[Federal Register Volume 66, Number 83 (Monday, April 30, 2001)]
[Proposed Rules]
[Pages 21494-21502]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-9410]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 121

[Docket No. FAA-2000-8431; Notice No. 00-14]
RIN 2120-AH15


Antidrug and Alcohol Misuse Prevention Programs for Personnel 
Engaged in Specified Aviation Activities

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: This action proposes amendments to the industry drug 
and alcohol testing regulations to conform with the changes in the 
Department of Transportation's revision of its drug and alcohol testing 
procedures regulation, Procedures for Transportation Workplace Drug and 
Alcohol Testing Programs. We also propose to change the antidrug and 
alcohol misuse prevention program regulations in light of the 
amendments that have been made to the medical standards and 
certification requirements. We further propose eliminating certain 
requirements under reasonable suspicion and post-accident alcohol 
testing because these requirements are outdated and no longer valid. 
These

[[Page 21495]]

proposals are intended to update and clarify the regulations based on 
the Department of Transportation's revisions and previous FAA 
rulemakings.

DATES: Send your comments on or before June 14, 2001.

ADDRESSES: Address your comments to the Docket Management 
System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh 
Street, SW., Washington, DC 20590-0001. You must identify the docket 
number FAA-2000-8431 at the beginning of your comments, and you should 
submit two copies of your comments. If you wish to receive confirmation 
that FAA received your comments, include a self-addressed, stamped 
postcard.
    You may also submit comments through the Internet to http://dms.dot.gov. You may review the public docket containing comments 
to these proposed regulations in person in the Dockets Office between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The 
Dockets Office is on the plaza level of the NASSIF Building at the 
Department of Transportation at the above address. Also, you may review 
public dockets on the Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Diane J. Wood, Manager, Drug 
Abatement Division, AAM-800, Office of Aviation Medicine, Federal 
Aviation Administration, Washington, DC 20591, telephone number (202) 
267-8442.

SUPPLEMENTARY INFORMATION:

Comments Invited

    Interested parties are invited to participate in this proposed 
rulemaking by submitting such written data, views, or arguments, as 
they may desire. Comments relating to the environmental, energy, 
federalism, or economic impact that might result from adopting the 
proposals in this document are also invited. Substantive comments 
should be accompanied by cost estimates. Comments must identify the 
regulatory docket or notice number and be submitted in duplicate to the 
DOT Rules Docket address specified above.
    All comments received, as well as a report summarizing each 
substantive public contact with FAA personnel concerning this proposed 
rulemaking, will be filed in the docket. The docket is available for 
public inspection before and after the comment closing date.
    The Administrator will consider all comments received on or before 
the closing date before taking action on this proposed rulemaking. 
Comments filed late will be considered as far as possible without 
incurring expense or delay. The proposals in this document may be 
changed in light of the comments received.
    Commentators wishing the FAA to acknowledge receipt of their 
comments submitted in response to this document must include a pre-
addressed, stamped postcard with those comments on which the following 
statement is made: ``Comments to Docket No. FAA-2000-8431.'' The 
postcard will be date stamped and mailed to the commenter.

Availability of Rulemaking Documents

    You can get an electronic copy of this document using the Internet 
by taking the following steps:
    (1) Go to the search function of the Department of Transportation's 
electronic Docket Management System (DMS) web page (http://dms.dot.gov/search).
    (2) On the search page type in the last four digits of the Docket 
number shown at the beginning of this notice. Click on ``search.''
    (3) On the next page, which contains the Docket summary information 
for the Docket you selected, click on the document number of the item 
you wish to view. You can also get an electronic copy using the 
Internet through FAA's web page at http://www.faa.gov/avr/arm/nprm/nprm.htm or the Federal Register's web page at http://
www.access.gpo.gov/su_docs/aces/aces140.html.
    You can also get a copy by submitting a request to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Make 
sure to identify the docket number, notice number, or amendment number 
of this rulemaking.

Background

    On April 29, 1996, the Department of Transportation issued an 
advance notice of proposed rulemaking (ANPRM) (61 FR 18713) asking for 
suggestions in changing 49 CFR part 40, Procedures for Transportation 
Workplace Drug and Alcohol Testing Programs. Subsequently, on December 
9, 1999, a notice of proposed rulemaking (NPRM) (64 FR 69076) was 
issued proposing a comprehensive revision to 49 CFR part 40. The 
Department of Transportation (DOT) published its final rule on December 
19, 2000 (65 FR 79462). As a consequence of the DOT's action, the FAA 
is proposing to amend its drug and alcohol testing regulations to 
integrate, as appropriate, the new DOT procedures.
    In addition, on March 19, 1996, the FAA published a final rule, 
Revision of Airman's Medical Standards and Certification Procedures and 
Duration of Medical Certificates (54 FR 11238). This final rule amended 
requirements for 14 CFR part 67 medical certificate holders. Since the 
publication of this final rule the FAA has identified some 
inconsistencies between 14 CFR part 121 and 14 CFR part 67 that require 
modification. Changes in 14 CFR part 121 are being proposed at this 
time because the revision of 49 CFR part 40 is causing modifications to 
the portions of 14 CFR part 121 that are not consistent with the 1996 
changes to 14 CFR part 67. Rather than reissuing inconsistent 
provisions in 14 CFR part 121, appendices I and J, this notice proposes 
to update the regulations consistent with 14 CFR part 67.
    Two sections of 14 CFR part 121, appendix J, refer to a requirement 
for employers to submit information to the FAA on March 15, 1996, 1997, 
and 1998. Specifically, 14 CFR part 121, appendix J, sections 
III.B.2(b) and III.D.4(b) require employers to submit to the FAA notice 
of any post-accident test or reasonable suspicion test that was not 
completed within the eight hour period required for such tests. The 
reporting requirements were imposed only for the first three years 
after the final rule on alcohol misuse prevention became effective. 
Those requirements have expired, therefore we propose to eliminate 
those paragraphs.

