[Federal Register Volume 67, Number 40 (Thursday, February 28, 2002)]
[Proposed Rules]
[Pages 9366-9382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-3847]



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Part III





Department of Transportation





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Federal Aviation Administration



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14 CFR Part 121



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

  Federal Register / Vol. 67, No. 40 / Thursday, February 28, 2002 / 
Proposed Rules  

[[Page 9366]]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 121

[Docket No. FAA-2002-11301; Notice No. 02-04]
RIN 2120-AH14


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: After a number of years of experience inspecting the aviation 
industry's Antidrug and Alcohol Misuse Prevention Programs, the FAA is 
proposing to clarify regulatory language, increase consistency between 
the antidrug and alcohol misuse prevention program regulations where 
possible, and revise regulatory provisions as appropriate. 
Specifically, the FAA proposes to change the antidrug plan and alcohol 
misuse prevention certification statement submission requirements for 
employers and contractors. The FAA proposes to revise the timing of 
pre-employment testing. The FAA also proposes to modify the reasonable 
cause and reasonable suspicion testing requirements. The FAA believes 
that changing the regulations would improve safety and lessen a burden 
on the regulated public.

DATES: Send your comments on or before May 29, 2002.

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-
2002-11301 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, AAM-800, Drug 
Abatement Division, Office of Aerospace Medicine, Federal Aviation 
Administration, Washington, DC 20591, telephone number (202) 267-8442.

SUPPLEMENTARY INFORMATION:

Comments Invited

    The FAA invites interested persons to participate in this 
rulemaking by submitting written comments, data, or views. We also 
invite comments relating to the economic, environmental, energy, or 
federalism impacts that might result from adopting the proposals in 
this document. The most helpful comments reference a specific portion 
of the proposal, explain the reason for any recommended change, and 
include supporting data. We ask that you send us two copies of written 
comments.
    We will file in the docket all comments we receive, as well as a 
report summarizing each substantive public contact with FAA personnel 
concerning this proposed rulemaking. The docket is available for public 
inspection before and after the comment closing date. If you wish to 
review the docket in person, go to the address in the ADDRESSES section 
of this preamble between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays. You may also review the docket using the 
Internet at the web address in the ADDRESSES section.
    Before acting on this proposal, we will consider all comments we 
receive on or before the closing date for comments. We will consider 
comments filed late if it is possible to do so without incurring 
expense or delay. We may change this proposal in light of the comments 
we receive.
    If you want the FAA to acknowledge receipt of your comments on this 
proposal, include with your comments a pre-addressed, stamped postcard 
on which the docket number appears. We will stamp the date on the 
postcard and mail it to you.

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 five 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 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.

General Information

    The General Information portion of the preamble is organized as 
follows:
     Background information about the drug and alcohol rules 
(14 CFR part 121, appendices I and J, respectively).
     Two charts highlighting the proposed principal and 
clarifying changes to appendix I.
     Two charts highlighting the proposed principal and 
clarifying changes in appendix J.
     Detailed, section-by-section discussion of the proposed 
changes to:
     Appendix I.
     Appendix J.

Background Information About the Drug and Alcohol Rules

    The Antidrug and Alcohol Misuse Prevention Programs added to a long 
history of FAA actions to combat the use of drugs and alcohol in the 
aviation industry. For many decades the FAA has had regulations 
prohibiting crewmembers from operating aircraft under the influence of 
alcohol or drugs that impair their ability to operate the aircraft. As 
a result of the broad use of drugs in American society, the FAA 
initiated a rulemaking in the 1980s to test persons performing safety 
functions in the commercial aviation industry for certain illegal 
drugs.
    After publishing an Advance Notice of Proposed Rulemaking in 1986 
(51 FR 44432; December 9, 1986) and a Notice of Proposed Rulemaking 
(NPRM) in 1988 (53 FR 8368; March 14, 1988), on November 14, 1988, the 
FAA published a final rule entitled, Antidrug Program for Personnel 
Engaged in Specified Aviation Activities, (53 FR 47024), which required 
specified aviation employers and operators to initiate antidrug 
programs for personnel performing safety-sensitive functions.
    Congress enacted the Omnibus Transportation Employee Testing Act of 
1991, (the Act), which amended the Federal Aviation Act of 1958 to 
provide a statutory mandate for drug and alcohol testing of air carrier 
employees. To conform with the Act, the Office of the Secretary of 
Transportation (OST) coordinated the efforts of Department of 
Transportation (DOT) modal administrations to address the issue of

[[Page 9367]]

alcohol use testing in the transportation industries. Rulemakings were 
initiated under the provisions of the Omnibus Transportation Employee 
Testing Act of 1991 (Public Law 102-143, Title V). The FAA published an 
NPRM related to industry drug testing requirements in 1994 (59 FR 7412; 
February 15, 1994), and on August 19, 1994, the FAA published a final 
rule, Antidrug Program for Personnel Engaged in Specified Aviation 
Activities (59 FR 42911). The August 19, 1994, final rule incorporated 
clarifying and substantive changes to address provisions of the 
antidrug rule that were unclear or did not comport with revised DOT 
drug testing procedures. With respect to alcohol testing, the FAA 
published an NPRM in 1992 (57 FR 59458; December 15, 1992), and then on 
February 15, 1994, published a final rule, Alcohol Misuse Prevention 
Program for Personnel Engaged in Specified Aviation Activities (59 FR 
7380). The final rule required certain aviation employers to conduct 
alcohol testing.
    The FAA's regulatory efforts have proven to be effective in both 
detecting and deterring illegal drug use and alcohol misuse in the 
aviation industry. From 1990 through 1998, aviation employers required 
to report have told the FAA that 13,074 positive pre-employment test 
results have occurred. Since pre-employment drug testing is the gateway 
through which a person must pass before entering a safety-sensitive 
job, pre-employment testing has proven to be an effective detection 
tool for the aviation industry. The success of the aviation industry in 
implementing the FAA's drug testing regulations is further evidenced by 
the 8,270 positive drug tests under all other forms of drug testing 
required by the FAA, as reported by the employers required to report 
between 1990 and 1998. The FAA regulations have been effective in 
deterring illegal drug use, as shown by the fact that the industry rate 
of positive random test results has remained below one percent during 
the 8 years (1990-1998) for which data are available. Similarly, in the 
context of alcohol tests conducted since 1995, employers have reported 
a total of 490 breath alcohol test results of 0.04 or greater on all 
alcohol tests given, but the total rate of random alcohol test results 
of 0.04 or greater has remained below 0.5 percent for 5 consecutive 
years.
    While the drug and alcohol testing regulations have been 
successful, experience with the testing regulations has led the FAA to 
identify some aspects of the regulations that need to be amended. These 
amendments involve reasonable cause drug testing, reasonable suspicion 
alcohol testing, periodic drug testing, the approval process of 
antidrug program plans, and the approval process of certification 
statements for alcohol misuse prevention programs. The FAA is proposing 
to clarify regulatory language, increase consistency between the 
antidrug and alcohol misuse prevention program regulations, and 
eliminate regulatory provisions that are no longer appropriate. In 
addition, the Office of Aviation Medicine has changed its name to the 
Office of Aerospace Medicine. In this NPRM, the FAA has corrected the 
office name in rule sections that were otherwise being changed. In the 
final rule, the FAA will correct the office name in any other rule 
sections necessary.

Charts Describing the Proposed Changes

          Proposed Principal Changes--Appendix I (Drug Testing)
------------------------------------------------------------------------
 Current section number and title                  Summary
------------------------------------------------------------------------
Section II. Definitions...........   Proposes to change the
                                     definition of employer to clarify
                                     that an employer may use a contract
                                     employee who is not included under
                                     that employer's drug program to
                                     perform a safety-sensitive function
                                     only if that contract employee is
                                     subject to the requirements of a
                                     contractor's FAA-mandated antidrug
                                     program and is performing work
                                     within the scope of employment with
                                     the contractor.
Section V. Types of Testing          Proposes to change
 Required.                           paragraph A., ``Pre-employment
                                     Testing,'' to require pre-
                                     employment testing before hiring or
                                     transferring an individual to
                                     perform a safety-sensitive
                                     position.
                                     Proposes to require
                                     employers to conduct another pre-
                                     employment test for applicants or
                                     employees who transfer to safety-
                                     sensitive positions if more than 60
                                     days elapse between a pre-
                                     employment test and placing the
                                     individual in a safety-sensitive
                                     position.
                                     Proposes to eliminate
                                     periodic drug testing since it was
                                     a transitional requirement and is
                                     no longer needed.
                                     Proposes to change
                                     paragraph E. to allow employers to
                                     make a reasonable cause
                                     determination on contract employees
                                     who are performing safety-sensitive
                                     functions on the employer's
                                     premises and under the supervision
                                     of the employer.
Section IX. Implementing an          Proposes to change the
 Antidrug Program.                   title of the section.
                                     Proposes to change the FAA
                                     antidrug plan approval process by
                                     eliminating the requirement for
                                     plan approvals. Instead the FAA
                                     proposes to require:
                                    --New and existing part 121 and 135
                                     certificate holders to obtain an
                                     Antidrug and Alcohol Misuse
                                     Prevention Program Operations
                                     Specification. Only one operations
                                     specification would be required for
                                     both the drug and alcohol programs,
                                     and certificate holders would have
                                     to provide less information than is
                                     currently required.
                                    --New and existing part 145
                                     certificate holders that opt to
                                     have their own FAA testing programs
                                     because they perform safety-
                                     sensitive functions for an employer
                                     to obtain an Antidrug and Alcohol
                                     Misuse Prevention Program
                                     Operations Specification. Only one
                                     operations specification would be
                                     required for both the drug and
                                     alcohol programs, and certificate
                                     holders would have to provide less
                                     information than is currently
                                     required.
                                    --All other entities required or
                                     opting to have an antidrug and
                                     alcohol misuse prevention programs
                                     to register with the FAA. Only one
                                     registration would be required for
                                     both the Antidrug and Alcohol
                                     Misuse Prevention Programs, and
                                     entities would have to provide less
                                     information than is currently
                                     required.
                                     Proposes to eliminate the
                                     60-day timeframe for employers to
                                     ensure that contractors and part
                                     145 certificate holders that
                                     perform safety-sensitive functions
                                     are subject to an antidrug program.
                                     Proposes to require updates
                                     to registration information as
                                     changes occur.
                                     Proposes to clarify that
                                     employers may use contractors
                                     (including part 145 certificate
                                     holders) to perform safety-
                                     sensitive functions only if the
                                     contractors are subject to an
                                     antidrug program for the entire
                                     time they are performing safety-
                                     sensitive functions.
------------------------------------------------------------------------


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         Proposed Clarifying Changes--Appendix I (Drug Testing)
------------------------------------------------------------------------
 Current section number and title                  Summary
------------------------------------------------------------------------
Section I. General................   Proposes to add a paragraph
                                     that lists applicable regulations.
                                     Proposes to add a paragraph
                                     to prohibit falsification of any
                                     logbook, record, or report.
Section II. Definitions...........   Proposes to change the
                                     defined term ``contractor company''
                                     to ``contractor'' to emphasize that
                                     ``contractor'' could mean an
                                     individual or a company.
                                     Proposes to change the
                                     definition of ``Employee'' to
                                     eliminate unnecessary language.
Section III. Employees Who Must Be   Proposes to clarify that
 Tested.                             all employees who perform safety-
                                     sensitive functions, i.e., full-
                                     time, part-time, temporary, and
                                     intermittent employees, are subject
                                     to an antidrug program regardless
                                     of the degree of supervision.
                                     Proposes to clarify that
                                     employees who are in a training
                                     status and perform safety-sensitive
                                     functions are subject to an
                                     antidrug program.
                                     Proposes to clarify that
                                     each person who performs a safety-
                                     sensitive function directly or by
                                     any tier of a contract for an
                                     employer is subject to testing.
Section V. Types of Drug Testing     Proposes to clarify pre-
 Required.                           employment notification
                                     requirements.
                                     Proposes to clarify random
                                     testing requirements. Similar
                                     language is used in appendix J.
------------------------------------------------------------------------


