistent with the proposed rule, this final rule provides that no 
employee located outside the territory of the United States shall be 
tested for illegal use of drugs under the provisions of appendix I. To 
ensure proper selection for random testing, an employer must remove 
from the random testing pool any employee assigned to perform safety-
sensitive functions solely outside the territory of the United States, 
since such an employee is not available for testing. The employee must 
be returned to the random testing pool as soon as the employee once 
more begins to perform functions wholly or partially within the 
territory of the United States. As noted above, the employer has the 
option of requiring the employee to undergo a pre-employment test prior 
to returning to the performance of a safety-sensitive function within 
the territory of the United States (and therefore to the random testing 
pool). This section also provides that the provisions of appendix I do 
not apply to employees performing safety-sensitive functions by 
contract outside the territory of the United States.
    Although most commenters supported this revision, one commenter 
expressed concern that employees performing safety-sensitive functions 
within the territory of the United States may be subject to random 
testing at a disproportionately high rate if employees outside the 
territory of the United States are excused from testing and that 
employees taken out of the random testing pool may pose a safety risk. 
The FAA is cognizant of concerns about safety and economic parity that 
are raised by this exclusion. However, the FAA has determined that the 
burdens associated with extraterritorial testing outweigh the possible 
safety benefit. The FAA expects that employers will ensure that persons 
performing safety-sensitive functions wholly or partially within the 
territory of the United States remain subject to an effective random 
testing program. Finally, employers concerned about drug use by 
employees removed from the random testing pool may, as addressed above, 
subject such employees to pre-employment testing prior to permitting 
the employees to perform safety-sensitive functions within the 
territory of the United States.

Paperwork Reduction Act Approval

    The recordkeeping and reporting requirements of the final antidrug 
rule, issued on November 14, 1988, were previously submitted to the 
Office of Management and Budget (OMB) for approval in accordance with 
the Paperwork Reduction Act of 1980. The OMB approval is under control 
number 2120-0535. The recordkeeping and reporting requirements in this 
amendment to the final rule were submitted to OMB during the NPRM stage 
and approved under the same OMB#2120-0535. There have been no changes 
to the paperwork or recordkeeping burden since the NPRM approval.

Federalism Implications

    The amendments in this final rule will not have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Therefore, in 
accordance with Executive Order 12612, the FAA has determined that this 
final rule does not have sufficient federalism implications to warrant 
preparation of a Federalism Assessment.

Regulatory Evaluation Summary

    The FAA has determined that this final rule is not a significant 
regulatory action under Executive Order 12866. The Agency has prepared 
a regulatory evaluation that analyzes the costs and benefits of this 
final rule. The FAA does not expect that this rule will have a 
significant economic effect on a substantial number of small entities 
under the criteria of the Regulatory Flexibility Act.
    A copy of the complete regulatory evaluation, regulatory 
flexibility determination, and international trade assessment has been 
placed in the docket. A copy may be obtained by contacting the office 
identified under FOR FURTHER INFORMATION CONTACT.

International Trade Impact Analysis

    The FAA finds that this rule will not have an adverse impact on 
trade opportunities for either U.S. firms doing business overseas or 
foreign firms doing business in the United States.

Significance

    This rule is not likely to result in an annual effect on the 
economy of $100 million or more, although it may result in a small 
increase in costs for consumers, industry, or Federal, State, or local 
agencies. The FAA has determined that the rule is not significant under 
the Executive Order 12866 and the Regulatory Policies and Procedures of 
the Department of Transportation (44 FR 11034; February 2, 1979).

List of Subjects

14 CFR Part 65

    Aircraft, Airmen, Air safety, Air transportation, Aviation safety, 
Drug abuse, Drugs, Narcotics, Safety, Transportation.

14 CFR Part 121

    Air carriers, Aircraft, Aircraft pilots, Airmen, Airplanes, Air 
transportation, Aviation safety, Drug abuse, Drugs, Narcotics, Pilots, 
Safety, Transportation.

14 CFR Part 135

    Air carriers, Aircraft, Aircraft pilots, Airmen, Airplanes, Air 
taxi, Air transportation, Aviation safety, Drug abuse, Drugs, 
Narcotics, Pilots, Safety, Transportation.

    In consideration of the foregoing, the Federal Aviation 
Administration is amending 14 CFR parts 65, 121, and 135 as follows:

PART 65--CERTIFICATION: AIRMEN OTHER THAN FLIGHT CREWMEMBERS

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

    Authority: 49 U.S.C. 1354(a), 1355, 1421, 1422, and 1427 
(revised, Pub. L. 102-143, October 28, 1991); 49 U.S.C. 106(g) 
(revised, Pub. L. 97-449, January 12, 1983).

    2. Section 65.46 is amended by revising paragraphs (a)(2) and (d), 
by removing paragraph (e), and redesignating paragraph (f) as paragraph 
(e) to read as follows:


Sec. 65.46  Use of prohibited drugs.