The Common Preamble

    A common preamble to all of the modal NPRMs proposing changes to 
the drug and alcohol testing rules is being published in the same issue 
of this Federal Register with this NPRM. This common preamble 
contains an overview of general issues related to drug and alcohol 
testing requirements in the transportation industry.

Section by Section Analysis

    The following discusses only those portions of 14 CFR part 121, 
appendices I and J, which the FAA is proposing to change.

Appendix I

I. General

    By this action FAA proposes to add a ``General'' section (I. 
General) and a ``Purpose'' section (A. Purpose) to the beginning of 
14 CFR part 121, appendix I for clarity and organizational purposes. 
This section would include paragraph ``B. DOT Procedures'' and 
paragraph ``C. Employer Responsibility.'' These proposed changes are 
necessary to clarify the responsibility of employers to follow the 
requirements and procedures of this appendix and 49 CFR part 40. 
These proposed changes also reinforce that employers are responsible 
for all actions

[[Page 21496]]

of their officials, representatives, and service agents in carrying 
out the requirements of 14 CFR part 121, appendix I and 49 CFR part 
40.

II. Definitions

    This action proposes to change the definition of ``prohibited 
drug'' to limit the definition to the five drugs that are prohibited 
under 49 CFR 40.85. In addition we propose adding the phrase 
``except as permitted in 49 CFR part 40.'' The current language in 
14 CFR part 121, appendix I, could be misread to mean that the use 
of certain prohibited drugs is permitted if authorized under state 
law (such as medical use of marijuana that may be recommended or 
prescribed by physicians in certain states that have legalized its 
use for the treatment of some conditions). We expect that the 
proposed changes would eliminate any such confusion.
    We propose to change the definition of ``refusal to submit'' to 
refer to 49 CFR part 40. This would be a clarifying change.
    In addition, we propose to change the definitions in 14 CFR part 
121, appendix I for ``verified negative test result'' and ``verified 
positive test result.'' These definitions are necessary because 
these terms are used in this appendix. The proposed definitions are 
intended to be consistent with the broader language for verified 
tests used in 49 CFR 40.3.

IV. Substances for Which Testing Must Be Conducted

    This action proposes eliminating the second sentence of this 
section because it allows the employer to test for drugs in addition 
to those specified in 14 CFR part 121, appendix I with approval of 
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. This action is proposed because 49 CFR 40.85 
prohibits testing for additional drugs.

V. Types of Drug Testing

    F. Return-to-Duty Testing. This action proposes to change the 
requirements of return to duty testing to conform with 49 CFR part 
40, which requires the Substance Abuse Professional (SAP), not the 
Medical Review Officer (MRO), to determine that the employee has 
successfully complied with the prescribed education and/or treatment 
prior to allowing the person to perform safety-sensitive functions.
    G. Follow-up Testing. This proposed action changes the 
requirements of follow-up testing to conform with 49 CFR part 40, 
which requires the SAP, instead of the MRO, to determine the number 
of follow-up tests an employee should have. This action also 
proposes language to conform with the 49 CFR part 40 requirement 
that an employee who tests positive is subject to at least six 
follow-up tests after returning to duty.

VI. Administrative and Other Matters

    With regard to documents that an employer must maintain, this 
action proposes to alter this section to refer to 49 CFR part 40. 14 
CFR part 121, appendix I would include those documents that are 
currently specified in this appendix, but which have not been moved 
to 49 CFR part 40.
    We propose to delete current paragraphs A. and B. titled 
``Collection, Testing, and Rehabilitation Records'' and ``Laboratory 
Inspections'' respectively. These requirements are now addressed in 
49 CFR part 40.
    This action proposes to eliminate parts of paragraph ``C. 
Employee Request for Test of a Split Specimen'' because 49 CFR part 
40 sets out these requirements for split specimens. We propose 
moving paragraph C.3. to the MRO section, 14 CFR part 121, appendix 
I, section VII.A. because it is an MRO responsibility. This change 
is proposed for clarity and organizational purposes.
    We propose to add a new paragraph A, ``MRO Record Retention 
Requirements.'' These are not new requirements but have been 
consolidated here from current section VII.C. because they were not 
included in 49 CFR part 40. Specifically, this paragraph would 
include two paragraphs dealing with MRO contracting services and 
transfer of records.
    This action proposes to include paragraph B. ``Access to 
Records.'' This is not a new requirement and is currently in section 
VII.C.4. Moving the access to records requirement would consolidate 
the record requirements in one section.
    This action proposes to include paragraph C. ``Service Agent.'' 
This would be a conforming change to 49 CFR part 40 and would 
specify when service agents must have records available for 
inspections and investigations of the employer's antidrug program. 
This action proposes to change paragraph D. ``Release of Drug 
Testing Information'' to conform with 49 CFR part 40.