        Proposed Principal Changes--Appendix J (Alcohol Testing)
------------------------------------------------------------------------
 Current section number and title                  Summary
------------------------------------------------------------------------
Section III. Tests Required.......   Proposes to change
                                     paragraph D. to allow employers to
                                     make a reasonable suspicion
                                     determination on contract employees
                                     who are performing safety-sensitive
                                     functions on the employer's
                                     premises and under the supervision
                                     of the employer.
Section IV. Handling of Testing      Proposes to add language in
 Results, Record Retention, and      paragraph B.4. that mirrors
 Confidentiality.                    language in appendix I.
Section VII. Implementing an         Proposes to eliminate the
 Alcohol Misuse Prevention Program.  FAA Alcohol Misuse Prevention
                                     Certification Statement. Instead
                                     the FAA proposes to require:
                                    --New and existing part 121 and 135
                                     certificate holders to obtain an
                                     Antidrug and Alcohol Misuse
                                     Prevention Program Operations
                                     Specification. Only one operations
                                     specification would be required for
                                     both the drug and alcohol programs,
                                     and certificate holders would have
                                     to provide less information than is
                                     currently required.
                                    --New and existing part 145
                                     certificate holders that opt to
                                     have their own FAA testing programs
                                     because they perform safety-
                                     sensitive functions for an employer
                                     to obtain an Antidrug and Alcohol
                                     Misuse Prevention Program
                                     Operations Specification. Only one
                                     operations specification would be
                                     required for both the drug and
                                     alcohol programs, and certificate
                                     holders would have to provide less
                                     information than is currently
                                     required.
                                    --All other entities required or
                                     opting to have an antidrug and
                                     alcohol misuse prevention programs
                                     to register with the FAA. Only one
                                     registration would be required for
                                     both the drug and Alcohol programs
                                     and entities would have to provide
                                     less information than is currently
                                     required.
                                     Proposes to eliminate the
                                     180-day timeframe for employers to
                                     ensure that their contractors and
                                     part 145 certificate holders that
                                     perform safety-sensitive functions
                                     are subject to an alcohol misuse
                                     prevention program.
                                     Proposes to require updates
                                     to registration information as
                                     changes occur.
                                     Proposes to require
                                     employers to only use contractors
                                     to perform safety-sensitive
                                     functions who are covered by an
                                     alcohol misuse prevention program
                                     for the entire period they perform
                                     safety-sensitive work.
------------------------------------------------------------------------


        Proposed Clarifying Changes--Appendix J (Alcohol Testing)
------------------------------------------------------------------------
          Section number                           Summary
------------------------------------------------------------------------
Section I. General................   Proposes to eliminate in
                                     paragraph D. the definition of
                                     Administrator, because it is
                                     defined elsewhere in the
                                     regulations.
                                     Proposes to eliminate in
                                     paragraph D. the definition of
                                     consortium.
                                     Proposes to change in
                                     paragraph D. the defined term
                                     ``contractor company'' to
                                     ``contractor'' to emphasize that
                                     ``contractor'' could mean an
                                     individual or a company.
                                     Proposes to add paragraph
                                     H. that lists applicable
                                     regulations.
                                     Proposes to add paragraph
                                     I. to prohibit falsification of any
                                     logbook, record, or report.
II. Covered Employees.............   Proposes to clarify that
                                     each person who performs a safety-
                                     sensitive function directly or by
                                     any tier of a contract for an
                                     employer is subject to testing.
                                     Proposes to clarify in this
                                     section that all employees who
                                     perform safety-sensitive functions,
                                     i.e., full-time, part-time,
                                     temporary, and intermittent
                                     employees, are subject to an
                                     alcohol misuse prevention program
                                     regardless of the degree of
                                     supervision.
                                     Proposes to clarify that
                                     employees who are in a training
                                     status and perform safety-sensitive
                                     functions are subject to an alcohol
                                     misuse prevention program.
------------------------------------------------------------------------


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Section-by-Section Discussion of the Proposals

Appendix I--Drug Testing Program

I. General

    By this action the FAA proposes to add two paragraphs to this 
section: ``Applicable Federal Regulations'' and ``Falsification.'' 
These paragraphs are designated ``D.'' and ``E.'' respectively. 
Proposed Paragraph D. includes a list of regulations dealing with 
the antidrug and the alcohol misuse prevention programs. FAA is 
proposing this list to help employers and other individuals find 
applicable regulatory citations. Telephone inquiries to the FAA 
indicate that aviation employers have a difficult time finding the 
regulations relating to the aviation industry antidrug program. 
Paragraph E., ``Falsification,'' proposes to specifically prohibit 
falsification of any logbook, record, or report required to be 
maintained under the regulations to show compliance with appendix I. 
Similar language also is used in the following regulations: 14 CFR 
21.2, 61.59, 63.20, and 65.20.

II. Definitions

    This action proposes to:
     Change the defined term from ``contractor company'' to 
``contractor'' to emphasize that a contractor can be an individual 
or a company who contracts with an aviation employer. While our 
experience shows that most aviation employers already understand 
that a contractor can be a single individual or a company, we have 
proposed this change to eliminate any possible confusion.
     Change the definition of ``employee'' to clarify that 
an employee is either a person hired, directly or by contract, to 
perform a safety-sensitive function for an employer or transferred 
into a position to perform a safety-sensitive function. We also 
propose eliminating the sentence ``Provided, however, that an 
employee who works for an employer who holds a part 135 certificate 
and who holds a 121 certificate is considered to be an employee of 
the part 121 certificate holder for purposes of this appendix.'' 
This language was used at the beginning of the program when 
companies were implementing programs on a phased-in schedule. 
Because that is no longer the case, the sentence is now confusing 
and unnecessary.
     Change the definition of ``employer'' to clarify that 
an employer may use a contract employee who is not included under 
that employer's drug program to perform a safety-sensitive function 
only if that contract employee is subject to the requirements of a 
contractor's FAA-mandated antidrug program and is performing work 
within the scope of employment with the contractor.
    The proposal related to the definition of employer is necessary 
to close a loophole in the current rule language. Currently, if an 
employee is covered under an employer's drug testing program 
(Employer A), another employer (Employer B) may use that employee to 
perform safety-sensitive functions. This authority was designed to 
allow individuals employed by one company to perform safety-
sensitive functions for another company without the individuals 
being subject to multiple testing programs. The current language, 
however, permits performance of a safety-sensitive function by an 
employee of Employer A for Employer B even when the work is 
unrelated to the employee's work with Employer A. In many cases, 
Employer A is unaware of its employee's activities for Employer B. 
In the event of an accident, Employer B could not subject that 
employee to a post accident test, because the employee is not 
included in that employer's drug testing program. As noted above, 
Employer A might not be aware of the need to test the employee, or 
even if it were aware, it might not agree to test the employee if 
the employee was not performing a safety sensitive function within 
the scope of employment with Employer A. In the example above, 
Employer A, Employer B, and the individual involved would be in 
compliance with the current rule. It was not the intent of the FAA 
in promulgating the current provision to create a situation where a 
person performing a safety-sensitive function could avoid being 
tested.
    Even where an employer (Employer B) contacts an employee's 
primary employer (Employer A) to ensure that the employee is covered 
by its antidrug program, there is no way to ensure that the employee 
is not subsequently dropped from Employer A's program. Moreover, 
Employer B is unlikely to know if the employee has tested positive 
on a drug test or has refused to submit to testing under Employer 
A's program.
    The proposed change would not affect the ability of an employer 
to use contractor employees to perform safety-sensitive duties if 
those employees are under the FAA antidrug and alcohol misuse 
prevention program of the contractor and are performing safety-
sensitive functions within the scope of employment of the 
contractor. It is reasonable and anticipated that a contractor may 
choose to provide antidrug and alcohol misuse prevention program 
coverage of its own employees as part of the services it renders to 
its clients.
    Following are examples to help clarify the above:
    1. Employer A is a part 121 operator and has an antidrug 
program. Included under employer A's drug program are maintenance 
employees who perform safety-sensitive duties. Employer B is a part 
135 operator and also has an antidrug program. Employer B needs a 
maintenance employee to perform safety-sensitive duties for several 
days because its maintenance employee is out sick. Employer B 
contracts with Employer A for Employer A's maintenance employee to 
assist Employer B for several days.
    Question: Must Employer B pre-employment test this employee and 
include the employee in its program?
    Answer: No, the employee is still the employee of Employer A, 
who contracted out to Employer B, and is performing work within the 
scope of his/her employment with Employer A.
    2. Employer A has an antidrug program for pilots who perform 
safety-sensitive duties. One of the pilots is looking for a part-
time job. The pilot applies for a position with Employer B, a part 
135 operator that is looking for a part-time pilot to perform 
safety-sensitive duties. The pilot advises Employer B that he is in 
Employer A's antidrug program, but Employer B has not contracted 
with Employer A for the pilot's services.
    Question: Must Employer B pre-employment drug test the pilot and 
put him/her in its program?
    Answer: Yes. Because Employer B has not contracted with Employer 
A for the pilot's services, the pilot's work with Employer B is 
outside his/her scope of employment with Employer A.

III. Employees Who Must be Tested

    The FAA is proposing to clarify that the decision to cover an 
employee must be based on the duties that the individual performs 
rather than employment status (full time, part time, temporary or 
intermittent) or job title. The proposed language is not intended to 
change the current rule's scope. Rather, the FAA is proposing to 
directly specify that the testing obligations apply to temporary and 
intermittent employees who perform safety-sensitive functions, 
regardless of the degree of supervision. This proposed change 
clarifies that the regulation applies to employees, such as 
mechanic's helpers, who sometimes perform safety-sensitive 
functions. The proposed change also clarifies that employees in a 
training status who perform safety-sensitive functions are covered 
by the regulation. The proposed clarification is important because 
experience, correspondence with the aviation industry, and 
compliance inspections and investigations show that employers do not 
always understand which employees must be tested.
    The FAA is proposing to clarify that each person who performs a 
safety-sensitive function directly or by any tier of a contract for 
an employer is subject to testing. This is not a substantive change 
because the current rule language states that anyone who performs a 
safety-sensitive function ``directly or by contract'' must be 
tested. The regulations have always required that any person 
actually performing a safety-sensitive function be tested, and we 
are proposing to clarify that performance ``by contract'' means 
performance under any tier of a contract. However, some maintenance 
providers may be confused about testing employees performing work 
under a subcontract because of conflicting guidance provided by the 
FAA. In the initial implementation phase of the drug testing rule in 
1989, the FAA issued informal guidance entitled ``Implementation 
Guidelines for the FAA Anti-drug Program,'' and in 1990 the FAA 
issued informal guidance entitled ``Most Frequently Asked Questions 
About the Aviation Industry Anti-Drug Program,'' both of which 
stated that maintenance subcontractors would not be required to test 
unless they took airworthiness responsibility for the work that they 
were performing. This guidance was never officially published in an 
FAA Advisory Circular or other official FAA policy vehicle, however 
it was provided widely to persons and companies in 1989 and 1990, 
and on an ad hoc basis thereafter until the mid-1990s. This guidance

