[Federal Register Volume 66, Number 154 (Thursday, August 9, 2001)]
[Rules and Regulations]
[Pages 41959-41969]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-19231]



[[Page 41959]]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 121

[Docket No. FAA-2000-8431; Amendment No. 121-285]
RIN 2120-AH15


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

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: The Federal Aviation Administration (FAA) is revising its drug 
and alcohol regulations. This final rule incorporates changes in the 
Department of Transportation (DOT) final rule, ``Procedures for 
Transportation Workplace Drug and Alcohol Testing Programs,'' published 
December 19, 2000. In addition, this rule changes the drug testing 
program and alcohol misuse prevention program regulations in light of 
the amendments that have been made to the medical standards and 
certification requirements. Certain requirements under reasonable 
suspicion and post-accident alcohol testing have been eliminated 
because these requirements are outdated and no longer valid. Finally, 
this rule eliminates the approval process for consortia to be 
consistent with the other DOT Modal Administrations and the DOT 
Procedures for Transportation Workplace Drug and Alcohol Testing 
Programs. The effect of these changes is to update and clarify the 
regulations based on DOT's revisions and previous FAA rulemakings.

DATES: This final rule is effective August 1, 2001.

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:

Availability of Rulemaking Documents

    You can get an electronic copy 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 for the item 
you wish to view.
    You can also get an electronic copy using the Internet through the 
Office of Rulemaking's web page at http://www.faa.gov/avr/armhome.htm/nprm/nprm.htm or the Government Printing Office'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 amendment number or docket number of this 
rulemaking.

Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires FAA to comply with small entity requests for information 
or advice about compliance with statutes and regulations within its 
jurisdiction. Therefore, any small entity that has a question regarding 
this document may contact their local FAA official, or the person 
listed under FOR FURTHER INFORMATION CONTACT. You can find out more 
about SBREFA on the Internet at our site, http://www.faa.gov/avr/arm/sbrefa.htm. For more information on SBREFA, e-mail us at [email protected].

Background

General

    On April 29, 1996, the Department of Transportation (DOT) published 
an advance notice of proposed rulemaking (ANPRM) (61 FR 18713) asking 
for suggestions to change 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 
published proposing a comprehensive revision to 49 CFR part 40. The DOT 
published its final rule on December 19, 2000 (65 FR 79462). As a 
consequence of the DOT's final rule, on April 30, 2001, the FAA 
published an NPRM (66 FR 21494) proposing to revise its drug and 
alcohol testing regulations to integrate, as appropriate, the new DOT 
procedures. Also to conform with the DOT procedures and the practices 
of the other DOT Modal Administrations, the FAA proposed elimination of 
its approval of consortia.
    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 the 14 CFR part 67 final rule, the FAA has identified 
some inconsistencies between 14 CFR part 121 and 14 CFR part 67 that 
require modification. In revising 14 CFR part 121 in response to the 
DOT final rule, the FAA was revising the same sections affected by the 
14 CFR part 67 final rule changes. Therefore, rather than reissuing 
inconsistent provisions, the FAA has taken this opportunity to address 
these inconsistencies. Also, 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, and 
therefore have been removed.

Consortia

    In Notice No. 00-14, the FAA proposed eliminating consortia 
``approvals.'' We received three comments on the consortium issue. For 
more information on the comments received, see ``Discussion of 
Comments'' below.
    The FAA has eliminated consortia ``approvals.'' The FAA has been 
the only DOT Modal Administration that has issued ``approvals'' to 
consortia. In light of the changes to 49 CFR part 40 and in recognition 
of the practices of the other DOT Modal Administrations, the FAA will 
no longer ``approve'' consortia, and it will not review consortium 
plans submitted. There will no longer be any ``FAA-approved'' 
consortia. All FAA approvals are rescinded by this final rule. 
Therefore, no entity can hold itself out as ``FAA-approved'' after the 
effective date of this final rule.
    In the past, only FAA-approved consortia could combine the employee 
random testing pools of different employers. Now, that benefit is 
conferred to all Consortia/Third-party administrators (C/TPA). We have

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replaced ``consortium'' with C/TPA as appropriate throughout appendices 
I and J.

DOT Discussion of Intermodal Issues

    In a document published concurrently with this final rule, the DOT 
discusses intermodal issues concerning all of the modal final rules 
amending the drug and alcohol testing rules.

Discussion of Comments

General Overview

    The comment period for the NPRM closed June 14, 2001. The FAA 
received four comments in response to the NPRM before the comment 
period closed. One comment was a joint filing of the Air Line Pilots 
Association (ALPA) and Transportation Trades Department (TTD), AFL-CIO. 
Two comments were from FAA-approved consortia. One comment was from the 
Drug and Alcohol Testing Industry Association (DATIA).
    One of the commenters requested clarification regarding operators 
as defined by 14 CFR 135.1(c). This issue is outside the scope of this 
rulemaking and will not be addressed on its merits at this time.
    In its comment, DATIA proposes that the FAA require managers of 
random testing pools, including C/TPAs and MROs, to receive written 
proof of an individual's pre-employment result before putting that 
individual into a random testing pool. Also, DATIA proposes that the 
FAA require that the MRO or C/TPA report a positive test result 
concurrently to the FAA in writing, whenever an employer is notified 
that test result is positive. These changes proposed in DATIA's 
comments are outside the scope of what was proposed in Notice No. 00-
14. Therefore, the FAA will not consider these recommendations on their 
merits at this time.
    The ALPA and TTD comment and the DATIA comment both focus on some 
issues from 49 CFR part 40, which were outside the scope of the FAA's 
rulemaking. We have forwarded these comments to the DOT for 
consideration in future revisions to 49 CFR part 40.
    In addition, two commenters requested guidance on the interface 
between the requirements of the FAA's regulations and 49 CFR part 40. 
The FAA intends to conduct industry training in the future to address 
such issues.
    For ease and clarity, we have categorized the comment discussion by 
rule section.