VII. Medical Review Officer, Substance Abuse Professional, and Employer 
Responsibilities

    We propose to rename this section from ``MRO and Substance Abuse 
Professional'' to ``Medical Review Officer, Substance Abuse 
Professional, and Employer Responsibilities.'' We also propose to 
rename ``A. MRO and Substance Abuse Professional Duties'' to ``A. 
Medical Review Officer'' and to rename ``B. MRO Determinations'' to 
``B. Substance Abuse Professional.'' These changes are proposed to 
better organize the information in this appendix and to conform to 
changes to 49 CFR part 40.
    We propose to delete the majority of MRO and SAP 
responsibilities in this appendix and instead refer the reader to 49 
CFR part 40. We propose to keep the MRO and employer 
responsibilities for 14 CFR part 67 airman medical certificate 
holders because these requirements are specific to the FAA. We 
propose to move some responsibilities from the MRO to the SAP 
because 49 CFR part 40 has given SAPs some duties that formerly 
belonged to the MROs.
    In addition, we propose keeping the provision in this appendix 
that prohibits the MRO from delaying the verification of the primary 
test result pending the outcome of the split-specimen test. It will 
be in the section titled ``VII. A. Medical Review Officer.''
    For organizational purposes the MRO, SAP, and Employer 
Responsibilities regarding 14 CFR part 67 airman certificate holders 
have been combined under one section. We propose titling this 
paragraph ``C. Additional Medical Review Officer, Substance Abuse 
Professional, and Employer Responsibilities Regarding 14 CFR part 67 
Airman Medical Certificate Holders.''
    The 14 CFR part 67 final rule, dated March 1996, made a verified 
positive drug test result a disqualifying condition for the issuance 
or retention of a medical certificate. Prior to this change, the MRO 
was required to evaluate whether a 14 CFR part 67 airman medical 
certificate holder was dependent on drugs following a verified 
positive drug test result. If an MRO determined that an individual 
was dependent or could not determine drug dependency, the MRO could 
not recommend that the individual return to duty until the 
individual was found to be nondependent by, or had received a 
special issuance from, the Federal Air Surgeon. If the MRO 
determined the individual to be nondependent, the MRO could 
recommend that the individual be returned to duty or hired to 
perform safety-sensitive functions with a negative test result on a 
return to duty drug test.
    This action proposes a change to paragraph ``VII.B. MRO 
Determinations'' to reflect the 1996 amendment to 14 CFR part 67. 
Since the March 1996 final rule on 14 CFR part 67, the MROs have not 
been permitted to ``make a determination of probable drug dependence 
or nondependence as specified in 14 CFR part 67.'' This proposed 
action would remove paragraphs 1 and 2. The proposal would alter 
paragraph 3, and move that paragraph to become paragraph C.3. The 
proposed new paragraph C.3. would delete any reference to the MRO 
determining dependency for persons holding an FAA medical 
certificate to ensure the current requirements are consistent with 
14 CFR part 67. Clarifying language in paragraph C.3. would change 
the requirement from the MRO to the employer to forward SAP 
evaluations to the Federal Air Surgeon to reflect the changes in MRO 
duties in 49 CFR part 40.
    Under current 14 CFR part 121, appendix I, the ability of the 
MRO to return an individual to duty is restricted if that individual 
is a 14 CFR part 67 medical certificate holder. Because of the 
changes to 49 CFR part 40, the SAP has now assumed the return to 
duty role. Therefore, in paragraph C.2. we propose to similarly 
restrict the SAP's ability to return a 14 CFR part 67 medical 
certificate holder to a safety-sensitive function if that medical 
certificate is necessary for the performance of those functions.
    Because the requirements for employers are now divided between 
this appendix and 49 CFR part 40, there could be confusion for an 
employer about the steps to follow when dealing with an employee who 
is required to hold a 14 CFR part 67 airman medical certificate in 
order to perform safety-sensitive functions. Specifically, there 
might be confusion as to how to return such an employee to duty 
after a positive test result or a refusal to test.
    The FAA would like to note that an employer would not be able to 
use an

[[Page 21497]]

employee who would be required to hold a 14 CFR part 67 airman 
medical certificate to perform safety-sensitive duties following a 
positive test result until and unless the Federal Air Surgeon has 
issued a special issuance medical certificate. This proposal 
continues the requirement that the employer ensure that the employee 
who is required to hold a 14 CFR part 67 medical certificate meets 
the return to duty and follow-up testing requirements in accordance 
with 49 CFR part 40, once the Federal Air Surgeon has recommended 
that the employee who holds a 14 CFR part 67 medical certificate be 
permitted to perform safety-sensitive duties. These are not new 
concepts, and have been implicit requirements under the existing 
regulations. The FAA requests comments on whether these requirements 
to follow both 14 CFR part 67 and 49 CFR part 40 should be made 
explicit for clarity purposes, or whether the concepts are clear 
enough as implied by 49 CFR part 40 and this appendix.
    If an individual is not required to hold a 14 CFR part 67 
medical certificate to perform safety-sensitive functions, the SAP 
may return the individual to duty. The individual's 14 CFR part 67 
medical certificate is subject to review by the Federal Air Surgeon, 
but this review would not affect the SAP's ability to return the 
individual to duty as long as the individual did not need a 14 CFR 
part 67 medical certificate to perform his/her duties.
    As indicated previously this action proposes to move ``C. MRO 
Records.'' Anything pertinent to MRO records can be found in section 
VI.D.1. ``Administrative and Other Matters.'' This proposal would 
place all record retention responsibilities under one section.
    This action proposes to eliminate paragraph VII.D. ``Evaluations 
and Referrals'' and replace it with paragraph B. ``Substance Abuse 
Professional.'' These proposed changes to Paragraph B. would refer 
the reader to 49 CFR part 40, Subpart O, for SAP requirements and 
would conform with 49 CFR part 40, which contains the specific SAP 
requirements. There would be no need to list the same requirements 
in this appendix because they are included in 49 CFR part 40.

IX. Employer's Antidrug Program

    This action proposes to eliminate the requirement for an entity 
seeking to operate as a consortium to first seek the approval of the 
FAA. The terms upon which the FAA granted its approval to consortia 
have now been changed by the requirements of 49 CFR part 40.
    Also, in the common preamble published today by DOT, it is 
emphasized that the six DOT agencies that cover specific 
transportation industries needed to revise their rules to be 
consistent with 49 CFR part 40. It would be inappropriate for the 
FAA to separately grant consortium approvals when the DOT and the 
other modal administrations do not grant such approvals. Retaining 
the provision for consortium approvals by the FAA could cause 
confusion among the DOT regulated entities that DOT is trying to 
avoid.
    If consortium approvals are eliminated within this appendix, 
then any reference to an ``FAA-approved consortium'' or 
``consortium'' would be replaced with ``consortium/third party 
administrator'' as defined by 49 CFR part 40. We are seeking public 
comment on the elimination of the consortium approval process and 
the substitution of the 49 CFR part 40 term ``consortium/third party 
administrator'' at any point that consortia are referenced, as 
appropriate.