[[Page 9370]]

constricted the potential reach of the plain language of the 
regulation as it applied to contractors. The potential reach of 
performing by ``contract'' is not actually limited to those who have 
a direct contract with the air carrier, but would include anyone who 
is performing work described in the original contract between the 
prime contractor and the air carrier. If the term ``contract'' were 
to be limited to the entity in direct relationship with the air 
carrier, then the air carrier could not enter into any contract that 
permitted subcontracting unless the contract also required the 
subcontractors to conduct the required testing. Otherwise, the air 
carrier would be in violation of the regulation by contracting for 
maintenance by persons who are not subject to testing.
    The initial guidance restricting the scope of drug testing of 
contractors to exclude some subcontractors facilitated the 
implementation of the new drug testing requirements as soon as 
possible without disrupting the ability of air carriers to obtain 
critical maintenance on a contractual basis. However, unless a 
contracting company received a copy of the guidance or an individual 
letter that reflected the guidance, it would have not known to 
follow anything other than the rule language, which did not exclude 
subcontractors who did not sign off on the airworthiness of the work 
performed. In addition, soon after the drug testing rule became 
effective, in order to be prepared to perform work by contract for 
air carriers, small and large maintenance providers obtained drug 
and alcohol testing programs regardless of whether they were 
performing as a subcontractor or a prime contractor to an employer. 
The reality of the industry is that often a company performing 
maintenance for an air carrier may be performing as a prime 
contractor today and as a subcontractor tomorrow. Consequently, 
there is an essentially pervasive system of drug and alcohol testing 
in the maintenance side of commercial aviation, where both 
contractors and subcontractors have obtained drug-testing plans, 
without any distinction between their contracting versus 
subcontracting duties.
    The constriction of the scope of testing of contractors 
developed at the beginning of the program is in conflict with the 
goal of having each person who performs a safety-sensitive function 
actually tested to ensure that he or she is not impaired. This early 
guidance had a safety net because it limited the exclusion of 
subcontractors to those circumstances where the subcontractor did 
not take airworthiness responsibility, therefore there was another 
level in the system overseeing the work. However, it is the FAA's 
clear policy to require that anyone who is actually performing 
maintenance is tested in accordance with the regulations.
    As drug and alcohol testing became pervasive in the aviation 
maintenance area, FAA's informal guidance ceased to reference the 
limited subcontractor exception and entities were advised to test 
all persons actually performing maintenance directly or by contract 
for an air carrier. However, some entities may be unaware of this 
change and others have continued to rely on the earlier informal 
guidance to avoid testing the subcontractors who are actually 
performing maintenance. Prior to this notice, the informal guidance 
was never formally withdrawn. The FAA is proposing to add language 
to the rule to emphasize that each person who performs a safety-
sensitive function directly or by any tier of a contract for an 
employer is subject to testing and FAA will rescind the conflicting 
informal guidance regarding subcontractors. We are seeking comment 
on our proposal to clarify this subject.

V. Types of Drug Testing Required

V.A. Pre-Employment Testing

    As discussed earlier, 13,074 positive pre-employment tests have 
been reported to the FAA in the last decade, demonstrating that such 
tests are an effective detection tool. Pre-employment testing is 
directly tied to aviation safety, in that it is a gateway to safety-
sensitive positions. Failure of a pre-employment test is a direct 
barrier to a person's entry into safety-sensitive work. Thus, it is 
vital that the language requiring pre-employment testing be as clear 
as possible in order to maximize the efficiency of its use.
    Originally, the antidrug regulation published in 1988 said, ``No 
employer may hire any person to perform a function, listed in 
section III. of this appendix, unless the applicant passes a drug 
test for that employer.'' The regulation required pre-employment 
testing before an individual could be hired to perform a function 
specified in the appendix. As interpreted by the FAA, pre-employment 
testing was required of individuals not currently employed by the 
employer, of current employees moving from a non-covered to a 
covered safety-sensitive function, and in circumstances where an 
employee had been removed from the random testing pool for any 
length of time or was unavailable for testing for an extended period 
of time.
    In 1994, the FAA revised its antidrug rule to require pre-
employment testing of an individual only prior to the first time the 
individual performed a safety-sensitive function for an employer. 
This revision was intended to provide employers additional 
flexibility to hire individuals in advance of receiving negative 
test results. Currently an individual must have a verified negative 
drug test result on a pre-employment test prior to performing a 
safety-sensitive function, and the employer must not permit the 
individual to perform such a function until the employer receives 
the verified negative pre-employment test result.
    Experience and enforcement cases have shown that, in the absence 
of the very clear ``hiring'' event, some employers are neglecting to 
do the required pre-employment testing and receive a negative test 
result before allowing employees to perform safety-sensitive 
functions. In the worst cases, this has resulted in employees being 
allowed to perform safety-sensitive functions who have subsequently 
received positive test results. Before the 1994 change, 
misunderstandings were not prevalent. The original language was a 
clearer standard for employers to follow. Because of this, the FAA 
is proposing to reinstitute the requirement for employers to test an 
individual and receive a negative test result prior to hiring the 
individual for a position that involves the performance of a safety-
sensitive position. Therefore, proposed paragraph V.A.1. would 
change the language back to requiring testing and receipt of a 
negative drug test result prior to hiring a person to perform 
safety-sensitive functions.
    Paragraph V.A.2., would require employers to pre-employment drug 
test employees prior to transferring them into a position to perform 
a safety-sensitive function. This paragraph is proposed to clarify 
to employers that pre-employment testing is required whenever an 
employee is ``hired'' to perform a safety-sensitive function, even 
if that ``hiring'' is simply an internal transfer from a nonsafety-
sensitive job to a safety-sensitive job. Therefore, we propose 
adding this clarification immediately after V.A.1., and renumbering 
the remaining provisions in this section.
    At times there are circumstances when individuals are given pre-
employment drug tests in anticipation of being hired or transferred 
to perform a safety-sensitive function. Some people have asked about 
the length of time between a pre-employment test and when an 
employee is placed into an FAA-required drug testing program 
(subject to random, reasonable suspicion, and post-accident 
testing). Sometimes this time can be long, thereby reducing the 
deterrence factor of an on-going testing program. The FAA believes 
that 60 days is an acceptable time between a pre-employment test and 
being brought into a drug testing program because we want to ensure 
that there is not too long a time between the pre-employment test 
and the person being subject to random, reasonable suspicion, and 
post-accident testing while still giving the employer some 
flexibility.

V.B. Periodic Testing

    This action proposes to eliminate Section V.B., periodic 
testing, which was initially imposed due to transitional concerns. 
The current regulation requires that a new employer must periodic 
drug test part 67 medical certificate holders during the first 
calendar year of implementation of its program. However, the new 
employer may discontinue the periodic drug testing of its part 67 
medical certificate holders after the first calendar year of 
implementation of the employer's antidrug program when the employer 
has implemented an unannounced testing program based on random 
selection. Periodic testing was important at the beginning of the 
program when many people were grandfathered into newly approved 
antidrug programs without pre-employment testing. Initially, there 
was also a phase-in period for implementing random testing. 
Employers were not required to meet the annual random testing rate 
until the last collection at the end of the first year of testing. 
Thus, it was likely that a pilot would not be tested in the first 
year of testing. Because all flightcrew members are subject to pre-
employment testing and annual random testing, the FAA believes that 
the elimination of periodic drug testing at this time would not 
compromise safety and would be a cost benefit to those aviation 
industry employers

[[Page 9371]]

implementing drug programs that include the testing of airmen. Also, 
there is no periodic testing requirement in appendix J. Because of 
the elimination of periodic testing, the remaining paragraphs in 
this section would be relettered accordingly.

V.C. Random Testing

    An additional paragraph would be added to the random testing 
section stating that a safety-sensitive employee must immediately 
proceed to the testing site upon notification of selection for 
random drug testing; provided, however, that if the employee is 
performing a safety-sensitive function at the time of the 
notification, the employer shall instead ensure that the employee 
ceases to perform the safety-sensitive function and proceeds to the 
testing site as soon as possible. A similar requirement has been 
included in appendix J since its implementation in 1994. The 
requirement in appendix J is clear and has worked well. Therefore, 
we are adding a parallel requirement in appendix I. Because of this 
additional paragraph, the remainder of the random testing section is 
relettered accordingly.

V.E. Testing Based on Reasonable Cause

    This action proposes to include the following sentence to 
paragraph V.E., Testing Based on Reasonable Cause: ``An employer may 
make a reasonable cause determination regarding any contract 
employee who performs a safety-sensitive function on the employer's 
premises and under the supervision of the employer, and may refer 
the contract employee for a reasonable cause test under the 
contractor's drug testing program.'' This change is proposed because 
there has been confusion about whether an employer can test contract 
employees on its own premises. The FAA is concerned that some 
contract employees are not being tested for reasonable cause because 
their actual employers are not on-site. For example, employees of 
temporary employment agencies or repair stations may work from a few 
hours to a number of days or months for an employer, but they may be 
covered under the temporary agency's drug and alcohol testing 
programs. In some cases they work independently without supervision 
while others are supervised by the employer who contracted for their 
services. We do not believe that waiting for a contractor to send a 
supervisor to make a determination concerning one of its employees 
makes sense in many circumstances. In some cases, it may be 
impossible for a supervisor of the contractor to arrive in a timely 
manner. Therefore, we propose to change the reasonable cause 
language to allow, but not require, an employer to have its 
supervisors make reasonable cause determinations and refer the 
contract employee for testing under the contractor's drug and 
alcohol programs.
    In addition, this action proposes to delete the two following 
sentences: Each employer shall test an employee's specimen for the 
presence of marijuana, cocaine, opiates, phencyclidine (PCP), and 
amphetamines, or a metabolite of those drugs. An employer may test 
an employee's specimen for the presence of other prohibited drugs or 
drug metabolilties only in accordance with this appendix and the DOT 
Procedures for Transportation Workplace Drug Testing Programs (49 
CFR part 40). This change is proposed because part 40 lists the 
types of drugs and does not allow for testing of any other drugs.

IX. Implementing an Antidrug Program

    We propose eliminating the requirement for companies to have 
FAA-approved plans. Current consortium members would be required to 
either register with the FAA or obtain an Antidrug and Alcohol 
Misuse Prevention Program Operations Specification. In addition, we 
propose changing the title of this section so it more accurately 
reflects the section's content.
    Currently, there is a requirement for each employer to submit an 
antidrug program to the FAA for approval. We propose eliminating 
this requirement for part 121and 135 certificate holders, and for 
part 145 certificate holders who choose to have their own FAA 
testing program. Instead, the FAA would track these certificate 
holders using the FAA's Operations Specifications Sub-System (OPSS). 
OPSS is a document management system that is designed to give the 
FAA ready access to certificate holders' operations specifications. 
Using this system allows the FAA to quickly make a change to a 
specific type of certificate holders' operations specifications and 
to generate the new documents for all of the certificate holders the 
change would affect. This system will eliminate the time-consuming 
process of preparing and producing new operations specifications for 
each carrier. By using OPSS, certificate holders would not need to 
go to two separate FAA offices, the Flight Standards Service and the 
Office of Aerospace Medicine, every time they make a change 
regarding their company. We believe that this change would reduce 
the certificate holder's overall paperwork burden.
    New and existing part 121 and 135 certificate holders, and part 
145 certificate holders who choose to have their own FAA program, 
would be issued an Antidrug and Alcohol Misuse Prevention Operations 
Specification (OpSpec) by their FAA principal operations inspector 
or principal maintenance inspector, as applicable. These certificate 
holders must contact their FAA principal operations inspector or 
principal maintenance inspector, as applicable, to make any required 
changes to the OpSpec. For sample OpSpecs for part 121, 135, and 145 
certificate holders, see below. These are drafts and are subject to 
change in the future.

Sample OPSPEC for Part 121 Certificate Holders

A049  Antidrug and Alcohol Misuse Prevention Program
HQ Control: 05/25/00
HQ Revision: 000

    The certificate holder who operates under Title 14 Code of Federal 
Regulations (CFR) part 121 certifies that it will comply with the 
requirements of 14 CFR part 121 appendices I and J and 49 CFR part 40 
for its Antidrug and Alcohol Misuse Prevention Program.
    a. Antidrug and Alcohol Misuse Prevention Program records are 
maintained and available for inspection by the FAA's Drug Abatement 
Compliance and Enforcement Inspectors at the location listed in Table 1 
below:

Table 1

Date:
Telephone Number:
Address:
Address:
City:
State:
Zip code:

    b. Limitations and Provisions.
    (1) Antidrug and Alcohol Misuse Prevention Program inspections and 
enforcement activity will be conducted by the Drug Abatement Division. 
Questions regarding these programs should be directed to the Drug 
Abatement Division.
    (2) When changes occur to the location or phone number where the 
Antidrug and Alcohol Misuse Prevention Program Records are kept, the 
certificate holder is responsible for updating this operations 
specification.