    (a) * * *
    (2) An ``employer'' means an air traffic control facility not 
operated by the FAA or by or under contract to the U.S. military that 
employs a person to perform an air traffic control function.
* * * * *
    (d) No employer shall knowingly use any person to perform, nor may 
any person perform for an employer, either directly or by contract, any 
air traffic control function if the person has a verified positive drug 
test result on or has refused to submit to a drug test required by 
appendix I to part 121 of this chapter and the person has not met the 
requirements of appendix I to part 121 of this chapter for returning to 
the performance of safety-sensitive duties.
* * * * *

PART 121--CERTIFICATION AND OPERATIONS: DOMESTIC, FLAG, AND 
SUPPLEMENTAL AIR CARRIERS AND COMMERCIAL OPERATORS OF LARGE 
AIRCRAFT

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

    Authority: 49 U.S.C. 1354(a), 1355, 1356, 1357, 1401, 1421-1430, 
1485, and 1502 (revised Pub. L. 102-143, October 28, 1991); 49 
U.S.C. 106(g) (revised, Pub. L. 97-449, January 12, 1983).

    4. Section 121.455 is amended by revising paragraph (c) and by 
removing paragraph (d) to read as follows:


Sec. 121.455  Use of prohibited drugs.

* * * * *
    (c) No certificate holder shall knowingly use any person to 
perform, nor shall any person perform for a certificate holder, either 
directly or by contract, any safety-sensitive function if the person 
has a verified positive drug test result on or has refused to submit to 
a drug test required by appendix I to part 121 of this chapter and the 
person has not met the requirements of appendix I for returning to the 
performance of safety-sensitive duties. -
    5. Appendix I is revised to read as follows:

Appendix I to Part 121--Drug Testing Program

    This appendix contains the standards and components that must be 
included in an antidrug program required by this chapter.
    I. DOT Procedures. Each employer shall ensure that drug testing 
programs conducted pursuant to 14 CFR parts 65, 121, and 135 complies 
with the requirements of this appendix and the ``Procedures for 
Transportation Workplace Drug Testing Programs'' published by the 
Department of Transportation (DOT) (49 CFR part 40). An employer may 
not use or contract with any drug testing laboratory that is not 
certified by the Department of Health and Human Services (DHHS) 
pursuant to the DHHS ``Mandatory Guidelines for Federal Workplace Drug 
Testing Programs'' (53 FR 11970; April 11, 1988 as amended by 59 FR 
29908; June 9, 1994).
    II. Definitions. For the purpose of this appendix, the following 
definitions apply:
    Accident means an occurrence associated with the operation of an 
aircraft which takes place between the time any person boards the 
aircraft with the intention of flight and all such persons have 
disembarked, and in which any person suffers death or serious injury, 
or in which the aircraft receives substantial damage.
    Annualized rate for the purposes of unannounced testing of 
employees based on random selection means the percentage of specimen 
collection and testing of employees performing a safety-sensitive 
function during a calendar year. The employer shall determine the 
annualized rate by referring to the total number of employees 
performing a safety-sensitive function for the employer at the 
beginning of the calendar year.
    Employee is a person who performs, either directly or by contract, 
a safety-sensitive function for an employer, as defined below. 
Provided, however, that an employee who works for an employer who holds 
a part 135 certificate and who holds a part 121 certificate is 
considered to be an employee of the part 121 certificate holder for the 
purposes of this appendix.
    Employer is a part 121 certificate holder, a part 135 certificate 
holder, an operator as defined in Sec. 135.1(c) of this chapter, or an 
air traffic control facility not operated by the FAA or by or under 
contract to the U.S. military. Provided, however, that an employer may 
use a person who is not included under that employer's drug program to 
perform a safety-sensitive function, if that person is subject to the 
requirements of another employer's FAA-approved antidrug program.
    Performing (a safety-sensitive function): an employee is considered 
to be performing a safety-sensitive function during any period in which 
he or she is actually performing, ready to perform, or immediately 
available to perform such function.
    Prohibited drug means marijuana, cocaine, opiates, phencyclidine 
(PCP), amphetamines, or a substance specified in Schedule I or Schedule 
II of the Controlled Substances Act, 21 U.S.C. 811, 812, unless the 
drug is being used as authorized by a legal prescription or other 
exemption under Federal, state, or local law.
    Refusal to submit means that an individual failed to provide a 
urine sample as required in 49 CFR part 40, without a valid medical 
explanation, after he or she has received notice of the requirement to 
be tested in accordance with this appendix or engaged in conduct that 
clearly obstructed the testing process.
    Safety-sensitive function means a function listed in section III of 
this appendix.
    Substance abuse professional means a licensed physician (Medical 
Doctor or Doctor of Osteopathy), or a licensed or certified 
psychologist, social worker, employee assistance professional, or 
addiction counselor (certified by the National Association of 
Alcoholism and Drug Abuse Counselors Certification Commission), with 
knowledge of and clinical experience in the diagnosis and treatment of 
disorders related to drug use and abuse.
    Verified negative drug test result means that the test result of a 
urine sample collected and tested under this appendix has been verified 
by a Medical Review Officer as negative in accordance with 49 CFR part 
40.
    Verified positive drug test result means that the test result of a 
urine sample collected and tested under this appendix has been verified 
by a Medical Review Officer as positive in accordance with 49 CFR part 
40.
    III. Employees Who Must Be Tested. Each person who performs a 
safety-sensitive function directly or by contract for an employer must 
be tested pursuant to an FAA-approved antidrug program conducted in 
accordance with this appendix:
    A. Flight crewmember duties.
    B. Flight attendant duties.
    C. Flight instruction duties.
    D. Aircraft dispatcher duties.
    E. Aircraft maintenance or preventive maintenance duties.
    F. Ground security coordinator duties.
    G. Aviation screening duties.
    H. Air traffic control duties.
    IV. Substances for Which Testing Must Be Conducted. Each employer 
shall test each employee who performs a safety-sensitive function for 
evidence of marijuana, cocaine, opiates, phencyclidine (PCP), and 
amphetamines during each test required by section V of this appendix. 
As part of a reasonable cause drug testing program established pursuant 
to this part, employers may test for drugs in addition to those 
specified in this part only with approval granted by the FAA under 49 
CFR part 40 and for substances for which the Department of Health and 
Human Services has established an approved testing protocol and 
positive threshold.
    V. Types of Drug Testing Required. Each employer shall conduct the 
following types of testing in accordance with the procedures set forth 
in this appendix and the DOT ``Procedures for Transportation Workplace 
Drug Testing Programs'' (49 CFR part 40):
    A. Pre-employment Testing.
    1. Prior to the first time an individual performs a safety-
sensitive function for an employer, the employer shall require the 
individual to undergo testing for prohibited drug use.
    2. An employer is permitted to require pre-employment testing of an 
individual if the following criteria are met:
    (a) The individual previously performed a covered function for the 
employer;
    (b) The employer removed the individual from the employer's random 
testing program conducted under this appendix for reasons other than a 
verified positive test result on an FAA-mandated drug test or a refusal 
to submit to such testing; and
    (c) The individual will be returning to the performance of a 
safety-sensitive function.
    3. No employer shall allow an individual required to undergo pre-
employment testing under section V, paragraphs A.1 or A.2 of this 
appendix to perform a safety-sensitive function unless the employer has 
received a verified negative drug test result for the individual.
    4. The employer shall advise each individual applying to perform a 
safety-sensitive function at the time of application that the 
individual will be required to undergo pre-employment testing to 
determine the presence of marijuana, cocaine, opiates, phencyclidine 
(PCP), and amphetamines, or a metabolite of those drugs in the 
individual's system. The employer shall provide this same notification 
to each individual required by the employer to undergo pre-employment 
testing under section V, paragraph A.(2) of this appendix.
    B. Periodic Testing. Each employee who performs a safety-sensitive 
function for an employer and who is required to undergo a medical 
examination under part 67 of this chapter shall submit to a periodic 
drug test. The employee shall be tested for the presence of marijuana, 
cocaine, opiates, phencyclidine (PCP), and amphetamines, or a 
metabolite of those drugs during the first calendar year of 
implementation of the employer's antidrug program. The tests shall be 
conducted in conjunction with the first medical evaluation of the 
employee or in accordance with an alternative method for collecting 
periodic test specimens detailed in an employer's approved antidrug 
program. An employer may discontinue periodic testing of its employees 
after the first calendar year of implementation of the employer's 
antidrug program when the employer has implemented an unannounced 
testing program based on random selection of employees.
    C. Random Testing. Each employer shall randomly select employees 
who perform a safety-sensitive function for the employer for 
unannounced drug testing. The employer shall randomly select employees 
for unannounced testing for the presence of marijuana, cocaine, 
opiates, phencyclidine (PCP), and amphetamines, or a metabolite of 
those drugs in an employee's system using a random number table or a 
computer-based, number generator that is matched with an employee's 
social security number, payroll identification number, or any other 
alternative method approved by the FAA.
    (1) During the first 12 months following implementation of 
unannounced testing based on random selection pursuant to this 
appendix, an employer shall meet the following conditions:
    (a) The unannounced testing based on random selection of employees 
shall be spread reasonably throughout the 12-month period.
    (b) The last collection of specimens for random testing during the 
year shall be conducted at an annualized rate equal to not less than 50 
percent of employees performing a safety-sensitive function.
    (c) The total number of unannounced tests based on random selection 
during the 12 months shall be equal to not less than 25 percent of the 
employees performing a safety-sensitive function.
    (2) Following the first 12 months, an employer shall achieve and 
maintain an annualized rate equal to not less than 50 percent of 
employees performing a safety-sensitive function.
    D. Post-accident Testing. Each employer shall test each employee 
who performs a safety-sensitive function for the presence of marijuana, 
cocaine, opiates, phencyclidine (PCP), and amphetamines, or a 
metabolite of those drugs in the employee's system if that employee's 
performance either contributed to an accident or can not be completely 
discounted as a contributing factor to the accident. The employee shall 
be tested as soon as possible but not later than 32 hours after the 
accident. The decision not to administer a test under this section must 
be based on a determination, using the best information available at 
the time of the determination, that the employee's performance could 
not have contributed to the accident. The employee shall submit to 
post-accident testing under this section.
    E. Testing Based on Reasonable Cause. Each employer shall test each 
employee who performs a safety-sensitive function and who is reasonably 
suspected of using a prohibited drug. Each employer shall test an 
employee's specimen for the presence of marijuana, cocaine, opiates, 
phencyclidine (PCP), and amphetamines, or a metabolite of those drugs. 
An employer may test an employee's specimen for the presence of other 
prohibited drugs or drug metabolites only in accordance with this 
appendix and the DOT ``Procedures for Transportation Workplace Drug 
Testing Programs'' (49 CFR part 40). At least two of the employee's 
supervisors, one of whom is trained in detection of the symptoms of 
possible drug use, shall substantiate and concur in the decision to 
test an employee who is reasonably suspected of drug use; provided, 
however, that in the case of an employer other than a part 121 
certificate holder who employs 50 or fewer employees who perform 
safety-sensitive functions, one supervisor who is trained in detection 
of symptoms of possible drug use shall substantiate the decision to 
test an employee who is reasonably suspected of drug use. The decision 
to test must be based on a reasonable and articulable belief that the 
employee is using a prohibited drug on the basis of specific 
contemporaneous physical, behavioral, or performance indicators of 
probable drug use.
    F. Return to Duty Testing. Each employer shall ensure that before 
an individual is returned to duty to perform a safety-sensitive 
function after refusing to submit to a drug test required by this 
appendix or receiving a verified positive drug test result on a test 
conducted under this appendix the individual shall undergo a drug test. 
No employer shall allow an individual required to undergo return to 
duty testing to perform a safety-sensitive function unless the employer 
has received a verified negative drug test result for the individual.
    G. Follow-up Testing. Each employer shall implement a reasonable 
program of unannounced testing of each individual who has been hired to 
perform or who has been returned to the performance of a safety-
sensitive function after refusing to submit to a drug test required by 
this appendix or receiving a verified positive drug test result on a 
test conducted under this appendix.
    2. The number and frequency of such testing shall be determined by 
the employer's Medical Review Officer. In the case of any individual 
evaluated under this appendix and determined to be in need of 
assistance in resolving problems associated with illegal use of drugs, 
follow-up testing shall consist of at least six tests in the first 12 
months following the employee's return to duty.
    3. The employer may direct the employee to undergo testing for 
alcohol, in addition to drugs, if the Medical Review Officer determines 
that alcohol testing is necessary for the particular employee. Any such 
alcohol testing shall be conducted in accordance with the provisions of 
49 CFR part 40.
    4. Follow-up testing shall not exceed 60 months after the date the 
individual begins to perform or returns to the performance of a safety-
sensitive function. The Medical Review Officer may terminate the 
requirement for follow-up testing at any time after the first six tests 
have been conducted, if the Medical Review Officer determines that such 
testing is no longer necessary.