XII. Employees Located Outside the Territory of the United States

    This action proposes a change to the title of the section to 
``XII. Testing Outside the Territory of the United States.'' While 
49 CFR part 40 authorizes laboratory and MRO functions to occur 
outside the United States in Canada and Mexico, we are proposing to 
clarify that this authorization would not apply to entities 
regulated by this appendix. We are proposing to change paragraph A. 
to make it explicit that no part of the testing process, including 
specimen collection, laboratory processing, and MRO actions, shall 
be conducted outside the territory of the United States.
    It is important to note that, unlike DOT agencies that require 
drug testing by entities outside the United States, the FAA's 
regulations apply only to United States' entities and testing is 
confined to the soil of the United States and its territories. We 
acknowledge that it may be more convenient and practical for 
entities conducting testing outside the United States to use local 
laboratories and MROs, however, the situation is different in 
aviation because testing is prohibited outside the United States and 
its territories. The FAA has consistently declined to take a 
unilateral approach to testing outside the United States, and 
instead has been working productively with the International Civil 
Aviation Organization (ICAO) to develop a multilateral approach to 
drug and alcohol testing consistent with the Chicago Convention. The 
FAA's efforts through ICAO have been successful in supporting an 
aviation environment free of substance abuse. However, if the threat 
to aviation safety posed by substance abuse increases, or requires 
additional efforts and the international community has not 
adequately responded, the FAA will consider taking appropriate 
rulemaking action. The proposed change conforms to past FAA guidance 
on this section, to past practice, and to our commitment to continue 
to work with the International Civil Aviation Organization to 
address all aspects of international substance abuse testing.

XIII. Waivers From 49 CFR 40.21

    This action proposes to add this section to address a new 
provision introduced in 49 CFR part 40, which would permit waivers 
from 49 CFR 40.21. Under 49 CFR 40.21, an employer is prohibited 
from temporarily removing an employee from the performance of 
safety-sensitive functions based only on a report from a laboratory 
to the MRO of a confirmed positive test for a drug or a drug 
metabolite, an adulterated test, or a substituted test before the 
MRO has completed verification of the test result. This practice is 
described in 49 CFR 40.21 as ``stand down.'' However, 49 CFR 40.21 
(b) permits an employer to seek a waiver from 49 CFR 40.21 (a), 
thereby permitting the employer to stand down its employees.
    In order to implement the waiver provision of 49 CFR 40.21, the 
FAA proposes to add a new section to this appendix. There has been 
no past practice of granting waivers to the FAA's drug testing 
regulations. Therefore, this provision is proposed to create a 
process to address the requests for waiver from the stand down 
provisions of 49 CFR 40.21. Consistent with the requirements for 
seeking a waiver under 49 CFR 40.21(b), this section proposes to 
place the responsibility upon the applicant to provide sufficient 
factual information, analysis and justification to obtain a waiver 
from the stand down provision. The FAA is given discretion, by 49 
CFR 40.21(b), to grant, deny, grant with conditions, modify, and 
revoke waivers. Because this is detailed in 49 CFR 40.21(b), the 
proposed language does not address the FAA's discretion on these 
matters.

Appendix J

I. General

    This change proposes to add a paragraph ``C. Employer 
Responsibility.'' The reason for this proposed change would be to 
ensure that employers understand that they are responsible for all 
applicable requirements and procedures of this appendix and 49 CFR 
part 40. These proposed changes would also reinforce that employers 
are responsible for all actions of their officials, representatives, 
and service agents in carrying out the requirements of the DOT 
agency regulations. These proposed changes would also conform to 49 
CFR part 40.
    This action proposes to reletter paragraph ``C. Definitions'' to 
paragraph ``D. Definitions.'' This action also proposes the 
following changes to paragraph ``D. Definitions.''
     Delete the definition of ``Consortium'' because the 
definition is provided in 49 CFR part 40.
     Delete the definition of ``Confirmation Test'' because 
the definition is provided in 49 CFR part 40. It is redundant to 
list it again in this appendix.
     Change the definition of ``refusal to submit to an 
alcohol test'' to refer to 49 CFR part 40. This would be a 
clarifying change.
     Delete the definition of ``Screening Test'' since the 
definition is provided in 49 CFR part 40. There is no need to repeat 
the definition in the appendix.
     The remaining paragraphs will be relettered 
accordingly.

III. Tests Required

    A. Pre-employment Testing. In order to standardize the pre-
employment alcohol testing requirements, all of the Department of 
Transportation modal administrations are proposing the same rule 
language. For a discussion of the proposal, see the Department of 
Transportation's common preamble that is being published 
concurrently with this proposal.
    B. Post-accident Testing. This action proposes the elimination 
of paragraph 2(b) in its entirety. This paragraph requires specific 
data to be submitted to the FAA by March

[[Page 21498]]

15, 1996, 1997, and 1998. The timeframes have expired and submission 
of the data is no longer required.
    D. Reasonable Suspicion Testing. This change proposes the 
elimination of paragraph 4(b) in its entirety. This paragraph 
requires specific data to be submitted to the FAA by March 15, 1996, 
1997, and 1998. The timeframes have expired and submission of the 
data is no longer required.
    This action also proposes to eliminate in paragraph 4(d) the 
words ``Except as provided in paragraph (b)'' since paragraph (b) 
has been eliminated.
    E. Return to Duty Testing. This action proposes to change the 
requirements of return to duty testing to conform with 49 CFR part 
40, which now requires the SAP to determine that the employee has 
successfully complied with the prescribed education and/or treatment 
prior to allowing the person to perform safety-sensitive functions.
    F. Follow-up Testing. This action proposes to change the 
requirements of follow-up testing to conform with 49 CFR part 40, 
which requires the SAP to determine the number of follow-up tests an 
employee should have. This change would conform with the 49 CFR part 
40 requirement that any employee who receives an alcohol violation 
is subject to at least six follow-up tests after returning to duty. 
In addition, this paragraph would be reorganized for clarity.