Sample OPSPEC for Part 135 Certificate Holders

A049. Antidrug and Alcohol Misuse Prevention Program

HQ Control: 05/25/00
HQ Revision: 000

    The certificate holder who operates under Title 14 Code of Federal 
Regulations (CFR) Part 135 certifies that it will comply with the 
requirements of 14 CFR part 121 appendices I and J and 49 CFR part 40 
for its Antidrug and Alcohol Misuse Prevention Program.
    a. Antidrug and Alcohol Misuse Prevention Program records are 
maintained and available for inspection by the FAA's Drug Abatement 
Compliance and Enforcement Inspectors at the location listed in Table 1 
below:

Table 1

Date:
Telephone Number:
Address:
Address:
City:
State:
Zip code:

    b. Limitations and Provisions.
    (1) Antidrug and Alcohol Misuse Prevention Program inspections and 
enforcement activity will be conducted by the Drug Abatement Division. 
Questions regarding this program should be directed to the Drug 
Abatement Division.
    (2) The certificate holder is responsible for updating this 
operations specification when any of the following changes occur:

[[Page 9372]]

    (a) Location or phone number where the Antidrug and Alcohol Misuse 
Prevention Program Records are kept.
    (b) If the certificate holder's number of safety-sensitive 
employees goes to 50 and above or falls below 50 safety-sensitive 
employees.
    (3) The certificate holder or operator with 50 or more employees 
performing a safety-sensitive function on January 1 of the calendar 
year must submit an annual report to the Drug Abatement Division of the 
FAA. The certificate holder or operator with fewer than 50 employees 
performing a safety-sensitive function on January 1 of any calendar 
year must submit an annual report upon request of the Administrator, as 
specified in the regulations.
(Select One)
______The certificate holder/operator has 50 or more safety-sensitive 
employees.
______The certificate holder/operator has fewer than 50 safety-
sensitive employees.

Sample OPSPEC for Part 145 Certificate Holders

    a. If the certificate holder has elected to implement an Antidrug 
and Alcohol Misuse Prevention Program, and the certificate holder 
performs safety-sensitive functions for a 14 CFR part 121, and 135 
certificate holder and/or for a 14 CFR part 91 sightseeing operation as 
defined by Sec. 135.1(c), then the certificate holder who operates 
under Title 14 Code of Federal Regulations (CFR) part 145 certifies 
that it will comply with the requirements of 14 CFR part 121, 
appendices I and J, and 49 CFR part 40 for its Antidrug and Alcohol 
Misuse Prevention Program.
    b. Antidrug and Alcohol Misuse Prevention Program records are 
maintained and available for inspection by the FAA's Drug Abatement 
Compliance and Enforcement Inspectors at the location listed in Table 1 
below:

Table 1

Date:
Telephone Number:
Address:
Address:
City:
State:
Zip code:

    c. Limitations and Provisions.
    (1) Antidrug and Alcohol Misuse Prevention Program inspections and 
enforcement activity will be conducted by the Drug Abatement Division. 
Questions regarding these programs should be directed to the Drug 
Abatement Division.
    (2) The certificate holder is responsible for updating this 
operations specification when any of the following changes occur:
    (a) Location or phone number where the Antidrug and Alcohol Misuse 
Prevention Program Records are kept.
    (b) If the certificate holder's number of safety-sensitive 
employees goes to 50 and above, or falls below 50.
    (3) The certificate holder or operator with 50 or more employees 
performing a safety-sensitive function on January 1 of the calendar 
year must submit an annual report to the Drug Abatement Division of the 
FAA. The certificate holder or operator with fewer than 50 employees 
performing a safety-sensitive function on January 1 of any calendar 
year must submit an annual report upon request of the Administrator, as 
specified in the regulations.
(Select One)
______The certificate holder/operator has 50 or more safety-sensitive 
employees.
______The certificate holder/operator has fewer than 50 safety-
sensitive employees.

    This action also proposes changing the antidrug program plan and 
alcohol misuse prevention program certification statement 
requirements for new and existing air traffic control facilities not 
operated by the FAA or by or under contract to the U.S. military and 
sightseeing operators as defined by Sec. 135.1(c). The proposed 
change would allow a single registration requirement for both 
programs. Likewise, the FAA proposes requiring new and existing non-
certificated contractors that elect to have an antidrug and alcohol 
misuse prevention program to register with the FAA.
    Generally, the proposed registration would require less 
information than the current antidrug plan requires. The only new 
item (for the antidrug program) would be a statement signed by a 
company representative that the company would comply with part 121, 
appendices I and J, and 49 CFR part 40. This proposed registration 
would allow companies to meet their registration requirements for 
both the antidrug program and the alcohol misuse prevention program 
in the same document. The registration information would need to be 
amended whenever changes are made.
    The proposed change to this section would not alter the existing 
requirements for operators that conduct sightseeing flights as 
defined in Sec. 135.1(c) to implement antidrug and alcohol misuse 
prevention programs, except to establish a registration process in 
lieu of submission of an antidrug program plan and an alcohol misuse 
prevention program certification statement to the FAA for approval. 
This proposed change is not intended to affect the applicability of 
the current exemptions from Sec. 135.1(c) for conducting limited 
sightseeing flights for nonprofit charitable or community events.
    This action also proposes eliminating the 60 days allowed for 
new employers to ensure that their contractors are subject to an 
antidrug and alcohol misuse prevention program. Contractor programs 
must be implemented by the time the contractor performs safety-
sensitive functions for an employer. Because of the safety 
implications and since the regulations have been in effect since 
1988, the FAA believes that it is no longer appropriate to grant 
employers extra time to ensure that their contractors are subject to 
an antidrug and alcohol misuse prevention program.
    Similarly, employers (part 121 and 135 certificate holders, 
sightseeing operations as defined in Sec. 135.1(c), and air traffic 
control facilities not operated by the FAA or by or under contract 
to the U.S. military), that participate in another company's 
antidrug and alcohol misuse prevention program would be required to 
either register with the FAA or obtain an Antidrug and Alcohol 
Misuse Prevention Operations Specification. Part 145 repair stations 
and non-certificated contractor companies that are covered under an 
employer's antidrug and alcohol misuse prevention program may 
continue to be covered under the employer's program. As long as they 
continue to be covered under an employer's program they may not 
register with the FAA or obtain an Antidrug and Alcohol Misuse 
Prevention Program Operations Specification. A part 145 certificate 
holder or a non-certificated contractor that performs safety-
sensitive functions for an employer may choose to have its own 
testing programs instead of being covered by an employer's program. 
In that case, the part 145 certificate holder would be required to 
either obtain an Antidrug and Alcohol Misuse Prevention Program 
Operations Specification or register with the FAA as outlined in the 
rule. In every case where an employer or a contractor obtains an 
Antidrug and Alcohol Misuse Prevention Program Operations 
Specification or registers with the FAA, those companies may still 
use a service agent to provide program support.
    The FAA is proposing two formats for the rule language in this 
section. While both proposals have the same regulatory requirements, 
they differ greatly in format. The first option is presented in 
table format as much as possible. The second option follows the 
format of the current rule. The FAA requests comments from the 
public on which format is easier to understand.

Appendix J--Alcohol Misuse Prevention Program

I. General

    This action proposes the following changes in paragraph D. 
Definitions.
     Eliminates the definition of ``Administrator'' because 
it is defined elsewhere in the Federal Aviation Regulations.
     Changes ``Contractor company'' to ``contractor.'' This 
would be a clarifying change to emphasize that a contractor could be 
either an individual or a company who contracts with an aviation 
employer. While experience shows that most aviation employers 
already understand that a contractor can be a single individual or a

[[Page 9373]]

company, we have proposed the change for those who may be uncertain.
    There are two additional paragraphs that would be included in 
this section: ``H. Applicable Federal Aviation Regulations'' and 
``I. Falsification.'' Paragraph H. would include references for 
regulations involving the alcohol misuse prevention programs to help 
employers and other individuals. Paragraph I. would be revised to 
specifically prohibit falsification of any logbook, record, or 
report required to be maintained under the regulations to show 
compliance with appendix J. These proposed changes are consistent 
with proposed changes made in appendix I.

II. Covered Employees

    The FAA is proposing to clarify that the decision to cover an 
employee must be based on the duties that the individual performs 
rather than employment status (full time, part time, temporary, or 
intermittent) or job title. The proposed language is not intended to 
change the current rule's scope. Rather, the FAA is proposing to 
directly specify that the testing obligations apply to temporary and 
intermittent employees who perform safety-sensitive functions, 
regardless of the degree of supervision. The proposed language would 
clarify that employees, such as mechanic's helpers, who sometimes 
perform safety-sensitive functions are covered. It also applies to 
employees in a training status who perform safety-sensitive 
functions. The clarification is important because experience, 
correspondence with the aviation industry, and compliance 
inspections and investigations show that employers do not always 
understand which employees must be tested.
    The FAA is proposing to further clarify that each person who 
performs a safety-sensitive function directly or by any tier of a 
contract for an employer is subject to testing. The current rule 
language states that anyone who performs a safety-sensitive function 
``directly or by contract'' must be tested, however inconsistent 
informal guidance may have caused some confusion in the past. To 
clarify the meaning of the regulation and to avoid future confusion, 
we are proposing to add language to the rule language to emphasize 
that each person who performs a safety-sensitive function directly 
or by any tier of a contract for an employer is subject to testing. 
For additional information on this proposed change, see the 
discussion earlier in the proposed changes to Appendix I.

D. Reasonable Suspicion Testing

    This action proposes to include the following sentence to 
paragraph D.1. under Reasonable Suspicion Testing: ``For the purpose 
of reasonable suspicion testing, an employer may make a reasonable 
suspicion determination regarding any contract employee who performs 
a safety-sensitive function on the employer's premises and under the 
supervision of the employer, and may refer the contract employee for 
a reasonable suspicion test under the contractor's alcohol testing 
program.'' This change is proposed because there has been confusion 
about whether an employer can test contract employees on its own 
premises. The FAA is concerned that some contract employees are not 
being tested on reasonable suspicion. We propose to change the 
reasonable suspicion testing language to allow, but not require, an 
employer to have its supervisors make reasonable suspicion 
determinations and require testing of those contractor employees 
under the contractor's drug and alcohol programs. For additional 
information on this proposed change, see the discussion earlier in 
the proposed changes to appendix I.

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

    We propose to change paragraph B. 4. by adding the sentence ``No 
other form, including another DOT Operating Administration's form, 
is acceptable for submission to the FAA. `` This mirrors language in 
appendix I.

VII. Implementing an Alcohol Misuse Prevention Program

    We propose eliminating the requirement for companies to have 
FAA-approved Antidrug Plan and Alcohol Misuse Prevention Program 
Certification Statements. Currently, there is a requirement for each 
employer to submit an Alcohol Misuse Prevention Program 
Certification Statement to the FAA. We propose eliminating this 
requirement for part 121 and 135 certificate holders, and part 145 
certificate holders who choose to have their own testing program. 
Instead, the FAA would track these certificate holders using the 
FAA's OPSS. For a discussion on this proposal, see the discussion in 
the proposed changes to appendix I.
    New and existing part 121 and 135 certificate holders, and part 
145 certificate holders who choose to have their own program, would 
be issued an Antidrug and Alcohol Misuse Prevention OpSpec by their 
FAA principal operations inspector or principal maintenance 
inspector, as applicable. These certificate holders would have to 
contact their FAA principal operations inspector or principal 
maintenance inspector, as applicable, to make any required changes 
to the OpSpec.
    This action also proposes changing the antidrug program plan and 
alcohol misuse prevention program certification statement 
requirements for new and existing air traffic control facilities and 
sightseeing operators as defined by Sec. 135.1(c). The proposed 
change would allow a single registration requirement for both the 
antidrug and alcohol misuse prevention programs. Likewise, the FAA 
proposes requiring new and existing non-certificated contractors 
that elect to have an antidrug and alcohol misuse prevention program 
to register with the FAA.
    The proposed registration would require essentially the same 
information that appendix J now requires. It has always been the 
FAA's policy to allow this certification statement to be submitted 
along with the antidrug plan. This proposed registration would allow 
companies to meet their registration requirements for both the 
antidrug program and the alcohol misuse prevention program in a 
single document.
    This action also proposes eliminating the 180 days allowed for 
new employers to ensure that their contractors are subject to an 
antidrug and alcohol misuse prevention program. Contractor programs 
must be implemented by the time a contractor performs safety-
sensitive functions for an employer. Because of the safety 
implications, and since the regulations have been in effect since 
1994, the FAA believes that it is no longer appropriate to grant 
employers extra time to ensure that their contractors are subject to 
an antidrug and alcohol misuse prevention program.