VI. Administrative and Other Matters

    A. Collection, Testing, and Rehabilitation Records. Each employer 
shall maintain all records related to the collection process, including 
all logbooks and certification statements, for two years. Each employer 
shall maintain records of employee confirmed positive drug test 
results, SAP evaluations, and employee rehabilitation for five years. 
The employer shall maintain records of negative test results for 12 
months. The employer shall permit the Administrator or the 
Administrator's representative to examine these records.
    B. Laboratory Inspections. The employer shall contract only with a 
laboratory that permits pre-award inspections by the employer before 
the laboratory is awarded a testing contract and unannounced 
inspections, including examination of any and all records at any time 
by the employer, the Administrator, or the Administrator's 
representative.
    C. Employee Request for Test of a Split Specimen. Not later than 72 
hours after receipt of notice of a verified positive test result, an 
employee may request that the MRO arrange for testing of the second, 
``split'' specimen obtained during the collection of the primary 
specimen that resulted in the confirmed positive test result.
    2. The split specimen shall be tested in accordance with the 
procedures in 49 CFR part 40.
    3. The MRO shall not delay verification of the primary test result 
following a request for a split specimen test unless such delay is 
based on reasons other than the pendency of the split specimen test 
result. If the primary test result is verified as positive, actions 
required under this rule (e.g., notification to the Federal Air 
Surgeon, removal from safety-sensitive position) are not stayed during 
the 72-hour request period or pending receipt of the split specimen 
test result.
    D. Release of Drug Testing Information. An employer shall release 
information regarding an employee's drug testing results, evaluation, 
or rehabilitation to a third party in accordance with the specific, 
written consent of the employee authorizing release of the information 
to an identified person, to the National Transportation Safety Board as 
part of an accident investigation upon written request or order, to the 
FAA upon request, or as required by this appendix. Except as required 
by law or this appendix, no employer shall release employee 
information.
    E. Refusal To Submit to Testing. Each employer shall notify the FAA 
within 5 working days of any employee who holds a certificate issued 
under part 61, part 63, or part 65 of this chapter who has refused to 
submit to a drug test required under this appendix. Notification should 
be sent to: Federal Aviation Administration, Aviation Standards 
National Field Office, Airmen Certification Branch, AVN-460, P.O. Box 
25082, Oklahoma City, OK 73125.
    2. Employers are not required to notify the above office of 
refusals to submit to pre-employment or return to duty testing.
    F. Permanent Disqualification From Service. An employee who has 
verified positive drug test results on two drug tests required by 
appendix I to part 121 of this chapter and conducted after September 
19, 1994 is permanently precluded from performing for an employer the 
safety-sensitive duties the employee performed prior to the second drug 
test.
    2. An employee who has engaged in prohibited drug use during the 
performance of a safety-sensitive function after September 19, 1994 is 
permanently precluded from performing that safety-sensitive function 
for an employer.