Appendix I

I. General

    In Notice No. 00-14, the FAA proposed revising section I and 
renaming it ``General.'' Also, the FAA proposed adding paragraph A. 
``Purpose'' to section I for clarity and organizational purposes. We 
proposed moving and revising the language in the existing section I 
into a new paragraph B. ``DOT Procedures'' and adding paragraph C. 
``Employer Responsibility.'' These changes are necessary to clarify the 
responsibility of employers to follow the requirements and procedures 
of this appendix and 49 CFR part 40. These changes also reinforce that 
employers are responsible for all actions of their officials, 
representatives, and service agents in carrying out the requirements of 
14 CFR part 121, appendix I and 49 CFR part 40.
    The FAA did not receive any comments on the proposed changes, which 
are adopted as proposed, with minor editorial changes.

II. Definitions

    Notice No. 00-14 proposed to change the definition of ``prohibited 
drug'' to limit the definition to the five drugs that are prohibited 
under 49 CFR 40.85. 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 changes will eliminate any such 
confusion.
    We also proposed changing the definition of ``refusal to submit'' 
to refer to 49 CFR part 40. This is a clarifying change.
    In addition, Notice No. 00-14 proposed changing the definitions of 
``verified negative test result'' and ``verified positive test 
result.'' These definitions are necessary because these terms are used 
in this appendix. The definitions are consistent with the broader 
language for verified tests used in 49 CFR 40.3.
    The FAA did not receive any comments on the proposed changes, which 
are adopted as proposed, with minor editorial changes.

IV. Substances for Which Testing Must Be Conducted

    Notice No. 00-14 proposed to eliminate the second sentence of this 
section that allowed 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 necessary because 49 CFR 40.85 prohibits testing for 
additional drugs.
    The FAA did not receive any comments on the proposed changes, which 
are adopted as proposed.

V. Types of Drug Testing

    C. Random Testing. In Notice No. 00-14, we proposed changing all 
sections referring to FAA-approved consortia. We received one comment 
on the issue of renaming ``consortium'' to ``C/TPA.'' The commenter 
supports the proposal.
    Therefore, in this section, we revised the language to permit 
Consortia/Third-party administrators (C/TPA) to combine the employee 
random testing pools of different employers. In the past, only FAA-
approved consortia could combine the employee random testing pools of 
different employers. This change conforms to 49 CFR part 40.
    F. Return to Duty Testing. In Notice No. 00-14, we proposed 
changing the requirements of return to duty testing to conform with 49 
CFR part 40. We also proposed clarifying that an employee must undergo 
a return to duty drug test before resuming the performance of a safety-
sensitive function. In accordance with 49 CFR part 40, we proposed 
requiring that the test not occur until the Substance Abuse 
Professional (SAP) not the Medical Review Officer (MRO), has determined 
that the employee has successfully complied with the prescribed 
education and/or treatment.
    The FAA did not receive any comments on the proposed changes, which 
are adopted as proposed, with minor editorial changes.
    G. Follow-up Testing. In Notice No. 00-14, we proposed changing 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. We also proposed to change 
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. Furthermore, we proposed to clarify that the 
alcohol test permitted under paragraph 3 needs to be performed in 
accordance with 14 CFR part 121, appendix J.
    The FAA did not receive any comments on the proposed changes, which 
are adopted as proposed, with minor editorial changes.

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VI. Administrative and Other Matters