Paperwork Reduction Act

    This proposal contains the following new information collection 
requirements. As required by the Paperwork Reduction Act of 1995 (44 
U.S.C. Sec. 3507(d)), the Department of Transportation has submitted 
the information requirements associated with this proposal to the 
Office of Management and Budget for its review.
    Title: Antidrug and Alcohol Misuse Prevention Programs for 
Personnel Engaged in Specified Aviation Activities.
    Summary: After a number of years of experience inspecting the 
aviation industry's Antidrug and Alcohol Misuse Prevention Programs, 
the FAA is proposing to clarify regulatory language, increase 
consistency between the antidrug and alcohol misuse prevention program 
regulations where possible, and revise regulatory provisions as 
appropriate. Specifically, the FAA proposes to change the antidrug plan 
and alcohol misuse prevention certification statement submission 
requirements for employers and contractors. The FAA proposes to revise 
the timing of pre-employment testing. The FAA also proposes to modify 
the reasonable cause and reasonable suspicion testing requirements. The 
FAA believes that changing the regulations would improve safety and 
lessen a burden on the regulated public.
    Use of: Title 49 U.S.C., Section 44701 empowers and requires the 
Administrator of the Federal Aviation Administration (FAA) to prescribe 
standards applicable to the accomplishment of the mission of the FAA. 
The information collected will be used to ensure compliance with the 
drug and alcohol programs.
    This project is in direct support of the Department of 
Transportation's Strategic Plan `` Strategic Goal `` SAFETY; i.e., to 
promote the public health and safety by working toward the elimination 
of transportation-related deaths and injuries.
    Respondents (including number of): The likely respondents to this 
proposed information requirement are employers

[[Page 9374]]

holding FAA certificates issued under parts 121, 135, and 145. These 
respondents will complete an Operations Specification (OpSpec). At this 
time, the likely number of respondents is 6,887 for the first year, and 
490 in subsequent years.
    Frequency: The FAA estimates the 6,887 respondents would have a 
one-time submission in the first year. Subsequently, only new 
respondents, which we estimate to be approximately 490 per year, would 
need to respond.
    Annual Burden Estimate: This proposal would result in an annual 
recordkeeping and reporting burden of 2,066 hours for the industry at a 
cost of $41,322.00 in the first year. In subsequent years, the proposal 
would result in an annual recordkeeping and reporting burden of 292 
hours for the industry at a cost of $5,844.00.
    The agency is soliciting comments to--
    (1) Evaluate whether the proposed information requirement is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology.
    Individuals and organizations may submit comments on the 
information collection requirement by April 29, 2002, and should direct 
them to the address listed in the ADDRESSES section of this document.
    According to the regulations implementing the Paperwork Reduction 
Act of 1995, (5 CFR 1320.8(b)(2)(vi)), an agency may not conduct or 
sponsor, a person is not required to respond to a collection of 
information unless it displays a currently valid OMB control number. 
The OMB control number for this information collection will be 
published in the Federal Register, after the Office of Management and 
Budget approves it.

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 has 
reviewed the corresponding ICAO Standards and Recommended Practices and 
has identified no differences with these proposed regulations.

Executive Order 12866 and DOT Regulatory Policies and Procedures

    Proposed changes to Federal regulations must undergo several 
economic analyses. First, Executive Order 12866 directs that each 
Federal agency shall propose or adopt a regulation only upon a reasoned 
determination that the benefits of the intended regulation justify its 
costs. Second, the Regulatory Flexibility Act of 1980 requires agencies 
to analyze the economic impact of regulatory changes on small entities. 
Third, the Trade Agreements Act (19 U.S.C. section 2531-2533) prohibits 
agencies from setting standards that create unnecessary obstacles to 
the foreign commerce of the United States. In developing U.S. 
standards, this Trade Act requires agencies to consider international 
standards and, where appropriate, that they be the basis of U.S. 
standards. And fourth, the Unfunded Mandates Reform Act of 1995 
requires agencies to prepare a written assessment of the costs, 
benefits and other effects of proposed or final rules that include a 
Federal mandate likely to result in the expenditure by State, local or 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more, in any one year (adjusted for inflation.)
    In conducting these analyses, the FAA has determined this rule: (1) 
Has benefits which do justify its costs, is not a ``significant 
regulatory action'' as defined in the Executive Order and is not 
``significant'' as defined in DOT's Regulatory Policies and Procedures; 
(2) would not have a significant impact on a substantial number of 
small entities; (3) reduces barriers to international trade; and (4) 
does not impose an unfunded mandate on state, local, or tribal 
governments, or on the private sector. These analyses, available in the 
docket, are summarized below.

Cost of Compliance

    The FAA has performed an analysis of the expected costs and 
benefits of this regulation. In this analysis, the FAA estimated future 
costs for a 10-year period, from 2001 through 2010. As required by the 
Office of Management and Budget, the present value of this stream of 
costs was calculated using a discount factor of 7 percent. All costs in 
this analysis are in 1999 dollars.
    These changes would affect all companies with either antidrug or 
alcohol misuse prevention plans. There are currently 6,887 companies. 
In addition, it would affect employees in 11 separate occupational 
categories.
    The FAA proposes to amend 8 sections of Appendix I and 5 sections 
of Appendix J of part 121; not all of these proposed changes would have 
cost implications. Some of the proposed changes to Appendix I parallel 
proposed changes to Appendix J; the analysis will combine the proposed 
sectional changes where appropriate. Only those proposed changes with 
cost implications will be discussed below.
    (1) Under Appendix I, under section II, the FAA is proposing to 
require employers to test all employees, including contractor 
employees, who perform safety sensitive duties, unless the employees 
are in a testing program for a contractor to the employer; this 
proposed change would impose costs. The current provision, which has 
allowed ``moonlighting,'' is confusing to the industry and is a 
potential loophole in employee coverage. In most circumstances, the 
second employer does not and cannot know the employee's status with the 
first employer.
    Compliance inspections and investigations also show that employers 
confuse the regulatory provisions between the drug and alcohol rules. 
The current drug rule allows ``moonlighting,'' while the alcohol rule 
does not permit it. Moonlighting occurs mostly among small employers, 
who often do not know the other employers that the moonlighting 
employee is working for. Consequently, these employees can potentially 
escape testing.
    Only certain types of employees tend to moonlight; these include 
part 121/135 pilots, mechanics, screeners, sightseers, and part 135 on-
demand pilots, primarily single owner pilots. The FAA does not know 
exactly how many of these employees moonlight, but is confident that 
the number is small. Accordingly, the FAA will base costs on an 
additional 1 percent of these employees having additional drug tests. 
The FAA calls for comments on whether this is a correct approximation 
of the number of employees who currently moonlight and requests that 
all comments be accompanied by clear documentation.
    The FAA projects over 10 years, the total number of tests, due to 
the requirement that moonlighting employees be tested, would sum to 
13,000, costing $169,200. Costs for employee time for this testing 
would sum to $52,600 over 10 years. Total 10-year costs of testing 
these employees would sum to $221,500 (present value, $160,000).

[[Page 9375]]

    (2) The FAA is proposing to eliminate section V.B. of Appendix I, 
periodic testing. The current regulation requires that a new employer 
must periodically drug test part 67 medical certificate holders during 
the first calendar year of implementation of its program. Periodic 
testing was important at the beginning of the program when many people 
were grandfathered into newly approved antidrug programs without pre-
employment testing. Since all flightcrew members are currently subject 
to pre-employment testing and annual random testing, the FAA believes 
that the elimination of periodic drug testing would not compromise 
safety and would be a cost savings. Cost savings over ten years sums to 
$57,700 (present value, $40,500).
    (3) The FAA proposes several changes to section IX of Appendix I 
and section VII of Appendix J; two of these changes would have cost 
implications. Provisions that affect part 121, 135, and 145 certificate 
holders will be covered in section (3a) and parts 135.1(c), contract 
ATC's, and other contractors in section (3b).
    (3a) The FAA proposes that part 121, 135, and 145 certificate 
holders would no longer have to submit antidrug and alcohol misuse 
prevention programs to the FAA for approval. The FAA instead would 
track these certificate holders using the Operations Specifications 
Sub-System (OPSS). Using this system would allow the FAA to quickly 
make a change to a specific type of certificate holders' operations 
specifications.
    Companies with antidrug and alcohol misuse prevention programs 
would incur additional costs from these proposals. In the first year of 
this rule, these companies would have to file new information. New 
companies would have to do the same in their first year. When the 
number of employees at a company changes to greater than or equal to 50 
to below 50, or vice versa, they would have to send employment change 
reports.
    The 6,887 existing plan holders currently submit 490 amendments 
each year. The FAA anticipates that 33 companies would send employment 
change reports each year after their initial year. In addition, 968 
companies submit new plans each year. The FAA believes that the number 
of companies submitting new plans under these proposals would decrease 
by 50%. Many of the new plans submitted each year come from companies 
that switch consortia; since this plan would eliminate the need for 
approved consortia, there would be no need for a company to inform the 
FAA when it changes service providers.
    Each of the existing plan holders would have to spend time to 
produce the required information, file and store it, and submit it to 
the FAA. Total first year costs would be $37,500. Subsequent year 
costs, which would encompass processing new plans, employment change 
reports, and amendments sum to $5,300. Ten year costs, at the company 
level, equal $85,400 (present value, $67,400). At the FAA, the 
information being submitted to OPSS would have to be processed. First 
year costs would be $18, 600, while each subsequent year cost would be 
about $2,600; costs over ten years sum to $42,400 (present value, 
$33,500).
    All companies would also incur cost savings, for they would no 
longer have to file a combined drug plan and an alcohol certification 
statement to the FAA. Thus, each of the existing companies would no 
longer have to spend time to produce these plans and certification 
statements. Total first year cost savings would be $225,200. In 
subsequent years, new companies would have had to handle plans, while 
existing companies would have had to process amendments; total annual 
costs savings sum to $34,400. Ten year cost savings, at the company 
level, equal $535,000 (present value, $420,100).
    Ten year net cost savings sum to $407,300 (present value, 
$319,200).
    (3b) These proposals also would eliminate the antidrug program plan 
and alcohol misuse prevention program certification statement 
requirements for new and existing non-Federal air traffic control 
facilities and operators as defined by Sec. 135.1(c). Instead, as with 
the certificate holders, a single registration statement requirement 
would suffice for both programs. In addition, the FAA proposes 
requiring new and existing non-certificated contractors that elect to 
have an antidrug and alcohol misuse prevention program to register with 
the FAA.
    The FAA has identified 253 part 135.1(c) operators and 1,004 
contractors that would be affected by these proposals; the contractors 
include 19 Air Traffic Control (ATC) contractors, providing services 
for 192 ATC contract towers, and 985 other contractors. The FAA does 
not expect any employment change reports from any of these companies.
    Each of the existing plan holders would have to spend time to 
produce the required information, file and store it, and submit it to 
the FAA. Total first year costs would be $8,400, while total annual 
costs for existing company amendments and new company plans sum to 
$1,200. Ten year costs equal $19,000 (present value, 15,000).
    At the FAA, first year costs would be $4,200, while each subsequent 
year cost would be about $600. Costs over ten years sum to $9,400 
(present value, $7,500).
    These companies would no longer have to file an alcohol 
certification statement and a drug plan, resulting in cost savings. 
Total first year cost savings would be $50,300, while total annual 
costs for the existing company amendments and new company plans sum to 
$7,600. Ten year cost savings equal $118,300 (present value, $93,000).
    Ten year net cost savings sum to $89,900 (present value, $70,600).
    Total cost savings for these proposals sum to $333,400 (net present 
cost, $270,200). Total cost savings to the industry total $281,600 
(present value, $229,300) and to the FAA total $51,800 (present value, 
$40,900).