VII. Medical Review Officer/Substance Abuse Professional -

    The employer shall designate or appoint a Medical Review Officer 
(MRO) who shall be qualified in accordance with 49 CFR part 40 and 
shall perform the functions set forth in 49 CFR part 40 and this 
appendix. If the employer does not have a qualified individual on staff 
to serve as MRO, the employer may contract for the provision of MRO 
services as part of its drug testing program.
    A. MRO and Substance Abuse Professional Duties. In addition to the 
functions delineated in 49 CFR part 40, the MRO shall perform the 
duties listed hereunder.
    1. During the MRO's interview with an employee or applicant who has 
had a confirmed positive drug test result, the MRO shall inquire, and 
the individual must disclose, whether the individual holds an airman 
medical certificate issued under part 67 of this chapter or, if an 
applicant, would be required to hold such certificate in order to 
perform the duties of the position for which the applicant is applying.
    2. The MRO must process employee requests for testing of split 
specimens in accordance with section VI, paragraph C, of this appendix.
    3. The MRO shall advise each employee who receives a verified 
positive drug test result on or refuses to submit to a drug test 
required under this appendix of the resources available to the employee 
in evaluating and resolving problems associated with illegal use of 
drugs, including the names, addresses, and telephone numbers of 
substance abuse professionals (SAP) and counseling and treatment 
programs.
    4. The MRO shall ensure that each employee who receives a verified 
positive drug test result on or refuses to submit to a drug test 
required under this appendix is evaluated by a SAP to determine if the 
employee is in need of assistance in resolving problems associated with 
illegal use of drugs. The MRO may perform this evaluation if the MRO is 
qualified as a SAP.
    5. Prior to recommending that an employee be returned to the 
performance of a safety-sensitive function after the employee has 
received a verified positive drug test result on or refused to submit 
to a drug test required by this appendix, the MRO shall--
    a. Ensure that an employee returning to the performance of a 
safety-sensitive function has received a return to duty verified 
negative drug test result on a test conducted under section V., 
paragraph F of this appendix;
    b. Ensure that each employee has been evaluated in accordance with 
section VII, paragraph A.4 of this appendix; and-
    c. Ensure that the employee demonstrates compliance with any 
rehabilitation program recommended following the evaluation required 
under section VII, paragraph A.4 of this appendix.
    6. Prior to recommending that an individual be hired to perform a 
safety-sensitive function after such individual has received a verified 
positive drug test result on a pre-employment test or has refused to 
submit to a pre-employment drug test required by this appendix, the MRO 
shall--
    a. Ensure that an individual has received a verified negative drug 
test result on a subsequent pre-employment test conducted under section 
V, paragraph A, of this appendix;
    b. Evaluate the individual (if the MRO is qualified to be a SAP), 
or have the individual evaluated by a SAP, for drug use or abuse; and
    c. Ensure that the individual has complied with the requirements of 
any rehabilitation program in which the individual participated 
following the verified positive pre-employment drug test result or the 
refusal to submit to a pre-employment test.
    7. The MRO shall not recommend that a person who fails to satisfy 
the requirements in section VII, paragraph A.5 or A.6 of this appendix 
be hired to perform or returned to duty to perform a safety-sensitive 
function.
    B. MRO Determinations. In the case of an employee or applicant who 
holds an airman medical certificate issued under part 67 of this 
chapter, or who is or would be required to hold such certificate in 
order to perform a safety-sensitive function for an employer, the MRO 
shall take the following actions after verifying a positive drug test 
result.
    1. In addition to the evaluation required in section VII, paragraph 
A.4 of this appendix, the MRO shall make a determination of probable 
drug dependence or nondependence as specified in part 67 of this 
chapter within 10 working days of verifying the test result. If the MRO 
is unable to make such a determination, he or she should so state in 
the individual's records.
    2. If the MRO determines that an individual is nondependent, the 
MRO may recommend that the individual be returned to duty or hired to 
perform safety-sensitive functions subject to the requirements of 
section VII, paragraph A.5 of this appendix. If the MRO makes a 
determination of probable drug dependence or cannot make a dependency 
determination, the MRO shall not recommend that the individual be 
returned to duty unless and until such individual has been found 
nondependent by or has received a special issuance medical certificate 
from the Federal Air Surgeon.
    3. After making the determinations in section VII, paragraphs B.1 
and B.2 of this appendix, the MRO must forward the names of such 
individuals with identifying information, the determinations concerning 
dependence, SAP evaluation (if available), return to duty 
recommendations, and any supporting information to the Federal Air 
Surgeon within 12 working days after verifying the positive drug test 
result of such individuals.
    4. All reports required under this section shall be forwarded to 
the Federal Air Surgeon, Federal Aviation Administration, Attn: Drug 
Abatement Division (AAM-800), 400 7th Street, SW., Washington, DC 
20590.
    C. MRO Records. Each MRO shall maintain records concerning drug 
tests performed under this rule in accordance with the following 
provisions:
    1. All records shall be maintained in confidence and shall be 
released only in accordance with the provisions of this rule and 49 CFR 
part 40.
    2. Records concerning drug tests confirmed positive by the 
laboratory shall be maintained for 5 years. Such records include the 
MRO copies of the custody and control form, medical interviews, 
documentation of the basis for verifying as negative test results 
confirmed as positive by the laboratory, any other documentation 
concerning the MRO's verification process, and copies of dependency 
determinations where applicable.
    3. Records of confirmed negative test results shall be maintained 
for 12 months.
    4. All records maintained pursuant to this rule by each MRO are 
subject to examination by the Administrator or the Administrator's 
representative at any time.
    5. Should the employer change MROs for any reason, the employer 
shall ensure that the former MRO forwards all records maintained 
pursuant to this rule to the new MRO within 10 working days of 
receiving notice from the employer of the new MRO's name and address.
    6. Any employer obtaining MRO services by contract, including a 
contract through a consortium, shall ensure that the contract includes 
a recordkeeping provision that is consistent with this paragraph, 
including requirements for transferring records to a new MRO.
    D. Evaluations and Referrals. Each employer shall ensure that a 
substance abuse professional, including an MRO if he/she is qualified 
as a substance abuse professional, who determines that a covered 
employee requires assistance in resolving problems associated with 
illegal use of drugs does not refer the employee to the substance abuse 
professional's private practice or to a person or organization from 
which the substance abuse professional receives remuneration or in 
which the substance abuse professional has a financial interest. This 
paragraph does not prohibit a substance abuse professional from 
referring an employee for assistance provided through--
    1. A public agency, such as a State, county, or municipality;
    2. The employer or a person under contract to provide treatment for 
drug problems on behalf of the employer;
    3. The sole source of therapeutically appropriate treatment under 
the employee's health insurance program; or
    -4. The sole source of therapeutically appropriate treatment 
reasonably accessible to the employee.