    Notice No. 00-14 proposed to refer to 49 CFR part 40 for documents 
that an employer must maintain. We preserved the requirement for FAA-
specific documents already in 14 CFR part 121, appendix I, that were 
not referenced into 49 CFR part 40. In particular, we proposed deleting 
current paragraphs A. and B. titled ``Collection, Testing, and 
Rehabilitation Records'' and ``Laboratory Inspections'' respectively 
because these requirements are now addressed in 49 CFR part 40. We also 
proposed eliminating 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 proposed moving current paragraph 
C.3. to the new MRO section, 14 CFR part 121, appendix I, section 
VII.A., because it is an MRO responsibility.
    In Notice No. 00-14, we proposed to add a new paragraph A. ``MRO 
Record Retention Requirements.'' Specifically, we consolidated language 
concerning MRO contracting services and transfer of records from 
current section VII.C. because these records were not included in 49 
CFR part 40. These are not new record retention requirements. In the 
proposal, we inadvertently omitted some language that appeared in 
current section VII.C. when we transferred the language to paragraph A. 
We have restored the original language in this final rule.
    We proposed to add a new paragraph B. ``Access to Records.'' These 
requirements are currently in section VII.C.4 and are being moved to 
consolidate the record requirements into one section.
    The FAA did not receive any comments on the proposed changes 
described above, which are adopted as proposed, with minor editorial 
changes.
    In Notice No. 00-14, we proposed to add a new paragraph C. 
``Service Agent.'' One commenter raises questions about the timeframes 
specified in this provision. We reconsidered paragraph C. and 
determined that the provisions in 49 CFR 40.333(d) and 40.349(e) are 
sufficient. Therefore, we are eliminating proposed paragraph C from the 
final rule.
    Also, we proposed to revise paragraph D. ``Release of Drug Testing 
Information.'' This change conforms to 49 CFR part 40. Because we are 
deleting proposed paragraph C., proposed paragraph D. is now relettered 
as paragraph C. We received one comment from ALPA and TTD on this 
paragraph. The comment states that we should not delete this provision. 
The FAA has reviewed the proposal and determined that this provision 
was not deleted in appendix I. However, the commenter was correct in 
pointing out that this provision was omitted from appendix J in the 
NPRM, and we have made the appropriate corrections in appendix J. For a 
further discussion of the issue see appendix J, section IV.C.2.
    In addition, one comment was received regarding the requirement in 
paragraph A. for MROs to transfer records to a new MRO within 10 days 
of the employer's notification that a new MRO has been hired. The 
commenter states that 30 days would be a more appropriate timeframe.
    In the future, the FAA may consider the expanded timeframe that the 
commenter suggests. However, the FAA is not making the suggested change 
at this time because it is outside the scope of this rulemaking and 
notice and opportunity for public comment have not been provided for 
changing the existing 10-day requirement. Instead, we are moving the 
language from paragraph VII.C. to paragraph A. as proposed.
    Furthermore, Notice No. 00-14 proposed to change ``consortium'' to 
``C/TPA,'' as appropriate. We received one comment on this issue, which 
supports the change. Therefore, the FAA revised paragraph A.3 to use 
the term ``C/TPA.''

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

    In Notice No. 00-14, we proposed renaming this section from ``MRO 
and Substance Abuse Professional'' to ``Medical Review Officer, 
Substance Abuse Professional, and Employer Responsibilities.'' We also 
proposed renaming paragraph A. from ``MRO and Substance Abuse 
Professional Duties'' to ``Medical Review Officer'' and renaming 
paragraph B. from ``MRO Determinations'' to ``Substance Abuse 
Professional.'' These changes will better organize the information and 
conform to changes to 49 CFR part 40.
    We proposed to delete the majority of MRO and SAP responsibilities 
in this appendix and instead refer the reader to 49 CFR part 40. 
Specifically, in Notice No. 00-14, we proposed: (1) Retaining the MRO 
and employer responsibilities for 14 CFR part 67 airman medical 
certificate holders because these requirements are specific to the FAA; 
(2) moving some responsibilities from the MRO to the SAP because 49 CFR 
part 40 has given SAPs return to work duties that formerly belonged to 
the MROs; (3) moving the provision from section VI.C.3 that prohibits 
the MRO from delaying the verification of the primary test result 
pending the outcome of the split-specimen test; (4) combining the MRO, 
SAP, and Employer Responsibilities regarding 14 CFR part 67 airman 
certificate holders under paragraph C. ``Additional Medical Review 
Officer, Substance Abuse Professional, and Employer Responsibilities 
Regarding 14 CFR part 67 Airman Medical Certificate Holders.''
    Notice No. 00-14 proposed to change paragraph B. ``MRO 
Determinations'' to reflect the 1996 final rule that amended 14 CFR 
part 67. Prior to the 1996 final rule, 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. 
Since the 1996 final rule, MROs have not been permitted to ``make a 
determination of probable drug dependence or nondependence as specified 
in 14 CFR part 67.'' Therefore, in Notice No. 00-14 we proposed to: (1) 
Delete any reference to the MRO determining dependency for a person 
holding an FAA medical certificate; (2) require the employer, and not 
the MRO, to forward the SAP evaluation to the Federal Air Surgeon.
    In Notice No. 00-14, we proposed to revise paragraph C.2 to 
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 the safety-sensitive 
function. Currently, 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 the changes to 49 CFR part 40 gave the SAP 
the return to duty role, paragraph C.2 was revised accordingly.
    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. Although the individual's medical certificate 
is subject to review by the Federal Air Surgeon, this review will not 
affect the SAP's ability to return the individual to duty as long as 
the individual did not need a medical certificate to perform his/her 
duties. For example, a flight attendant may hold a medical certificate 
because he or she is also a private pilot. In such a case, the person's 
positive test result would be reported to the Federal Air Surgeon, but 
the SAP could recommend that the individual return to duty as a flight 
attendant. The Federal Air Surgeon would act independently on the 
medical certificate. The Federal Air Surgeon's actions on the flight 
attendant's medical certificate would