Analysis of Benefits

    The FAA believes that these proposals could result in enhanced 
safety and concludes that several specific benefits would accrue from 
these proposals.
    The specific proposed changes to pre-employment testing would 
result in a number of benefits. The FAA believes that certain employers 
had misunderstood the current requirements and that the proposed 
requirements would be better understood. This would reduce the number 
of pre-employment enforcement cases. From August 1994 through June 
2000, the FAA initiated 450 legal enforcement cases dealing with pre-
employment violations, or an average of 76 cases per year. The FAA 
believes that these proposals could reduce the number of legal 
enforcement cases, saving both the FAA and the industry time and 
resources.
    Pre-employment testing acts as the ``gatekeeper.'' Since this type 
of testing has the largest number of positives, it is the tool that 
would keep drug users from getting into the aviation industry in the 
first place. Most of the other drug and alcohol tests are largely 
deterrence based. Clarifying pre-employment requirements is important, 
as the process would reduce the number of mistakes by employers that 
could lead to employees escaping the pre-employment test, the 
consequences including both potential safety impacts and enforcement 
actions for non-compliance.
    Companies no longer having to file antidrug or alcohol misuse 
prevention plans would bring about benefits. In addition to the costs 
savings discussed above, each company would benefit from a reduction in 
the paperwork burden; the FAA would also realize these same benefits. 
Industry has

[[Page 9376]]

misunderstood the purpose and intent of these antidrug and alcohol 
misuse prevention plans, as there is confusion as to what is required 
by the regulations as opposed to what each company's plan requires them 
to do. Since the programs and obligations in each plan sometimes 
differ, eliminating the plans can lead to better compliance with the 
regulations.
    These proposals would increase consistency between Appendices I and 
J, where possible. Elimination of unnecessary differences would reduce 
industry inquiries into the current conflicts between the two, saving 
both individual companies and the FAA time and resources, as well as 
better compliance with of the regulations.
    The proposed changes to reasonable cause testing, which would allow 
an employer to have its supervisors make reasonable cause 
determinations and refer the contract employee to the contractor for 
testing under the contractor's antidrug program, would also have 
benefits. The amount of time needed for the contractor to send a 
supervisor to make a determination could mean the difference between 
the employee testing positive or testing negative, particularly for 
alcohol testing. This would allow more people to detect and, hence, 
request a test which is likely to increase safety.

Comparison of Costs and Benefits

    This action would make a number of changes in order to make the 
antidrug and alcohol misuse prevention programs more efficient. The 
modifications to testing requirements, the changes to program 
submission requirements, and the elimination of the certification 
statements should make these programs more effective.
    These proposals would result in a net cost savings of $333,400 (net 
present value, $270,200). In addition, the public could see reduced 
paperwork and enhanced program management due to the elimination of 
unnecessary differences between Appendices I and J. The FAA has 
determined that these proposals would not compromise safety and would 
lessen the burden on the regulated public. Accordingly, the FAA finds 
these proposals to be cost-beneficial.

Initial 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 
business, 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.
    For this rule, the small entity group is considered to be part 121 
and 135 air carriers (Standard Industrial Classification Code [SIC] 
4512) and part 145 repair stations (SIC Code 4581, 7622, 7629, and 
7699). The FAA has identified a total of 98 of a total of 144 part 121 
air carriers and 2,118 of a total of 3,074 part 135 air carriers that 
are small entities. However, the FAA is unable to determine how many of 
the 2,412 part 145 repair stations are considered small entities, and 
so calls for comments and requests that all comments be accompanied by 
clear documentation.
    The annualized cost savings of these proposals to the industry are 
$32,600. The FAA is unable to isolate the cost savings to each industry 
group because some of the proposals apply to individual companies while 
others apply to the employees. So, the FAA looked at the average cost 
impact on each of the small entities and also on all of the small 
entity industry groups. If all the cost savings were recognized by only 
small part 121 air carriers, small part 125 and part 135 air carriers, 
or all repair stations, the average cost savings per certificate holder 
would be $333, $15, or $14, respectively. If the cost savings were 
divided among all of these business entities, the average cost savings 
per entity would be $7 per entity. Therefore, we certify that this 
action would not have a significant economic impact on a substantial 
number of small entities.

International Trade Impact Statement

    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.
    The FAA has assessed the potential effect of this rulemaking and 
has determined that it will have only a domestic impact and therefore 
no effect on any trade-sensitive activity.

Unfunded Mandates Determination

    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 
sector; 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. The FAA has 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, the FAA has 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 impact statement. In accordance with FAA Order 1050.1D, 
appendix 4, paragraph 4(j), this proposed rulemaking action qualifies 
for a categorical exclusion.

[[Page 9377]]

Energy Impact

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

List of Subjects in 14 CFR Part 121

    Air carriers, Aircraft, Airmen, Alcohol abuse, Alcoholism, 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, 44101, 44701-4402, 
44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-44904, 
44912, 46105, 46301.

    2. Amend appendix I to part 121 as follows:
    A. In section I, add paragraphs D and E;
    B. In section II, remove the definition of Contractor company; add 
a new definition of Contractor in alphabetic order; and revise the 
definitions of Employee and Employer;
    C. Revise section III;
    D. In section V, revise paragraph A.1, redesignate paragraphs A.2 
and A.4 as paragraphs A.4 and A.5, respectively, add new paragraph A.2, 
and revise paragraphs A.3 and A.5; remove paragraph B.; redesignate 
paragraph C. as paragraph B. ; redesignate paragraphs B. 8., B. 9., and 
B. 10. as paragraphs B. 9., B. 10., and B. 11., respectively; add a new 
paragraph B.8; redesignate paragraph D. as paragraph C.; redesignate 
paragraph E. as paragraph D. and revise it; redesignate paragraph F. as 
paragraph E.; and redesignate paragraph G. as paragraph F.; and
    E. Revise section IX.
    The additions and revisions read as follows:

Appendix I to Part 121--Drug Testing Program

* * * * *
    I. General
* * * * *
    D. Applicable Federal Regulations. The following applicable 
regulations appear in 49 CFR or 14 CFR:

1. 49 CFR

Part 40--Procedures for Transportation Workplace Drug Testing 
Programs

2. 14 CFR

61.14--Refusal to submit to a drug or alcohol test.
63.12b--Refusalto submit to a drug or alcohol test.
65.23--Refusal to submit to a drug or alcohol test.
65.46--Use of prohibited drugs.
67.107--First-Class Airman Medical Certificate, Mental.
67.207--Second-Class Airman Medical Certificate, Mental.
67.307--Third-Class Airman Medical Certificate, Mental.
121.429--Prohibited drugs.
121.455--Use of prohibited drugs.
121.457--Testing for prohibited drugs.
135.1--Applicability
135.249--Use of prohibited drugs.
135.251--Testing for prohibited drugs.
135.353--Prohibited drugs.
    E. Falsification. No person may make, or cause to be made, any 
of the following:
    1. Any fraudulent or intentionally false statement in any 
application of an antidrug program.
    2. Any fraudulent or intentionally false entry in any record or 
report that is made, kept, or used to show compliance with this 
appendix.
    3. Any reproduction or alteration, for fraudulent purposes, of 
any report or record required to be kept by this appendix.
    II. Definitions. * * *
* * * * *
    Contractor is an individual or company that performs a safety-
sensitive function by contract for an employer or another 
contractor.
* * * * *
    Employee is a person who is hired, either directly or by 
contract, to perform a safety-sensitive function for an employer, as 
defined below. An employee is also a person who transfers into 
position to perform a safety-sensitive function for an employer.
    Employer is a part 121 certificate holder, a part 135 
certificate holder, an operator as defined in Sec. 135.1(c) of this 
chapter, or an air traffic control facility not operated by the FAA 
or by or under contract to the U. S. military. An employer may use a 
contract employee who is not included under that employer's FAA-
mandated antidrug program to perform a safety-sensitive function 
only if that contract employee is subject to the requirements of the 
contractor's FAA-mandated antidrug program and is performing work 
within the scope of employment with the contractor.
* * * * *
    III. Employees Who Must be Tested. Each employee who performs a 
function listed in this section directly or by contract (including 
by subcontract at any tier) for an employer as defined in this 
appendix must be subject to drug testing under an antidrug program 
implemented in accordance with this appendix. This not only includes 
full-time and part-time employees, but temporary and intermittent 
employees regardless of the degree of supervision. Also, employees 
in a training status and performing safety-sensitive functions must 
be subject to drug testing in accordance with this appendix. The 
covered safety-sensitive functions are:
    a. Flight crewmember duties.
    b. Flight attendant duties.
    c. Flight instruction.
    d. Aircraft dispatcher duties.
    e. Aircraft maintenance and preventive maintenance duties.
    f. Ground security coordinator duties.
    g. Aviation screening duties.
    h. Air traffic control duties.
* * * * *
    V. Types of Drug Testing Required. * * *
    A. Pre-Employment Testing.
    1. No employer may hire any individual to perform a function 
listed in section III of this appendix unless the employer first 
receives a verified negative drug test result for that applicant.
    2. No employer shall allow an individual to transfer from a 
nonsafety-sensitive to a safety-sensitive job unless the employer 
first receives a verified negative drug test result for the 
individual.
    3. Employers must conduct another pre-employment test and 
receive a verified negative drug test result before hiring an 
applicant or transferring an employee into a safety-sensitive 
position if more than 60 days elapse between conducting the pre-
employment test and hiring or transferring the person into a safety-
sensitive function, resulting in that person being brought under an 
FAA drug-testing program.
* * * * *
    5. The employer shall advise each individual applying to perform 
a safety-sensitive function at the time of application that the 
individual will be required to undergo pre-employment testing in 
accordance with this appendix, to determine the presence of 
marijuana, cocaine, opiates, phencyclidine (PCP), and amphetamines, 
or a metabolite of those drugs in the individual's system. The 
employer shall provide this same notification to each individual 
required by the employer to undergo pre-employment testing under 
section V.A.1. or A.2 of this appendix.
    B. Random Testing. * * *
    8. Each employer shall require that each safety-sensitive 
employee who is notified of selection for random drug testing 
proceeds to the testing site immediately; provided, however, that if 
the employee is performing a safety-sensitive function at the time 
of the notification, the employer shall instead ensure that the 
employee ceases to perform the safety-sensitive function and 
proceeds to the testing site as soon as possible.
* * * * *
    D. Testing Based on Reasonable Cause. 1. Each employer shall 
test each employee who performs a safety-sensitive function and who 
is reasonably suspected of having used a prohibited drug. The 
decision to test must be based on a reasonable and articulable 
belief that the employee is using a prohibited drug on the basis of 
specific contemporaneous

[[Page 9378]]

physical, behavioral, or performance indicators of probable drug 
use. At least two of the employee's supervisors, one of whom is 
trained in detection of the symptoms of possible drug use, shall 
substantiate and concur in the decision to test an employee who is 
reasonably suspected of drug use; provided, however, that in the 
case of an employer other than a part 121 certificate holder who 
employs 50 or fewer employees who perform safety-sensitive 
functions, one supervisor who is trained in detection of symptoms of 
possible drug use shall substantiate the decision to test an 
employee who is reasonably suspected of drug use.
    2. An employer may make a reasonable cause determination 
regarding any contract employee who performs a safety-sensitive 
function on the employer's premises and under the supervision of the 
employer, but not in the employer's program, and may refer the 
contract employee for a reasonable cause test under the contractor's 
drug testing program.
* * * * *