IV. Handling of Test Results, Record Retention and Confidentiality

    A. Retention of Records. This action proposes to specify the 
records employers must continue to retain in addition to the records 
required by 49 CFR part 40.
    Specifically, this action proposes to eliminate the reference to 
recordkeeping requirements, except annual reports submitted to the 
FAA, because these recordkeeping requirements are included in 49 CFR 
part 40. For clarity, we moved all existing record requirements 
throughout paragraphs 2 and 3 into the appropriate sections of the 
proposed paragraph 2 and noted the specific retention period for the 
records. We eliminated 2(c) because all of the 1-year requirements 
are included in 49 CFR part 40.
    C. Access to Records and Facilities. This action proposes the 
elimination of most of this section because 49 CFR part 40 sets out 
the confidentiality and release of information requirements. We 
propose to retain the current paragraph number 8, which would now be 
renumbered as paragraph 2, because it reinforces to the employer the 
requirement to comply with this appendix regarding access to all 
facilities.

V. Consequences for Employees Engaging in Alcohol-Related Conduct

    C. Notice to Federal Air Surgeon. In light of the changes to 49 
CFR part 40 and the changes that were made to 14 CFR part 121, 
appendix I, because of the 1996 amendment to 14 CFR part 67, this 
action proposes to change paragraph 4 to parallel the changes to 14 
CFR part 121, appendix I. In addition, this action proposes to add a 
new paragraph 5, which would clarify the employer's obligation to 
ensure that the employee met the return to duty requirements, 
following the recommendation of the Federal Air Surgeon. This is a 
current requirement that is being clarified. Also, this requirement 
conforms to 49 CFR part 40.

VI. Alcohol Misuse Information, Training, and Substance Abuse 
Professional

    This action proposes to change the title from ``VI. Alcohol 
Misuse Information, Training, and Referral'' to ``VI. Alcohol Misuse 
Information, Training, and Substance Abuse Professional'' for 
clarity and organizational purposes.
    This action proposes to change the title of ``C. Referral, 
Evaluation, and Treatment'' to ``C. Substance Abuse Professional 
Duties'' for clarity purposes and to conform to 49 CFR part 40. We 
propose the elimination of the majority of this paragraph because 
the SAP requirements are detailed in 49 CFR part 40, Subpart O. This 
paragraph would now refer the reader to 49 CFR part 40 for SAP 
requirements.

VII. Employer's Alcohol Misuse Prevention Program

    This action proposes to eliminate the requirement for an entity 
seeking to operate as a consortium to first submit to the FAA an 
alcohol misuse prevention program (AMPP) certification statement. 
For the same reasons that we propose to eliminate consortium 
approvals in section IX of this appendix, we propose to eliminate 
the requirement for consortia to submit AMPPs to the FAA.
    Also, we propose that any references to an ``FAA-approved 
consortium'' or ``consortium'' would be replaced with ``consortium/ 
third party administrator'' as defined by 49 CFR part 40, as 
appropriate. We propose to strike the definition of ``consortium'' 
in section I, paragraph C of this appendix.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), the FAA has determined that there are no new requirements for 
information collection associated with this proposed rule.

International Compatibility

    In keeping with U.S. obligations under the Convention on 
International Civil Aviation, it is FAA policy to comply with 
International Civil Aviation Organization (ICAO) Standards and 
Recommended Practices to the maximum extent practicable. The FAA 
determined that there are no ICAO Standards and Recommended Practices 
that correspond to these proposed regulations.

Executive Order 12866 and DOT Regulatory Policies and Procedures

    The DOT prepared a regulatory analysis indicating that the modal 
proposals due to the changes in 49 CFR part 40 would not have any 
incremental economic impacts on their own. DOT also indicated that the 
modal proposed rules have been designated as non-significant under 
Executive Order 12866 and the Department of Transportation's Regulatory 
Policies and Procedures. See the Department of Transportation's common 
preamble, ``Transportation Workplace Drug and Alcohol Testing Programs; 
Amendments to DOT Agency Rules Conforming to 49 CFR Part 40'' for the 
regulatory evaluation of the actions that the FAA is proposing due to 
49 CFR part 40.
    In addition to the FAA's proposed changes that are directly due to 
changes in 49 CFR part 40, the FAA is proposing certain clarifying 
changes to 14 CFR part 121, appendices I and J that are not directly 
due to 49 CFR part 40. Executive Order 12866, Regulatory Planning and 
Review, directs the FAA to assess both the costs and benefits of a 
regulatory change. The FAA is not allowed to propose or adopt a 
regulation unless a reasoned determination is made that the benefits of 
the intended regulation justify the costs. The FAA's assessment of this 
Notice of Proposed Rulemaking indicates that its economic impact would 
be minimal. Since the costs and benefits of this proposed rule do not 
make it a ``significant regulatory action'' as defined in the Order, 
the FAA has not prepared a ``regulatory evaluation,'' which is the 
written cost/benefit analysis ordinarily required for all rulemaking 
proposals under the DOT Regulatory Policies and Procedures. The FAA 
does not need to do the latter analysis where the economic impact of a 
proposal is minimal. The changes that are being proposed because of 
changes to 49 CFR part 40 would have no incremental economic impacts on 
their own, and the additional clarifying changes that are being 
proposed would impose no new requirements; they would merely clarify 
existing requirements.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (RFA) establishes ``as a 
principle of regulatory issuance that agencies shall endeavor, 
consistent with the objective of the rule and of applicable statutes, 
to fit regulatory and informational requirements to the scale of the 
businesses, organizations, and governmental jurisdictions subject to 
regulation.'' To achieve that principle, the RFA requires agencies to 
solicit and consider flexible regulatory proposals and to explain the 
rationale for their actions. The RFA covers a wide-range of small 
entities, including small businesses, not-for-profit organizations, and 
small governmental jurisdictions.

[[Page 21499]]

    Agencies must perform a review to determine whether a proposed or 
final rule will have a significant economic impact on a substantial 
number of small entities. If the determination is that it will, the 
agency must prepare a regulatory flexibility analysis as described in 
the RFA.
    However, if an agency determines that a proposed or final rule is 
not expected to have a significant economic impact on a substantial 
number of small entities, section 605(b) of the 1980 act provides that 
the head of the agency may so certify and a regulatory flexibility 
analysis is not required. The certification must include a statement 
providing the factual basis for this determination, and the reasoning 
should be clear.
    Because the changes proposed in this action are a reworking of 
existing requirements and have been subject to extensive comment and 
analysis in the 49 CFR part 40 rulemaking or are merely clarifying 
changes and should not have incremental economic impacts on their own, 
the FAA certifies that the proposed rule would not have a significant 
economic impact on a substantial number of small entities.