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have no bearing on his or her ability to return to work as a flight 
attendant.
    One minor change was made to the proposed language for this 
section. The minor change adds the option for the Federal Air Surgeon 
to issue a medical certificate without a ``special issuance'' 
stipulation on the certificate. The reason for this is so that, in rare 
circumstances, the Federal Air Surgeon could determine that a ``special 
issuance'' is not necessary. Without the change to the rule language, a 
person granted a medical certificate without a ``special issuance'' 
could not return to work.
    The FAA received one comment from the ALPA and TTD on the proposed 
changes regarding 14 CFR part 67. The comment supports the proposed 
revisions and clarifications that make the drug testing and alcohol 
misuse prevention regulations consistent with the prior changes to 14 
CFR part 67. Therefore, the changes are adopted as proposed, with minor 
editorial changes.
    Additionally, in Notice No. 00-14, the FAA requested comment on 
whether the 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. Specifically, we discussed that the employer must ensure the 
employee who is required to hold a medical certificate meets the return 
to duty and follow-up testing requirements in accordance with 49 CFR 
part 40, after the Federal Air Surgeon has recommended that such an 
employee be permitted to perform safety-sensitive duties. The FAA did 
not propose specific language in appendix I, however, we proposed 
clarifying language on this issue in 14 CFR 121, appendix J, section 
V.C.5.
    One commenter states that the SAP's duties are clear with respect 
to 14 CFR part 67; another commenter states that the FAA should clarify 
this issue. The FAA has determined that the provision merits 
clarification. Therefore, the FAA has adopted the language proposed to 
14 CFR 121, appendix J, section V.C.5 and inserted it into 14 CFR part 
121, appendix I, section VII.C.4.

IX. Employer's Antidrug Program

    Notice No. 00-14 proposed to eliminate the requirement for an 
entity seeking to operate as a consortium to first seek the approval of 
the FAA because, as noted in the common preamble to the NPRM, the terms 
upon which the FAA granted its approval to consortia have now been 
changed by the requirements of 49 CFR part 40.
    The FAA received three comments on the C/TPA issue. DATIA supports 
the elimination of FAA's approval of consortia, saying that removal of 
the FAA approval process will emphasize that C/TPA operations are 
regulated by 49 CFR part 40 and will promote continuity of services by 
C/TPAs. Two of the commenters do not favor the elimination of FAA 
approval for consortia because they believe that such elimination may 
result in additional confusion and exposure to less than competent 
service providers for aviation employers. One commenter states that 
FAA-approved consortia are needed because many aviation employers do 
not have the knowledge, time, and personnel required to understand and 
implement an effective drug and alcohol testing program. Furthermore, 
two commenters believe that FAA-approved consortia fill a critical 
void. Moreover, one commenter favors extending approval beyond 
consortia to third party administrators throughout DOT modal 
administrations.
    The FAA disagrees with the comments opposing the elimination of the 
FAA approval process because experience has shown that some consortia 
and employers have misunderstood the term ``FAA-approved consortium'' 
as meaning that the consortium operates in accordance with the 
appropriate regulations. In fact, FAA ``approval'' of a consortium has 
never been a measure of the consortium's actual ability or compliance. 
Employers have always been and will remain responsible for ensuring 
that their testing programs are in compliance with the regulations. 
Since this misunderstanding of the term ``approval'' has contributed to 
significant violations of the regulations, removing ``approval'' for 
consortia makes that point clear.
    Therefore, paragraph A.4 has been revised to eliminate the 
requirement for a consortium to apply for the FAA's approval. Paragraph 
A.6 has been revised to eliminate the word ``consortium'' to conform to 
49 CFR part 40. Also, since consortium approvals have been eliminated 
within this appendix, all references to an ``FAA-approved consortium'' 
or ``consortium'' have been replaced with ``C/TPA'' as defined by 49 
CFR part 40.
    One commenter inquires about the administrative processes that will 
be applied if the proposed changes to eliminate FAA-approved consortia 
are adopted. Specifically, the commenter asks what the ramifications of 
the proposed change to the employer's policy and program will be.
    First, employers can continue to contract with consortia and third 
party administrators as they always have. The employer's FAA-approved 
plan has always been signed and certified by the employer, regardless 
of the employer's membership in a consortium. C/TPAs may continue to 
prepare and forward the employer's plan submissions to the FAA, as long 
as the employer signs and certifies the document. Second, it will not 
be necessary for employers who are consortium members to resubmit their 
plans. The consortium antidrug plan format, ``CONSORTIUM MEMBER 
ANTIDRUG PLAN/AMPP CERTIFICATION STATEMENT,'' is substantively the same 
as the individual antidrug plan format, ``ANTIDRUG PLAN/ALCOHOL MISUSE 
PREVENTATION PROGRAM CERTIFICATION STATEMENT.'' Since both formats are 
substantively the same, previously submitted consortium member plans 
will be treated as independent plans. Third, at this time we are not 
eliminating the requirement for aviation employers to file and receive 
approval of drug and alcohol program plans.
    After consideration of the comments discussed above, we are 
eliminating the ``FAA approval'' of consortia as discussed in the NPRM.

X. Reporting of Antidrug Program Results

    In Notice No. 00-14 we proposed changing the term ``FAA-approved 
consortia'' to ``C/TPA.'' We received one comment on this issue, which 
supported the change. Therefore, in the final rule we have revised 
paragraph F to permit C/TPAs to prepare reports on behalf of individual 
employers, whereas only FAA-approved consortia were permitted to do 
this in the past.
    An additional minor change is being made to this paragraph to 
clarify that C/TPAs are not permitted to sign the annual antidrug 
program results reports for the employer. This minor change is 
necessary because an FAA-approved consortium was not permitted to sign 
its client's annual antidrug program results report in the past, 
therefore, we are clarifying that the same restriction applies to C/
TPAs.