OPTION 1 FOR SECTION IX:

    IX. Implementing an Antidrug Program.
    A. Use the following chart to determine whether your existing 
company must obtain an Antidrug and Alcohol Misuse Prevention 
Program Operations Specification or whether you must register with 
the FAA:

----------------------------------------------------------------------------------------------------------------
                         If you are existing . . .                                      You must . . .
----------------------------------------------------------------------------------------------------------------
 1. Part 121 or 135 certificate holder.....................................  Obtain an Antidrug and Alcohol
                                                                              Misuse Prevention Program
                                                                              Operations Specification by
                                                                              contacting your principal
                                                                              certificate operations inspector.
----------------------------------------------------------------------------------------------------------------
 2. Sightseeing operation as defined in Sec.  135.1(c) of this chapter.....  Register with the FAA, Office of
                                                                              Aerospace Medicine, Drug Abatement
                                                                              Division (AAM-800), 800
                                                                              Independence Ave., SW, as
                                                                              Washington, DC 20591 by [60 days
                                                                              from the date the final rule is
                                                                              published].
----------------------------------------------------------------------------------------------------------------
 3. Air traffic control operation not operated by the FAA or by or under     Register with the FAA, Office of
 contract to the U.S. Military.                                               Aerospace Medicine, Drug Abatement
                                                                              Division (AAM-800), 800
                                                                              Independence Ave., SW, Washington,
                                                                              DC 20591 by [60 days from the date
                                                                              the final rule is published].
----------------------------------------------------------------------------------------------------------------
 4. Part 145 certificate holder who has your own antidrug program..........  Obtain an Antidrug and Alcohol
                                                                              Misuse Prevention Program
                                                                              Operations Specification by
                                                                              contacting your principal
                                                                              maintenance inspector.
----------------------------------------------------------------------------------------------------------------
 5. Contractor who has your own antidrug program...........................  Register with the FAA, Office of
                                                                              Aerospace Medicine, Drug Abatement
                                                                              Division (AAM-800), 800
                                                                              Independence Ave., SW, Washington,
                                                                              DC 20591 by [60 days from the date
                                                                              the final rule is published].
----------------------------------------------------------------------------------------------------------------

    B. Use the following schedule for implementing an antidrug 
program for new certificate holders and contractors. Use it to 
determine whether you need to have an antidrug and alcohol misuse 
prevention program operations specification, or whether you need to 
register with the FAA. Your employees who perform safety-sensitive 
duties must be tested in accordance with this appendix. The schedule 
follows:

----------------------------------------------------------------------------------------------------------------
                                If you . . .                                            You must . . .
----------------------------------------------------------------------------------------------------------------
 1. Apply for a part 121 certificate or apply for a part 135 certificate...  a. Have an Antidrug and Alcohol
                                                                              Misuse Prevention Program
                                                                              Operations Specification,
                                                                             b. Implement an FAA antidrug
                                                                              program no later than the date you
                                                                              start operations, and
                                                                             c. Use only contract employees to
                                                                              perform safety-sensitive functions
                                                                              who are covered by an FAA antidrug
                                                                              program for the entire period they
                                                                              perform safety-sensitive work.
----------------------------------------------------------------------------------------------------------------
 2. Intend to begin sightseeing operations as defined in Sec.  135.1(c) of   a. Register with the FAA, Office of
 this chapter.                                                                Aerospace Medicine, Drug Abatement
                                                                              Division, 800 Independence Ave.,
                                                                              SW, Washington, DC 20591 prior to
                                                                              starting operations,
                                                                             b. Implement an FAA antidrug
                                                                              program no later than the date you
                                                                              start operations, and
                                                                             c. Use only contract employees to
                                                                              perform safety-sensitive functions
                                                                              who are covered by an FAA antidrug
                                                                              program for the entire period they
                                                                              perform safety-sensitive work.
----------------------------------------------------------------------------------------------------------------
 3. Intend to begin air traffic control operations as an employer defined    a. Register with the FAA, Office of
 in Sec.  65.46 of this chapter (that is, air traffic control facilities      Aerospace Medicine, Drug Abatement
 not operated by the FAA or by or under contract to the U.S. military).       Division, 800 Independence Ave.,
                                                                              SW, Washington, DC 20591,
                                                                             b. Implement an FAA antidrug
                                                                              program no later than the date you
                                                                              start operations, and
                                                                             c. Use only contract air traffic
                                                                              controllers to perform safety-
                                                                              sensitive functions who are
                                                                              covered by an FAA antidrug program
                                                                              for the entire period they perform
                                                                              safety-sensitive work.
----------------------------------------------------------------------------------------------------------------

    C. 1. If you are an individual or company that will provide 
safety-sensitive services by contract to a part 121 or 135 
certificate holder or a sightseeing operation as defined in 
Sec. 135.1(c) of this chapter, use the chart in paragraph C.2 of 
this section to determine what you must do if you opt to have your 
own antidrug program.
    2. Employees who perform safety-sensitive functions for a part 
121 or 135 certificate holder or a sightseeing operation as defined 
in Sec. 135.1(c) of this chapter must be tested in accordance with 
this appendix. The following chart explains what you must do if you 
opt to have your own antidrug program:

----------------------------------------------------------------------------------------------------------------
                                If you . . .                                            You must . . .
----------------------------------------------------------------------------------------------------------------
a. Are a part 145 certificate holder.......................................  i. Have an Antidrug and Alcohol
                                                                              Misuse Prevention Program
                                                                              Operations Specification,
                                                                             ii. Implement an FAA Antidrug
                                                                              Program no later than the date you
                                                                              start performing safety-sensitive
                                                                              functions for a part 121 or 135
                                                                              certificate holder or sightseeing
                                                                              operation as defined in Sec.
                                                                              135.1(c) of this chapter, and
                                                                             iii. Meet the same requirements as
                                                                              an employer under this appendix.
----------------------------------------------------------------------------------------------------------------

[[Page 9379]]

 
b. Are a contractor (for example: a security company, a non-certificated     i. Register with the FAA, Office of
 repair station, a temporary employment service company or any other          Aerospace Medicine, Drug Abatement
 individual or company that provides safety-sensitive services).              Division, 800 Independence Ave.,
                                                                              SW., Washington, DC 20591,
                                                                             ii. Implement an FAA Antidrug
                                                                              Program no later than the date you
                                                                              start performing safety-sensitive
                                                                              functions for a part 121 or 135
                                                                              certificate holder or sightseeing
                                                                              operation as defined in Sec.
                                                                              135.1(c) of this chapter, and
                                                                             iii. Meet the same requirements as
                                                                              an employer under other individual
                                                                              or this appendix.
----------------------------------------------------------------------------------------------------------------

    D. 1. To obtain an Antidrug and Alcohol Misuse Prevention 
Program Operations Specification, you must contact your Aviation 
Flight Standards principal operations inspector or principal 
maintenance inspector. Provide him/her with the following 
information:
    a. Company name.
    b. Certificate number.
    c. Telephone number.
    d. Address where your Antidrug and Alcohol Misuse Prevention 
Program records are kept.
    e. Whether you have 50 or more covered employees, or 49 or fewer 
covered employees. (Part 121 certificate holders are not required to 
provide this information.)
    2. You must certify on your Antidrug and Alcohol Misuse 
Prevention Program Operations Specification issued by your principal 
operations inspector or principal maintenance inspector that you 
will comply with this appendix, appendix J of this part, and 49 CFR 
part 40.
    3. You are required to obtain only one Antidrug and Alcohol 
Misuse Prevention Program Operations Specification to satisfy this 
requirement under this appendix and appendix J of this part.
    E. 1. To register with the FAA, submit the following 
information:
    a. Company name.
    b. Telephone number.
    c. Address where your Antidrug and Alcohol Misuse Prevention 
Program records are kept.
    d. Name of the type of safety-sensitive functions you perform 
for an employer (such as flight instruction duties, aircraft 
dispatcher duties, maintenance or preventive maintenance duties, 
ground security coordinator duties, aviation screening duties, air 
traffic control duties).
    e. Indicate whether you have 50 or more covered employees, or 49 
or fewer covered employees.
    f. A signed statement indicating that your company performs 
safety-sensitive functions for a part 121 or a 135 certificate 
holder or sightseeing operation as defined by Sec. 135.1(c) of this 
chapter and that your company will comply with this appendix, 
appendix J of this part, and 49 CFR part 40.
    2. Send this information in duplicate to: The Federal Aviation 
Administration, Office of Aerospace Medicine, Drug Abatement 
Division (AAM-800), 800 Independence Ave. SW., Washington, DC 20591.
    3. Update the registration information as changes occur. Send 
the updates in duplicate to the Drug Abatement Division.
    4. This registration will satisfy the registration requirements 
for both your Antidrug Program under this appendix and the Alcohol 
Misuse Prevention Program under appendix J of this part.

OPTION 2 FOR SECTION IX:

    IX. Implementing an Antidrug Program.
    A. Antidrug and Alcohol Misuse Prevention Program Operations 
Specifications and registration with the FAA. Each certificate 
holder required to have an antidrug program by this appendix shall 
submit an Antidrug and Alcohol Misuse Prevention Program Operations 
Specification to its Principal Operations Inspector. All other 
operators required or electing to have an antidrug program will 
register with the Federal Aviation Administration, Office of 
Aerospace Medicine, Drug Abatement Division (AAM-800), 800 
Independence Avenue, SW., Washington, DC 20591 by [60 days from the 
date the final rule is published].
    1. Any person who applies for a certificate under the provisions 
of part 121 or part 135 of this chapter shall obtain an Antidrug and 
Alcohol Misuse Prevention Program Operations Specification prior to 
beginning operations under the certificate. The program shall be 
implemented not later than the date of start of operations. 
Contractor employees to a new certificate holder must be subject to 
an antidrug program in accordance with this appendix.
    2. Any person who intends to begin sightseeing operations as an 
operator under 14 CFR 135.1(c) shall, not later than 60 days prior 
to the proposed initiation of such operations, register with the 
FAA. No operator may begin conducting sightseeing flights prior to 
registration. The program shall be implemented concurrently with the 
start of operations. Contractor employees to a new operator must be 
subject to an antidrug program in accordance with this appendix.
    3. Any person who intends to begin air traffic control 
operations as an employer as defined in 14 CFR 65.46(a)(2) (air 
traffic control facilities not operated by the FAA or by or under 
contract to the U.S. military) shall, not later than 60 days prior 
to the proposed initiation of such operations, register with the 
FAA. The antidrug program shall be implemented concurrently with the 
start of operations. Contractor employees to a new air traffic 
control facility must be subject to an antidrug program in 
accordance with this appendix.
    4. In accordance with this appendix, an entity or individual 
that holds a repair station certificate issued by the FAA pursuant 
to part 145 of this chapter and employs individuals who perform 
safety-sensitive functions pursuant to a contract with an employer 
or an operator may obtain an Antidrug and Alcohol Misuse Prevention 
Program Operations Specification from its Principal Maintenance 
Inspector. Each certificated repair station shall implement its 
antidrug program in accordance with this appendix.
    5. 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 registration in a manner prescribed by the Administrator. 
Each contractor shall implement its antidrug program in accordance 
with this appendix.
    6. Each air traffic control facility operating under contract to 
the FAA shall register with the FAA. Each facility shall implement 
its antidrug program in accordance with this appendix. Employees 
performing air traffic control duties by contract for the air 
traffic control facility (i.e., not directly employed by the 
facility) must be subject to an antidrug program in accordance with 
this appendix.
    7. Each employer or contractor company must use only contract 
employees who are covered by an FAA antidrug program for the entire 
period they perform safety-sensitive work.
    B.1. To obtain an Antidrug and Alcohol Misuse Prevention Program 
Operations Specification, you must contact your Aviation Flight 
Standards Principal Operations Inspector or Principal Maintenance 
Inspector. Provide him/her with the following information:
    a. Company name.
    b. Certificate number.
    c. Telephone number.
    d. Address where your Antidrug and Alcohol Misuse Prevention 
Program records are kept.
    e. Whether you have 50 or more covered employees, or 49 or fewer 
covered employees. (Part 121 certificate holders are not required to 
provide this information.)
    2. You must certify on your Antidrug and Alcohol Misuse 
Prevention Program Operations Specification issued by your principal 
operations inspector or principal maintenance inspector that you 
will comply with this appendix, appendix J of this part, and 49 CFR 
part 40.
    3. You are required to obtain only one Antidrug and Alcohol 
Misuse Prevention Program Operations Specification to satisfy this 
requirement under this appendix and appendix J of this part.
    C.1. To register with the FAA, submit the following information:
    a. Company name.
    a. Telephone number.
    c. Address where your Antidrug and Alcohol Misuse Prevention 
Program records are kept.
    d. Name of the type of safety-sensitive functions you perform 
for an employer (such as flight instruction duties, aircraft 
dispatcher duties, maintenance or preventive maintenance duties, 
ground security coordinator duties, aviation screening duties, air 
traffic control duties).