International Trade Impact Analysis

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
engaging in any standards or related activities that create unnecessary 
obstacles to the foreign commerce of the United States. Legitimate 
domestic objectives, such as safety, are not considered unnecessary 
obstacles. The statute also requires consideration of international 
standards and where appropriate, that they be the basis for U.S. 
standards. In addition, consistent with the Administration's belief in 
the general superiority and desirability of free trade, it is the 
policy of the Administration to remove or diminish to the extent 
feasible, barriers to international trade, including both barriers 
affecting the export of American goods and services to foreign 
countries and barriers affecting the import of foreign goods and 
services into the United States.
    In accordance with the above statute and policy, the FAA has 
assessed the potential effect of this proposed rule and has determined 
that it would have no affect on any trade-sensitive activity.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 (the Act), enacted as Pub. 
L. 104-4 on March 22, 1995, is intended, among other things, to curb 
the practice of imposing unfunded Federal mandates on State, local, and 
tribal governments.
    Title II of the Act requires each Federal agency to prepare a 
written statement assessing the effects of any Federal mandate in a 
proposed or final agency rule that may result in a $100 million or more 
expenditure (adjusted annually for inflation) in any one year by State, 
local, and tribal governments, in the aggregate, or by the private 
section; such a mandate is deemed to be a ``significant regulatory 
action.''
    This proposed rule does not contain such a mandate. Therefore, the 
requirements of Title II of the Unfunded Mandates Reform Act of 1995 do 
not apply.

Executive Order 13132, Federalism

    The FAA has analyzed this proposed rule under the principles and 
criteria of Executive Order 13132, Federalism. We determined that this 
action would not have a substantial direct effect 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, we determined that this notice of proposed 
rulemaking would not have federalism implications.

Environmental Analysis

    FAA order 1050.1d defines FAA actions that may be categorically 
excluded from preparation of a National Environmental Policy Act (NEPA) 
environmental assessment or environmental impact statement. In 
accordance with FAA Order 1050.1d, appendix 4, paragraph 4(j), 
regulations, standards, and exemptions (excluding those which, if 
implemented, may cause a significant impact on the human environment) 
qualify for a categorical exclusion. The FAA proposes that this action 
qualifies for a categorical exclusion because no significant impacts to 
the environment are expected to result from its finalization or 
implementation.

Energy Impact

    The energy impact of the notice has been assessed in accordance 
with the Energy Policy and Conservation Act (EPCA) Pub. L. 94-163, as 
amended (42 U.S.C. 6362) and FAA Order 1053.1. It has been determined 
that the notice is not a major regulatory action under the provisions 
of the EPCA.

List of Subjects in 14 CFR Part 121

    Air carriers, Aircraft, Aircraft pilots, Airmen, Alcohol abuse, 
Aviation safety, Charter flights, Drug abuse, Drug testing, Reporting 
and recordkeeping requirements, Safety, Transportation.

The Proposed Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration proposes to amend part 121 of Title 14, Code of Federal 
Regulations, as follows:

PART 121--OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL 
OPERATIONS

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

    Authority: 49 U.S.C. 106(g), 40113, 40119, 41706, 44101, 
44701-44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 
44903-44904, 44912, 46105.
    2. Amend appendix I to part 121 as follows:
    A. Revise section I;
    B. In section II, revise the definitions of ``Prohibited drug'' and 
``Refusal to submit''; remove the definitions of ``Verified negative 
drug test result'' and ``Verified positive drug test result''; and add 
new definitions of ``Verified negative drug test'' and ``Verified 
positive drug test'' in alphabetical order;
    C. Revise section IV;
    D. In section V, revise paragraphs F. and G.2., G3., and G.4;
    E. In section VI, revise paragraphs A, B, C and D.
    F. In section VII, revise the heading of the section, and revise 
paragraphs A, B, and C;
    G. In section XII, revise the heading of the section and the 
introductory text in paragraph A; and
    H. Add section XIII.
    The revisions and additions read as follows:

Appendix I to Part 121--Drug Testing Program

* * * * *

I. General

    A. Purpose. The purpose of this appendix is to establish 
a program designed to help prevent accidents and injuries resulting 
from the use of prohibited drugs by employees who perform safety-
sensitive functions.
    B. DOT Procedures. Each employer shall ensure that drug 
testing programs conducted pursuant to 14 CFR parts 65, 121, and 135 
of this chapter comply 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 (HHS) under the National Laboratory Certification 
Program.
    C. Employer Responsibility. As an employer, you are 
responsible for all actions of your officials, representatives, and 
service agents in carrying out the requirements of this appendix and 
49 CFR part 40.
    II. Definitions. * * *
* * * * *

[[Page 21500]]