XII. Testing Outside the Territory of the United States

    In Notice No. 00-14, the FAA proposed changing the title of this 
section from ``Employees Located Outside the Territory of the United 
States'' to ``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 proposed clarifying 
that this authorization does not apply to entities

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regulated by this appendix. We proposed changing paragraph A. to 
explicitly state 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. 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 the past, and we are continuing to work with ICAO 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 change conforms to past FAA guidance on this section, to past 
practice, and to our commitment to continue to work with ICAO to 
address all aspects of international substance abuse testing.
    The FAA did not receive any comments on the proposed changes, which 
are adopted as proposed.

XIII. Waivers from 49 CFR 40.21

    As proposed in Notice No. 00-14, this new provision addresses 
waivers described in 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 
proposed adding 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 will create a process to address requests for 
waivers from the stand down provisions of 49 CFR 40.21. Consistent with 
the requirements for seeking a waiver under 49 CFR 40.21(b), we 
proposed placing the responsibility on 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 did not address the FAA's discretion on these 
matters.
    The FAA will not consider the grant of such waivers lightly. There 
are strong privacy concerns that surround an unverified positive test 
result. Waiver applications must address all of the concerns detailed 
in 49 CFR 40.21(b) and must show that the individual's privacy concerns 
are being properly protected by the aviation entity. If a waiver 
application fails to address the criteria in 49 CFR 40.21(b), it is 
likely to be denied without detailed analysis. In addition, if the FAA 
grants a waiver, as stated in 49 CFR 40.21(d)(2), ``The Administrator, 
or his or her designee, may immediately suspend or revoke the waiver if 
he or she determines that you have failed to protect effectively the 
interests of employees in fairness and confidentiality, that you have 
failed to comply with the requirements of this section, or that you 
have failed to comply with any other conditions the DOT agency has 
attached to the waiver.''
    The FAA did not receive any comments on the proposed changes, which 
are adopted as proposed.

Appendix J

I. General

    In Notice No. 00-14, we proposed to add paragraph C. ``Employer 
Responsibility'' to ensure that employers understand that they are 
responsible for all applicable requirements and procedures of this 
appendix and 49 CFR part 40. This change also reinforces that employers 
are responsible for all actions of their officials, representatives, 
and service agents in carrying out the requirements of the DOT agency 
regulations.
    In addition, we proposed to:
     Reletter paragraph C. ``Definitions'' 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.
     Change the term from ``refuse to submit (to an alcohol 
test)'' to ``refusal to submit'', and change the definition to refer to 
49 CFR part 40.261.
     Delete the definition of ``Screening Test'' since the 
definition is provided in 49 CFR part 40.
     Reletter the remaining paragraphs accordingly.
    The FAA did not receive any comments on the proposed changes, which 
are adopted as proposed, with minor editorial changes.

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 proposed the same rule language. 
This was discussed in the Department of Transportation's common 
preamble published on April 30, 2001 (66 FR 21492). We proposed the 
standardized language in Notice No. 00-14, and we added the word 
``testing'' to the heading of the section for consistency with the 
other paragraphs in this section.
    The FAA did not receive any comments on the proposed changes, which 
are adopted as proposed.
    B. Post-accident Testing. In Notice No. 00-14, we proposed to 
eliminate paragraph 2(b), which required 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. Also, we 
proposed adding the word ``testing'' to the heading for consistency 
with the other paragraphs in this section.
    The FAA did not receive any comments on the proposed changes, which 
are adopted as proposed.
    C. Random Testing. In Notice No. 00-14, we proposed changing all 
sections referring to FAA-approved consortia. We received one comment 
on the issue of renaming ``consortium'' to ``C/TPA.'' The commenter 
supports the proposal.
    Therefore, we revised paragraph C. 6 to permit C/TPAs to combine 
the employee random testing pools of different employers. In the past, 
only FAA-approved consortia could combine the employee random testing 
pools of different employers. This change conforms to 49 CFR part 40.
    D. Reasonable Suspicion Testing. We proposed eliminating paragraph 
4(b), which required 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. Also, we proposed eliminating in 
paragraph 4(c) (formerly 4(d) in the current rule) the words ``Except 
as provided in paragraph (b)'' since paragraph (b) has been eliminated.

[[Page 41964]]

    The FAA did not receive any comments on the proposed changes, which 
are adopted as proposed.
    E. Return to Duty Testing. We proposed changing 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.
    The FAA did not receive any comments on the proposed changes, which 
are adopted as proposed, with minor editorial changes.
    F. Follow-up Testing. We proposed changing the requirements of 
follow-up testing to conform with 49 CFR part 40, which now requires 
the SAP to determine the number of follow-up tests for an employee and 
to ensure that any employee who receives an alcohol violation is 
subject to at least six follow-up tests after returning to duty. In 
addition, we proposed revising this paragraph for clarity.
    The FAA did not receive any comments on the proposed changes, which 
are adopted as proposed, with minor editorial changes.