VIII. Employee Assistance Program (EAP)

     The employer shall provide an EAP for employees. The employer may 
establish the EAP as a part of its internal personnel services or the 
employer may contract with an entity that will provide EAP services to 
an employee. Each EAP must include education and training on drug use 
for employees and training for supervisors making determinations for 
testing of employees based on reasonable cause.
    A. EAP Education Program. Each EAP education program must include 
at least the following elements: display and distribution of 
informational material; display and distribution of a community service 
hot-line telephone number for employee assistance; and display and 
distribution of the employer's policy regarding drug use in the 
workplace. The employer's policy shall include information regarding 
the consequences under the rule of using drugs while performing safety-
sensitive functions, receiving a verified positive drug test result, or 
refusing to submit to a drug test required under the rule.
    B. EAP Training Program. Each employer shall implement a reasonable 
program of initial training for employees. The employee training 
program must include at least the following elements: The effects and 
consequences of drug use on personal health, safety, and work 
environment; the manifestations and behavioral cues that may indicate 
drug use and abuse; and documentation of training given to employees 
and employer's supervisory personnel. The employer's supervisory 
personnel who will determine when an employee is subject to testing 
based on reasonable cause shall receive specific training on specific, 
contemporaneous physical, behavioral, and performance indicators of 
probable drug use in addition to the training specified above. The 
employer shall ensure that supervisors who will make reasonable cause 
determinations receive at least 60 minutes of initial training. The 
employer shall implement a reasonable recurrent training program for 
supervisory personnel making reasonable cause determinations during 
subsequent years. The employer shall identify the employee and 
supervisor EAP training in the employer's drug testing plan submitted 
to the FAA for approval.