    Prohibited drug means marijuana, cocaine, opiates, 
phencyclidine (PCP), and amphetamines, except as permitted by 49 CFR 
part 40.
* * * * *
    Refusal to submit means that a covered employee engages 
in conduct specified in 49 CFR 40.191.
* * * * *
    Verified negative drug test means a drug test result 
from an HHS-certified laboratory that has undergone review by an MRO 
and has been determined by the MRO to be a negative result.
    Verified positive drug test means a drug test result 
from an HHS-certified laboratory that has undergone review by an MRO 
and has been determined by the MRO to be a positive result.
* * * * *
    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.
    V. Types of Drug Testing Required. * * *
* * * * *
    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 return to duty drug test. No employer shall allow an individual 
required to undergo return to duty testing to perform a safety-
sensitive function unless the employer has received a verified 
negative return to duty drug test result for the individual. The 
test cannot occur until after the SAP has determined that the 
employee has successfully complied with the prescribed education 
and/or treatment.
    G. Follow-up Testing. * * *
* * * * *
    2. The number and frequency of such testing shall be determined 
by the employer's Substance Abuse Professional, but 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 accordance with appendix J of this part, in addition to 
drugs, if the Substance Abuse Professional determines that alcohol 
testing is necessary for the particular employee. Any such alcohol 
testing shall be conducted in accordance with the provisions of 49 
CFR part 40.
    4. Follow-up testing shall not exceed 60 months after the date 
the individual begins to perform or returns to the performance of a 
safety-sensitive function. The Substance Abuse Professional may 
terminate the requirement for follow-up testing at any time after 
the first six tests have been conducted, if the Substance Abuse 
Professional determines that such testing is no longer necessary.
    VI. Administrative and Other Matters. A. MRO Record 
Retention Requirements. 1. Records concerning drug tests 
confirmed positive by the laboratory shall be maintained by the MRO 
for 5 years. Such records include the MRO copies of the custody and 
control form, medical interviews, documentation of the basis for 
verifying as negative test results confirmed as positive by the 
laboratory, any other documentation concerning the MRO's 
verification process.
    2. Should the employer change MROs for any reason, the MRO shall 
forward all records maintained pursuant to this rule to the new MRO 
within ten working days of receiving notice from the employer of the 
new MRO's name and address.
    3. Any employer obtaining MRO services by contract, including a 
contract through a 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.
    B. Access to Records. The employer and the MRO shall 
permit the Administrator or the Administrator's representative to 
examine records required to be kept under this appendix and 49 CFR 
part 40. The Administrator may require that all records maintained 
by the service agent for the employer must be produced at the 
employer's place of business.
    C. Service Agents. In accordance with 49 CFR part 40, 
service agents may maintain records for the employer. If requested 
by the Administrator or the Administrator's representative, all 
records maintained by the service agent for the employer must be 
produced at the service agent's place of business by the first day 
of a scheduled inspection or investigation of the employer's 
antidrug program.
    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 49 CFR part 40. Except as required by law, this 
appendix, or 49 CFR part 40, no employer shall release employee 
information.
* * * * *
    VII. Medical Review Officer, Substance Abuse Professional, 
and Employer Responsibilities. * * *
    A. Medical Review Officer (MRO). The MRO must perform 
the functions set forth in 49 CFR part 40, Subpart G, and this 
appendix. The MRO shall not delay verification of the primary test 
result following a request for a split specimen test unless such 
delay is based on reasons other than the fact that the split 
specimen test result is pending. If the primary test result is 
verified as positive, actions required under this rule (e.g., 
notification to the Federal Air Surgeon, removal from safety-
sensitive position) are not stayed during the 72-hour request period 
or pending receipt of the split specimen test result.
    B. Substance Abuse Professional (SAP). The SAP must 
perform the functions set forth in 49 CFR part 40, Subpart O.
    C. Additional Medical Review Officer, Substance Abuse 
Professional, and Employer Responsibilities Regarding 14 CFR part 67 
Airman Medical Certificate Holders.
    1. As part of verifying a confirmed positive test result, 
the MRO shall inquire, and the individual shall disclose, whether 
the individual is or would be required to hold a medical certificate 
issued under 14 CFR part 67 of this chapter to perform a safety 
sensitive function for the employer. If the individual answers in 
the negative, the MRO shall then inquire, and the individual shall 
disclose, whether the individual currently holds a medical 
certificate issued under 14 CFR part 67. If the individual answers 
in the affirmative to either question, the MRO must forward to the 
Federal Air Surgeon, at the address listed in paragraph 4, the name 
of the individual, along with identifying information and supporting 
documentation, within 12 working days after verifying a positive 
drug test result.
    2. The SAP shall inquire, and the individual shall disclose, 
whether the individual is or would be required to hold a medical 
certificate issued under 14 CFR part 67 of this chapter to perform a 
safety sensitive function for the employer. If the individual 
answers in the affirmative, the SAP cannot recommend that the 
individual be returned to a safety-sensitive function that requires 
the individual to hold a 14 CFR part 67 medical certificate unless 
and until such individual has received a special issuance medical 
certificate from the Federal Air Surgeon. The receipt of a special 
issuance medical certificate does not alter any obligations 
otherwise required by 49 CFR part 40 or this appendix.
    3. The employer must forward to the Federal Air Surgeon a copy 
of any report provided by the SAP, if available, regarding an 
individual for whom the MRO has provided a report to the Federal Air 
Surgeon under section VII.C.1 of this appendix, within 12 working 
days of the employer's receipt of the report.
    4. All reports required under this section shall be forwarded to 
the Federal Air Surgeon, Federal Aviation Administration, Attn: Drug 
Abatement Division (AAM-800), 800 Independence Avenue, SW., 
Washington, DC 20591.
* * * * *
    XII. Testing Outside the Territory of the United States. 
A. No part of the testing process (including specimen 
collection, laboratory processing, and MRO actions) shall be 
conducted outside the territory of the United States.
* * * * *
    XIII. Waivers from 49 CFR 40.21. An employer subject to 
this part may petition the Drug Abatement Division, Office of 
Aviation Medicine, for a waiver allowing the employer to stand down 
an employee following a report of a laboratory confirmed positive 
drug test or refusal, pending the outcome of the verification 
process.
    A. Each petition for a waiver must be in writing and include 
substantial facts and justification to support the waiver. Each 
petition must satisfy the substantive requirements for obtaining a 
waiver, as provided in 49 CFR 40.21.
    B. Each petition for a waiver must be submitted to the Federal 
Aviation Administration, Office of Aviation Medicine, Drug Abatement 
Division (AAM-800), 800

[[Page 21501]]

Independence Avenue, SW., Washington, D.C. 20591.
    C. The Administrator may grant a waiver subject to 49 CFR 
40.21(d).