IV. Handling of Test Results, Record Retention and Confidentiality

    A. Retention of Records. In Notice No. 00-14, the FAA proposed to 
specify which records employers must continue to retain in addition to 
the records required by 49 CFR part 40. Specifically, we eliminated 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 paragraph 2 and noted the specific retention period for the 
records. We eliminated paragraph 2(c) because all of the 1-year 
requirements are included in 49 CFR part 40.
    The FAA did not receive any comments on the proposed changes, which 
are adopted as proposed.
    B. Reporting of Results in a Management Information System. In 
Notice No. 00-14 we proposed changing the term ``FAA-approved 
consortia'' to ``C/TPA.'' We received one comment on this issue, which 
supported the change. Therefore, in the final rule we have revised 
paragraph B.8 to permit C/TPAs to prepare reports on behalf of 
individual employers, whereas only FAA-approved consortia were 
permitted to do this in the past.
    An additional minor change is being made to this paragraph to 
clarify that C/TPAs are not permitted to sign the annual antidrug 
program results reports for the employer. This minor change is 
necessary because an FAA-approved consortium was not permitted to sign 
its client's annual antidrug program results report in the past, 
therefore, we are clarifying that the same restriction applies to C/
TPAs.
    C. Access to Records and Facilities. In Notice No. 00-14, the FAA 
proposed to eliminate most of this section because 49 CFR part 40 sets 
out confidentiality and release of information requirements. Also, we 
proposed to retain language from current paragraph C.8, because it 
reinforces to the employer the requirement to comply with this appendix 
regarding access to all facilities.
    We received one comment from ALPA and TTD stating that we should 
not eliminate current paragraph C.2, which entitles employees to 
obtain, and requires employers to provide, records relevant to charges 
that an employee violated the alcohol misuse prevention provisions. The 
FAA did not intend to eliminate this provision, and we proposed to keep 
a similar provision in appendix I (now paragraph VI.C. in appendix I). 
The FAA agrees with the comment, and therefore, we are not eliminating 
current paragraph C.2 in appendix J. We will retain paragraph C.2 with 
a minor change to reference 49 CFR part 40. In addition, because we are 
retaining current paragraph C.2, we have renumbered proposed paragraph 
C.2 to a new paragraph C.3 in this final rule.

V. Consequences for Employees Engaging in Alcohol-Related Conduct

    C. Notice to Federal Air Surgeon. In Notice No. 00-14, we proposed 
changing paragraph C.4 in light of the changes to 49 CFR part 40 and 
the changes that arose from the 1996 amendment to 14 CFR part 67. In 
addition, we proposed adding a new paragraph C.5, clarifying the 
employer's obligation to ensure that the employee met the return to 
duty requirements following the recommendation of the Federal Air 
Surgeon.
    The FAA received one comment from the ALPA and TTD on the proposed 
changes regarding 14 CFR part 67. The comment supports the proposed 
revisions and clarifications that make the drug testing and alcohol 
misuse prevention regulations consistent with the prior changes to 14 
CFR part 67. Therefore, the changes are adopted as proposed, with minor 
editorial changes.

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

    In Notice No. 00-14, the FAA proposed to change the title of this 
section from ``Alcohol Misuse Information, Training, and Referral'' to 
``Alcohol Misuse Information, Training, and Substance Abuse 
Professional'' for clarity and organizational purposes. The FAA also 
proposed to change the title of paragraph C. from ``Referral, 
Evaluation, and Treatment'' to ``Substance Abuse Professional (SAP) 
Duties'' for clarity purposes and to conform to 49 CFR part 40. In 
addition, we proposed eliminating the majority of this paragraph 
because the SAP requirements are detailed in 49 CFR part 40, Subpart O. 
This paragraph now refers the reader to 49 CFR part 40 for SAP 
requirements.
    The FAA did not receive any comments on the proposed changes, which 
are adopted as proposed, with minor editorial changes.

VII. Employer's Alcohol Misuse Prevention Program

    In Notice No. 00-14, the FAA proposed eliminating 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 we have eliminated consortium approvals 
in section IX of appendix I, we have eliminated the requirement for a 
consortium to submit an AMPP to the FAA. Similarly, we have removed the 
requirement for a consortium to notify the FAA of membership changes.
    Also as proposed, we have removed any references to an ``FAA-
approved consortium'' or ``consortium'' in paragraphs A.6 and A.7 
because consortia are no longer required to submit AMPPs. We have 
eliminated paragraphs A.3 and A.8 and renumbered the remaining 
paragraphs accordingly.
    In addition, as proposed in Notice No. 00-14, in paragraph B. we 
removed the requirement for employers and contractors to name their 
consortium in their AMPP certification statement. Furthermore, we 
eliminated the provisions allowing consortia to submit AMPP 
certification statements. Therefore, the FAA will not accept C/TPA's 
own AMPP certification statements, however, C/TPAs can continue to 
prepare and forward AMPP certification statements on behalf of their 
clients as long as the employer signs the AMPP certification statement.
    For a discussion of the comments received on the issue of 
consortium approvals, see appendix I, section IX.

[[Page 41965]]

Paperwork Reduction Act

    There are no new requirements for information collection associated 
with this amendment.

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 regulations.

Good Cause for Immediate Adoption

    Generally, final rules must be published at least 30 days before 
their effective dates. However, the Administrative Procedure Act (5 
U.S.C. sec. 553(d)(3)) creates an exception to this general rule on the 
basis of good cause found by the agency and published rule. The FAA is 
making this rule effective August 1, 2001, rather than 30 days from 
now. The good cause supporting this action is that the purpose of this 
rule is to ensure that the FAA's drug and alcohol testing regulations 
are consistent with the Department-wide 49 CFR part 40, which goes into 
effect on August 1, 2001. Unless the FAA's final rule becomes effective 
August 1, 2001, there may be overlap, conflict, duplication, or 
confusion between different DOT drug and alcohol testing regulations. 
The new 49 CFR part 40 was published over seven months ago, therefore 
affected parties have had ample time to prepare to implement the new 
regulations. The FAA's final rule merely implements the changes made by 
49 CFR part 40, and additionally implements the 1996 final rule that 
changed 14 CFR part 67.