IX. Employer's Antidrug Program Plan

    A. Schedule for Submission of Plans and Implementation. Each 
employer shall submit an antidrug program plan to the Federal Aviation 
Administration, Office of Aviation Medicine, Drug Abatement Division 
(AAM-800), 400 7th Street, SW., Washington, DC 20590.
    2. (a) Any person who applies for a certificate under the 
provisions of part 121 or part 135 of this chapter after September 19, 
1994 shall submit an antidrug program plan to the FAA for approval and 
must obtain such approval prior to beginning operations under the 
certificate. The program shall be implemented not later than the date 
of inception of operations. Contractor employees to a new certificate 
holder must be subject to an FAA-approved antidrug program within 60 
days of the implementation of the employer's program.
    (b) Any person who intends to begin sightseeing operations as an 
operator under 14 CFR 135.1(c) after September 19, 1994 shall, not 
later than 60 days prior to the proposed initiation of such operations, 
submit an antidrug program plan to the FAA for approval. No operator 
may begin conducting sightseeing flights prior to receipt of approval; 
the program shall be implemented concurrently with the inception of 
operations. Contractor employees to a new operator must be subject to 
an FAA-approved program within 60 days of the implementation of the 
employer's program.
    (c) Any person who intends to begin air traffic control operations 
as an employer as defined in 14 CFR 65.46(a)(2) (air traffic control 
facilities not operated by the FAA or by or under contract to the U.S. 
military) after September 19, 1994 shall, not later than 60 days prior 
to the proposed initiation of such operations, submit an antidrug 
program plan to the FAA for approval. No air traffic control facility 
may begin conducting air traffic control operations prior to receipt of 
approval; the program shall be implemented concurrently with the 
inception of operations. Contractor employees to a new air traffic 
control facility must be subject to an FAA-approved program within 60 
days of the implementation of the facility's program.
    3. In accordance with this appendix, an entity or individual that 
holds a repair station certificate issued by the FAA pursuant to part 
145 of this chapter and employs individuals who perform a safety-
sensitive function pursuant to a primary or direct contract with an 
employer or an operator may submit an antidrug program plan (specifying 
the procedures for complying with this appendix) to the FAA for 
approval. Each certificated repair station shall implement its approved 
antidrug program in accordance with its terms.
    4. Any entity or individual whose employees perform safety-
sensitive functions pursuant to a contract with an employer (as defined 
in section II of this appendix), and any consortium may submit an 
antidrug program plan to the FAA for approval on a form and in a manner 
prescribed by the Administrator.
    (a) The plan shall specify the procedures that will be used to 
comply with the requirements of this appendix.
    (b) Each consortium program must provide for reporting changes in 
consortium membership to the FAA within 10 working days of such 
changes.
    (c) Each contractor or consortium shall implement its antidrug 
program in accordance with the terms of its approved plan.
    5. Each air traffic control facility operating under contract to 
the FAA shall submit an antidrug program plan to the FAA (specifying 
the procedures for all testing required by this appendix) not later 
than November 17, 1994. Each facility shall implement its antidrug 
program not later than 60 days after approval of the program by the 
FAA. Employees performing air traffic control duties by contract for 
the air traffic control facility (i.e., not directly employed by the 
facility) must be subject to an FAA-approved antidrug program within 60 
days of implementation of the air traffic control facility's program.
    6. Each employer, or contractor company that has submitted an 
antidrug plan directly to the FAA, shall ensure that it is continuously 
covered by an FAA-approved antidrug program, and shall obtain 
appropriate approval from the FAA prior to changing problems (e.g., 
joining another carrier's program, joining a consortium, or 
transferring to another consortium).
    B. An employer's antidrug plan must specify the methods by which 
the employer will comply with the testing requirements of this 
appendix. The plan must provide the name and address of the laboratory 
which has been selected by the employer for analysis of the specimens 
collected during the employer's antidrug testing program.
    C. An employer's antidrug plan must specify the procedures and 
personnel the employer will use to ensure that a determination is made 
as to the veracity of test results and possible legitimate explanations 
for an employee receiving a verified positive drug test result.
    D. The employer shall consider its antidrug program to be approved 
by the Administrator, unless notified to the contrary by the FAA, 
within 60 days after submission of the plan to the FAA.