    3. In appendix J to part 121:
    A. In section I, redesignate paragraphs C through F as paragraphs D 
through G, add new paragraph C, and amend redesignated paragraph D by 
removing the definitions for ``Consortium'', ``Refuse to 
submit'', and by adding a definition for ``Refusal to submit 
(to an alcohol test)'' in alphabetical order;
    B. In section III, revise paragraphs A, B heading, and B.2; remove 
paragraph D.4.(b); redesignate paragraphs D.4. (c) and D.4.(d) as 
paragraphs D.4. (b) and D.4. (c); revise redesignated paragraph D. 4. 
(c); and revise paragraphs E, and F;
    C. In section IV, revise paragraphs A.1, A.2, and C.2, and remove 
paragraphs C.3 through C.8;
    D. In section V, revise paragraph C.4 and add paragraph C.5; and
    E. In section VI, revise the heading and paragraph C.
    The revisions and additions read as follows:

Appendix J to Part 121--Alcohol Misuse Prevention Program

* * * * *

I. General

* * * * *
    C. Employer Responsibility. As an employer, you are 
responsible for all actions of your officials, representatives, and 
service agents in carrying out the requirements of the DOT agency 
regulations.
    D. Definitions
* * * * *
    Refusal to submit (to an alcohol test) means that a 
covered employee engages in conduct specified in 49 CFR 40.261.
* * * * *

III. Tests Required

A. Pre-employment testing

    As an employer, you may, but are not required to, conduct pre-
employment alcohol testing under this part. If you choose to conduct 
pre-employment alcohol testing, you must comply with the following 
requirements:
    1. You must conduct a pre-employment alcohol test before the 
first performance of safety-sensitive functions by every covered 
employee (whether a new employee or someone who has transferred to a 
position involving the performance of safety-sensitive functions).
    2. You must treat all safety-sensitive employees performing 
safety-sensitive functions the same for the purpose of pre-
employment alcohol testing (i.e., you must not test some covered 
employees and not others).
    3. You must conduct the pre-employment tests after making a 
contingent offer of employment or transfer, subject to the employee 
passing the pre-employment alcohol test.
    4. You must conduct all pre-employment alcohol tests using the 
alcohol testing procedures of 49 CFR Part 40.
    5. You must not allow a covered employee to begin performing 
safety-sensitive functions unless the result of the employee's test 
indicates an alcohol concentration of less than 0.04.

B. Post-Accident Testing

* * * * *
    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.
* * * * *
    D. Reasonable Suspicion Testing
* * * * *
    4. * * *
    (c) 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, 
Sec. 121.458, or Sec. 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. The test cannot occur until 
after the SAP (See paragraph V. C. 4 of this appendix) has 
determined that the employee has successfully complied with the 
prescribed education and/or treatment.
    F. Follow-up Testing
    1. Each employer shall ensure that the employee who engages 
in conduct prohibited by Sec. 65.46a, Sec. 121.458, or Sec. 135.253 
of this chapter is subject to unannounced follow-up alcohol testing 
as directed by a substance abuse professional.
    2. The number and frequency of such testing shall be determined 
by the employer's Substance Abuse Professional, but must 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 
drugs, if the SAP determines that drug testing is necessary for the 
particular employee. Any such drug testing shall be conducted in 
accordance with the provisions of 49 CFR part 40.
    4. Follow-up testing shall not exceed 60 months after the date 
the individual begins to perform or returns to the performance of a 
safety-sensitive function. The SAP may terminate the requirement for 
follow-up testing at any time after the first six tests have been 
conducted, if the SAP determines that such testing is no longer 
necessary.
    5. A covered employee shall be tested for alcohol under this 
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.
* * * * *

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

A. Retention of Records

    1. General Requirement. In addition to the records 
required to be maintained under 49 CFR part 40, employers must 
maintain records required by this appendix in a secure location with 
controlled access.
    2. Period of retention.
    (a) Five years.
    (1) Copies of any annual reports submitted to the FAA under 
this appendix for a minimum of 5 years.
    (2) 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.
    (3) Documents presented by a covered employee to dispute the 
result of an alcohol test administered under this appendix.
    (4) Records related to other violations of Sec. 65.46a, 
Sec. 121.458, or Sec. 135.253 of this chapter.
    (b) Two years. Records related to the testing process 
and training required under this appendix.
    (1) Documents related to the random selection process.
    (2) Documents generated in connection with decisions to 
administer reasonable suspicion alcohol tests.
    (3) Documents generated in connection with decisions on post-
accident tests.
    (4) Documents verifying existence of a medical explanation of 
the inability of a covered employee to provide adequate breath for 
testing.
    (5) Materials on alcohol misuse awareness, including a copy of 
the employer's policy on alcohol misuse.
    (6) Documentation of compliance with the requirements of section 
VI, paragraph A of this appendix.
    (7) 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.
    (8) Certification that any training conducted under this 
appendix complies with the requirements for such training.
* * * * *

C. Access to Records and Facilities

* * * * *
    2. 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.

[[Page 21502]]

V. Consequences for Employees Engaging in Alcohol-Related Conduct

* * * * *

C. Notice to the Federal Air Surgeon

* * * * *
    4. No covered employee who is required to hold a medical 
certificate under part 67 of this chapter to perform a safety-
sensitive duty shall perform that duty following a violation of this 
appendix until and unless the Federal Air Surgeon has recommended 
that the employee be permitted to perform such duties.
    5. Once the Federal Air Surgeon has recommended under paragraph 
C.4. of this section that the employee be permitted to perform 
safety-sensitive duties, the employer cannot permit the employee to 
perform those safety-sensitive duties until the employer has ensured 
that the employee meets the return-to-duty requirements in 
accordance with 49 CFR part 40.
* * * * *

VI. Alcohol Misuse Information, Training, and Substance Abuse 
Professional

* * * * *

C. Substance Abuse Professional Duties (SAP)

    The SAP must perform the functions set forth in 49 CFR part 
40, Subpart O and this appendix.
* * * * *

    Issued in Washington, DC on April 11, 2001.
Jon L. Jordan,
Federal Air Surgeon.

[FR Doc. 01-9410 Filed 4-27-01; 8:45 am]
BILLING CODE 4910-13-P