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 do 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. For the regulatory evaluation of the actions 
that the FAA is making due to 49 CFR part 40, see the Department of 
Transportation's discussion in the preamble published concurrently with 
this final rule. In addition to the FAA's changes that are directly due 
to changes in 49 CFR part 40, the FAA is making 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 Final Rule is that its 
economic impact is minimal. Since the costs and benefits of this 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. These FAA amendments are being made 
because of DOT changes to 49 CFR part 40 and have no incremental 
economic impacts on their own, and the additional clarifying changes 
that are being made impose no new requirements; they 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.
    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.
    The changes in this action make the FAA regulations consistent with 
the new requirements of 49 CFR part 40. In its rulemaking, the DOT 
performed an economic analysis of the changes made to 49 CFR part 40 
and the impact of the changes on the modal industries. In addition to 
the changes being made because of the new 49 CFR part 40, the FAA is 
making revisions to conform to the current 14 CFR part 67. None of 
these changes, on their own, have incremental economic impacts. The FAA 
certifies that the rule does 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 rule and has determined that it 
has no effect on any trade-sensitive activity.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 (the Act), enacted as 
Public Law 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 rule does not contain such a mandate. Therefore, the 
requirements of Title II of the Unfunded Mandates Reform Act of 1995 do 
not apply.

[[Page 41966]]

Executive Order 13132, Federalism

    The FAA has analyzed this rule under the principles and criteria of 
Executive Order 13132, Federalism. We determined that this action does 
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 final rule does 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), this 
rulemaking action qualifies for a categorical exclusion.

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 final rule 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 Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration amends 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 is revised 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, 45101-45105, 46105.


    2. Amend appendix I to part 121 as follows:
    A. Revise section I;
    B. In section II, revise the definitions of ``Prohibited drug'', 
``Refusal to submit'', ``Verified negative drug test result'', and 
``Verified positive drug test result'';
    C. Revise section IV;
    D. In section V, revise paragraphs C. 6, F., G.2., G3., and G.4;
    E. In section VI, revise paragraphs A. and B., remove paragraph C., 
redesignate paragraphs D., E., and F. as paragraphs C., D., and E., 
respectively, and revise newly redesignated paragraph C;
    F. In section VII, revise the heading of the section, revise 
paragraphs A, B, and C, and remove paragraph D;
    G. In section IX, revise the introductory text in paragraph 4, 
remove paragraph 4(b), redesignate paragraph 4(c) as paragraph 4(b) and 
revise it, revise paragraph 6;
    H. In section X, revise paragraph F;
    I. In section XII, revise the heading of the section and the 
introductory text in paragraph A; and
    J. 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 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. * * *
* * * * *
    Prohibited drug means marijuana, cocaine, opiates, phencyclidine 
(PCP), and amphetamines, as specified in 49 CFR 40.85.
    Refusal to submit means that a covered employee engages in 
conduct specified in 49 CFR 40.191.
* * * * *
    Verified negative drug test result 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 result 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. * * *
* * * * *
    C. Random Testing.
* * * * *
    6. The employer shall randomly select a sufficient number of 
covered employees for testing during each calendar year to equal an 
annual rate not less than the minimum annual percentage rate for 
random drug testing determined by the Administrator. If the employer 
conducts random drug testing through a Consortium/Third-party 
administrator (C/TPA), the number of employees to be tested may be 
calculated for each individual employer or may be based on the total 
number of covered employees covered by the C/TPA who are subject to 
random drug testing at the same minimum annual percentage rate under 
this part or any DOT drug testing rule.
* * * * *
    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 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 conducted in 
accordance with the provisions of 49 CFR part 40, but shall consist 
of at least six tests in the first 12 months following the 
employee's return to duty.
    3. The employer 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

[[Page 41967]]