X. Reporting of Antidrug Program Results

    A. Annual reports of antidrug program results shall be submitted to 
the FAA in the form and manner prescribed by the Administrator by March 
15 of the succeeding calendar year for the prior calendar year (January 
1 through December 31) in accordance with the provisions below.
    1. Each part 121 certificate holder shall submit an annual report 
each year.
    2. Each entity conducting an antidrug program under an FAA-approved 
antidrug plan, other than a part 121 certificate holder, that has 50 or 
more employees performing a safety-sensitive function on January 1 of 
any calendar year shall submit an annual report to the FAA for that 
calendar year.
    3. The Administrator reserves the right to require that aviation 
employers not otherwise required to submit annual reports prepare and 
submit such reports to the FAA. Employers that will be required to 
submit annual reports under this provision will be notified in writing 
by the FAA.
    B. Each report shall be submitted in the form and manner prescribed 
by the Administrator. No other form, including another DOT Operating 
Administration's form, is acceptable for submission to the FAA.
    C. Each report shall be signed by the employer's antidrug program 
manager or other designated representative.
    D. Each report with verified positive drug test results shall 
include all of the following informational elements:
    1. Number of covered employees by employee category.
    2. Number of covered employees affected by the antidrug rule of 
another operating administration identified and reported by number and 
employee category.
    3. Number of specimens collected by type of test and employee 
category.
    4. Number of positive drug test results verified by a Medical 
Review Officer (MRO) by type of test, type of drug, and employee 
category.
    5. Number of negative drug test results reported by an MRO by type 
of test and employee category.
    6. Number of persons denied a safety-sensitive position based on a 
verified positive pre-employment drug test result reported by an MRO.
    7. Action taken following a verified positive drug test result(s), 
by type of action.
    8. Number of employees returned to duty during the reporting period 
after having received a verified positive drug test result on or 
refused to submit to a drug test required under the FAA rule.
    9. Number of employees by employee category with tests verified 
positive for multiple drugs by an MRO.
    10. Number of employees who refused to submit to a drug test and 
the action taken in response to the refusal(s).
    11. Number of covered employees who have received required initial 
training.
    12. Number of supervisory personnel who have received required 
initial training.
    13. Number of supervisors who have received required recurrent 
training.
    E. Each report with only negative drug test results shall include 
all of the following informational elements. (This report may only be 
submitted by employers with no verified positive drug test results 
during the reporting year.)
    1. Number of covered employees by employee category.
    2. Number of covered employees affected by the antidrug rule of 
another operating administration identified and reported by number and 
employee category.
    3. Number of specimens collected by type of test and employee 
category.
    4. Number of negative tests reported by an MRO by type of test and 
employee category.
    5. Number of employees who refused to submit to a drug test and the 
action taken in response to the refusal(s).
    6. Number of employees returned to duty during the reporting period 
after having received a verified positive drug test result on or 
refused to submit to a drug test required under the FAA rule.
    7. Number of covered employees who have received required initial 
training.
    8. Number of supervisory personnel who have received required 
initial training.
    9. Number of supervisors who have received required recurrent 
training.
    F. An FAA-approved consortium may prepare reports on behalf of 
individual aviation employers for purposes of compliance with this 
reporting requirement. However, the aviation employer shall sign and 
submit such a report and shall remain responsible for ensuring the 
accuracy and timeliness of each report prepared on its behalf by a 
consortium.

XI. Preemption

    A. The issuance of 14 CFR parts 65, 121, and 135 by the FAA 
preempts any state or local law, rule, regulation, order, or standard 
covering the subject matter of 14 CFR parts 65, 121, and 135, including 
but not limited to, drug testing of aviation personnel performing 
safety-sensitive functions.
    B. The issuance of 14 CFR parts 65, 121, and 135 does not preempt 
provisions of state criminal law that impose sanctions for reckless 
conduct of an individual that leads to actual loss of life, injury, or 
damage to property whether such provisions apply specifically to 
aviation employees or generally to the public.

XII. Employees Located Outside the Territory of the United States

    A. No individual shall undergo a drug test required under the 
provisions of this appendix while located outside the territory of the 
United States.
    1. Each employee who is assigned to perform safety-sensitive 
functions solely outside the territory of the United States shall be 
removed from the random testing pool upon the inception of such 
assignment.
    2. Each covered employee who is removed from the random testing 
pool under this paragraph A shall be returned to the random testing 
pool when the employee resumes the performance of safety-sensitive 
functions wholly or partially within the territory of the United 
States.
    B. The provisions of this appendix shall not apply to any person 
who performs a function listed in section III of this appendix by 
contract for an employer outside the territory of the United States.

PART 135--AIR TAXI OPERATORS AND COMMERCIAL OPERATORS

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

    Authority: 49 U.S.C. 1354(a), 1355(a), 1421-1431, and 1502 
(revised Pub. L. 102-143, October 28, 1991); 49 U.S.C. 106(g) 
(revised Pub. L. 97-449, January 12, 1983).

    7. Section 135.249 is amended by revising paragraph (c) and by 
removing paragraph (d) to read as follows:


Sec. 135.249  Use of prohibited drugs.

* * * * *
    (c) No certificate holder or operator shall knowingly use any 
person to perform, nor shall any person perform for a certificate 
holder or operator, either directly or by contract, any safety-
sensitive function if the person has a verified positive drug test 
result on or has refused to submit to a drug test required by appendix 
I to part 121 of this chapter and the person has not met the 
requirements of appendix I to part 121 of this chapter for returning to 
the performance of safety-sensitive duties.

    Issued in Washington, DC, on August 12, 1994.
David R. Hinson,
Administrator.

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

Exhibits--FAA Drug Testing Management Information System Data 
Collection Forms

BILLING CODE 4910-13-P

TR19AU94.019


TR19AU94.020


TR19AU94.021


TR19AU94.022


TR19AU94.023


TR19AU94.024


TR19AU94.025


TR19AU94.026


TR19AU94.027


TR19AU94.028


TR19AU94.029


TR19AU94.030


TR19AU94.031


TR19AU94.032


TR19AU94.033


----- - ---------[FR Doc. 94-20237 Filed 8-15-94; 4:48 pm]
BILLING CODE 4910-13-C