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 employer 
shall ensure that the former MRO forwards all records maintained 
pursuant to this rule to the new MRO within ten working days of 
receiving notice from the employer of the new MRO's name and 
address.
    3. Any employer obtaining MRO services by contract, including a 
contract through a C/TPA, shall ensure that the contract includes a 
recordkeeping provision that is consistent with this paragraph, 
including requirements for transferring records to a new MRO.
    B. Access to Records. The employer and the MRO shall permit the 
Administrator or the Administrator's representative to examine 
records required to be kept under this appendix and 49 CFR part 40. 
The Administrator or the Administrator's representative may require 
that all records maintained by the service agent for the employer 
must be produced at the employer's place of business.
    C. Release of Drug Testing Information. An employer shall 
release information regarding an employee's drug testing results, 
evaluation, or rehabilitation to a third party in accordance with 49 
CFR part 40. Except as required by law, this 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, in addition to notifying the employer in accordance with 
49 CFR part 40, the MRO must forward to the Federal Air Surgeon, at 
the address listed in paragraph 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 medical certificate or a 
special issuance medical certificate from the Federal Air Surgeon. 
The receipt of a medical certificate or 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. The employer cannot permit an employee who is required to 
hold a medical certificate under part 67 of this chapter to perform 
a safety-sensitive duty to resume that duty until the employee has 
received a medical certificate or a special issuance medical 
certificate from the Federal Air Surgeon unless and until the 
employer has ensured that the employee meets the return-to-duty 
requirements in accordance with 49 CFR part 40.
    5. Reports required under this section shall be forwarded to the 
Federal Air Surgeon, Federal Aviation Administration, Attn: Drug 
Abatement Division (AAM-800), 800 Independence Avenue, SW., 
Washington, DC 20591.
* * * * *
    IX. Employer's Antidrug Program Plan. A. Schedule for Submission 
of Plans and Implementation. * * *
* * * * *
    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), may submit an antidrug 
program plan to the FAA for approval on a form and in a manner 
prescribed by the Administrator.
* * * * *
    (b) Each contractor shall implement its antidrug program in 
accordance with the terms of its approved plan.
* * * * *
    6. Each employer, or contractor company that has submitted an 
antidrug plan directly to the FAA, shall obtain appropriate approval 
from the FAA prior to changing programs.
* * * * *
    X. Reporting of Antidrug Program Results.
* * * * *
    F. A C/TPA 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 C/TPA. A 
C/TPA must not sign the form.
* * * * *
    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 Independence Avenue, SW., Washington, DC 
20591.
    C. The Administrator may grant a waiver subject to 49 CFR 
40.21(d).


    3. Amend appendix J to part 121 as follows:
    A. In section I, redesignate paragraphs C through F as paragraphs D 
through G, add new paragraph C, and amend newly redesignated paragraph 
D to remove the definitions for ``Confirmation Test'', ``Consortium'', 
and ``Screening Test'', to remove the definition of ``Refuse to submit 
(to an alcohol test)'' and to add the definition ``Refusal to submit'' 
in alphabetical order;
    B. In section III, revise paragraph A, revise the heading of 
paragraph B, and revise paragraphs B.2 and C.6; remove paragraph 
D.4.(b); redesignate paragraphs D.4.(c) and D.4.(d) as paragraphs 
D.4.(b) and D.4.(c); revise newly redesignated paragraph D.4.(c); and 
revise paragraphs E and F;
    C. In section IV, revise paragraphs A., B.8, C.2 and C.3, and 
remove paragraphs C.4 through C.8;
    D. In section V, revise paragraph C.4 and add paragraph C.5;
    E. In section VI, revise the section heading and paragraph C; and
    F. In section VII, remove paragraphs A.3 and A.8; redesignate 
paragraphs A.4 through A.7 as paragraphs A.3 through

[[Page 41968]]

A.6, respectively, revise newly redesignated paragraph A.6, redesignate 
paragraph A.9 as paragraph A.7 and revise it; remove paragraph B.1(d); 
redesignate paragraph B.1(e) as paragraph B.1(d); remove paragraph B.2.
    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 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.
* * * * *

C. Random Testing

* * * * *
    6. The employer shall randomly select a sufficient number of 
covered employees for testing during each calendar year to equal an 
annual rate not less than the minimum annual percentage rate for 
random alcohol testing determined by the Administrator. If the 
employer conducts random testing through a Consortium/Third-party 
administrator (C/TPA), the number of employees to be tested may be 
calculated for each individual employer or may be based on the total 
number of covered employees who are subject to random alcohol 
testing at the same minimum annual percentage rate under this 
appendix or any DOT alcohol testing rule.
* * * * *

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 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 SAP.
    2. The number and frequency of such testing shall be determined 
by the employer's SAP, but must consist of at least six tests in the 
first 12 months following the employee's return to duty.
    3. The employer 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.

B. Reporting of Results in a Management Information System

* * * * *
    8. A C/TPA 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 C/TPA. A 
C/TPA must not sign the form.

C. Access to Records and Facilities

* * * * *

[[Page 41969]]

    2. A covered employee is entitled, upon written request, to 
obtain copies of any records pertaining to the employee's use of 
alcohol, including any records pertaining to his or her alcohol 
tests in accordance with 49 CFR part 40. The employer shall promptly 
provide the records requested by the employee. Access to an 
employee's records shall not be contingent upon payment for records 
other than those specifically requested.
    3. Each employer shall permit access to all facilities utilized 
in complying with the requirements of this appendix to the Secretary 
of Transportation or any DOT agency with regulatory authority over 
the employer or any of its covered employees.

V. Consequences for Employees Engaging in Alcohol-Related Conduct

* * * * *

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 (SAP) Duties

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

VII. Employer's Alcohol Misuse Prevention Program

A. Schedule for Submission of Certification Statements and 
Implementation

* * * * *
    6. The duplicate certification statement shall be annotated 
indicating receipt by the FAA and returned to the employer or 
contractor company.
    7. Each employer, and each contractor company that submits a 
certification statement directly to the FAA, shall notify the FAA of 
any proposed change in status, (e.g., join another carrier's 
program) prior to the effective date of such change. The employer or 
contractor company must ensure that it is continuously covered by an 
FAA-mandated alcohol misuse prevention program.
* * * * *

    Issued in Washington, DC on July 17, 2001.
Jane F. Garvey,
Administrator.

[FR Doc. 01-19231 Filed 8-2-01; 4:41 pm]
BILLING CODE 4910-13-U