[[Page 9380]]

    e. Indicate whether you have 50 or more covered employees, or 49 
or fewer covered employees.
    f. A signed statement indicating that your company will comply 
with this appendix, appendix J of this part, and 49 CFR part 40.
    2. Send this information in duplicate to:The Federal Aviation 
Administration,Office of Aerospace Medicine,Drug Abatement Division 
(AAM-800),800 Independence Ave. SW.,Washington, DC 20591.
    3. Update the registration information as changes occur. Send 
the updates in duplicate to the Drug Abatement Division.
    4. This registration will satisfy the registration requirements 
for both your Antidrug Program under this appendix and the Alcohol 
Misuse Prevention Program under appendix J of this part.
* * * * *
    3. In appendix J to part 121:
    A. In section I., amend paragraph D. to remove the definitions for 
``Administrator'' and ``Contractor company''; add a definition for 
``Contractor'' in alphabetical order; and add paragraphs H. and I.;
    B. In section II., revise the introductory text;
    C. In section III., revise paragraph D.1.;
    D. In section IV.B., revise paragraph 4.;
    E. Revise section VII.
    The additions and revisions read as follows:

APPENDIX J TO PART 121--ALCOHOL MISUSE PREVENTION PROGRAM

* * * * *
    I. General.
* * * * *
    D. Definitions.
* * * * *
    Contractor means an individual or company that performs a 
safety-sensitive function by contract for an employer or another 
contractor.
* * * * *
    H. Applicable Regulations. The following applicable regulations 
appear in 49 CFR and 14 CFR:

1.49 CFR

Part 40--Procedures for Transportation Workplace Drug Testing 
Programs

2. 14 CFR

61.14--Refusal to submit to a drug or alcohol test.
63.12b--Refusal to submit to a drug or alcohol test.
65.23--Refusal to submit to a drug or alcohol test.
65.46a--Misuse of Alcohol.
65.46b--Testing for Alcohol.
67.107--First-Class Airman Medical Certificate, Mental.
67.207--Second-Class Airman Medical Certificate, Mental.
67.307--Third-Class Airman Medical Certificate, Mental.
121.458--Misuse of alcohol.
121.459--Testing for alcohol.
135.1--Applicability.
135.253--Misuse of alcohol.
135.255--Testing for alcohol.
    I. Falsification. No person may make, or cause to be made, any 
of the following:
    1. Any fraudulent or intentionally false statement in any 
application of an alcohol misuse prevention program.
    2. Any fraudulent or intentionally false entry in any record or 
report that is made, kept, or used to show compliance with this 
appendix.
    3. Any reproduction or alteration, for fraudulent purposes, of 
any report or record required to be kept by this appendix.
    II. Covered Employees.
    Each employee who performs a function listed in this section 
directly or by contract (including by subcontract at any tier) for 
an employer as defined in this appendix must be subject to alcohol 
testing under an alcohol misuse prevention program implemented in 
accordance with this appendix. This not only includes full-time and 
part-time employees, but temporary and intermittent employees 
regardless of the degree of supervision. Also, employees in a 
training status performing safety-sensitive functions must be 
subject to alcohol testing in accordance with this appendix. The 
covered safety-sensitive functions are:
* * * * *
    III. Tests Required.
* * * * *

D. Reasonable Suspicion Testing

    1. An employer shall require a covered employee to submit to an 
alcohol test when the employer has reasonable suspicion to believe 
that the employee has violated the alcohol misuse prohibitions in 
Sec. 65.46a, Sec. 121.458, or Sec. 135.253 of this chapter. For the 
purpose of reasonable suspicion testing, an employer may make a 
reasonable suspicion determination regarding any contract employee 
who performs a safety-sensitive function on the employer's premises 
and under the supervision of the employer, and may refer the 
contract employee for a reasonable suspicion test under the 
contractor's alcohol testing program.
* * * * *
    IV. Handling of Test Results, Record Retention, and 
Confidentiality.
* * * * *
    B. * * *
    4. Each report shall be submitted in the form and manner 
prescribed by the Administrator. No other form, including another 
DOT Operating Administration's form, is acceptable for submission to 
the FAA.
* * * * *

OPTION 1 FOR SECTION VII:

    VII. How to Implement an Alcohol Misuse Prevention Program.
    A. Use the following chart to determine whether your existing 
company must obtain an Antidrug and Alcohol Misuse Prevention 
Program Operations Specification or whether you must register with 
the FAA:

----------------------------------------------------------------------------------------------------------------
                        If you are an existing . . .                                    You must . . .
----------------------------------------------------------------------------------------------------------------
1. Part 121 or 135 certificate holder . . .                                  Obtain an Antidrug and Alcohol
                                                                              Misuse Prevention Program
                                                                              Operations Specification by
                                                                              contacting your principal
                                                                              operations inspector.
----------------------------------------------------------------------------------------------------------------
2. Sightseeing operation as defined in Sec.  135.1(c) . . .                  Register with the FAA, Office of
                                                                              Aerospace Medicine, Drug Abatement
                                                                              Division (AAM-800), 800
                                                                              Independence Ave., SW, Washington,
                                                                              DC 20591 by [60 days from the date
                                                                              the final rule is published].
----------------------------------------------------------------------------------------------------------------
3. Air traffic control operation not operated by the FAA or by or under      Register with the FAA, Office of
 contract to the U.S. Military . . .                                          Aerospace Medicine, Drug Abatement
                                                                              Division (AAM-800), 800
                                                                              Independence Ave., SW, Washington,
                                                                              DC 20591 by [60 days from the date
                                                                              the final rule is published].
----------------------------------------------------------------------------------------------------------------
4. Part 145 certificate holder who has your own alcohol misuse prevention    Obtain an Antidrug and Alcohol
 program . . .                                                                Misuse Prevention Program
                                                                              Operations Specification by
                                                                              contacting your principal
                                                                              maintenance inspector.
----------------------------------------------------------------------------------------------------------------
5. Contractor who has your own alcohol misuse prevention program . . .       Register with the FAA, Office of
                                                                              Aerospace Medicine, Drug Abatement
                                                                              Division (AAM-800), 800
                                                                              Independence Ave., SW, Washington,
                                                                              DC 20591 by [60 days from the date
                                                                              the final rule is published].
----------------------------------------------------------------------------------------------------------------

    B. Use the following schedule for implementing an Alcohol Misuse 
Prevention Program. Use it to determine whether you need to have an 
Antidrug and Alcohol Misuse Prevention Program operations 
specification, or whether you need to register

[[Page 9381]]

with the FAA. Your employees who perform safety-sensitive duties 
must be tested in accordance with this appendix. The schedule 
follows:

----------------------------------------------------------------------------------------------------------------
                                If you . . .                                            You must . . .
----------------------------------------------------------------------------------------------------------------
1. Apply for a part 121 certificate or apply for a part 135 certificate....  a. Have an Antidrug and Alcohol
                                                                              Misuse Prevention Program
                                                                              Operations Specification,
                                                                             b. Implement an FAA Alcohol Misuse
                                                                              Prevention Program no later than
                                                                              the date you start operations, and
                                                                             c. Use only contract employees to
                                                                              perform safety-sensitive functions
                                                                              who are covered by an FAA Alcohol
                                                                              Misuse Prevention Program for the
                                                                              entire period they perform safety-
                                                                              sensitive work.
----------------------------------------------------------------------------------------------------------------
2. Intend to begin sightseeing operations as defined in Sec.  135.1(c) of    a. Register with the FAA, Office of
 this chapter.                                                                Aerospace Medicine, Drug Abatement
                                                                              Division, 800 Independence Ave.,
                                                                              SW, Washington, DC 20591 prior to
                                                                              starting operations,
                                                                             b. Implement an FAA Alcohol Misuse
                                                                              Prevention Program no later than
                                                                              the date you start operations, and
                                                                             c. Use only contract employees to
                                                                              perform safety-sensitive functions
                                                                              who are covered by an FAA Alcohol
                                                                              Misuse Prevention Program for the
                                                                              entire period they perform safety-
                                                                              sensitive work.
----------------------------------------------------------------------------------------------------------------
3. Intend to begin air traffic control operations as an employer defined in  a. Register with the FAA, Office of
 Sec.  65.46 of this chapter (that is, air traffic control facilities not     Aerospace Medicine, Drug Abatement
 operated by the FAA or by or under contract to the U.S. military).           Division, 800 Independence Ave.,
                                                                              SW, Washington, DC 20591,
                                                                             b. Implement an FAA Alcohol Misuse
                                                                              Prevention Program no later than
                                                                              the date you start operations, and
                                                                             c. Use only contract air traffic
                                                                              controllers to perform safety-
                                                                              sensitive functions who are
                                                                              covered by an FAA Alcohol Misuse
                                                                              Prevention Program for the entire
                                                                              period they perform safety-
                                                                              sensitive work.
----------------------------------------------------------------------------------------------------------------

    C.1. If you are an individual or a company that will provide 
safety-sensitive services by contract to a part 121 or 135 
certificate holder or a sightseeing operation as defined in 
Sec. 135.1(c) of this chapter, use the chart in paragraph C.2. of 
this section to determine what you must do if you opt to have your 
own antidrug program.
    2. Employees who perform safety-sensitive functions for part 121 
or 135 certificate holders or sightseeing operations as defined in 
Sec. 135.1(c) of this chapter must be tested in accordance with this 
appendix. The following chart explains what you must do if you opt 
to have your own Alcohol Misuse Prevention Program:

----------------------------------------------------------------------------------------------------------------
                                If you . . .                                            You must . . .
----------------------------------------------------------------------------------------------------------------
a. Are a part 145 certificate holder.......................................  i. Have an Antidrug and Alcohol
                                                                              Misuse Prevention Program
                                                                              Operations Specification,
                                                                             ii. Implement an FAA Alcohol Misuse
                                                                              Prevention Program no later than
                                                                              the date you start performing
                                                                              safety-sensitive functions for a
                                                                              part 121 or 135 certificate holder
                                                                              or sightseeing operation as
                                                                              defined in Sec.  135.1(c) of this
                                                                              chapter, and
                                                                             iii. Meet the same requirements as
                                                                              an employer under this appendix.
----------------------------------------------------------------------------------------------------------------
b. Are a contractor (for example: a security company, a non-certificated     i. Register with the FAA, Office of
 repair station, a temporary employment service company or any other          Aerospace Medicine, Drug Abatement
 individual or company that provides safety-sensitive services).              Division, 800 Independence Ave.,
                                                                              SW, Washington, DC 20591,
                                                                             ii. Implement an FAA Alcohol Misuse
                                                                              Prevention Program no later than
                                                                              the date you start performing
                                                                              safety-sensitive functions for a
                                                                              part 121 or 135 certificate holder
                                                                              or sightseeing operation as
                                                                              defined in Sec.  135.1(c) of this
                                                                              chapter, and
                                                                             iii. Meet the same requirements of
                                                                              an employer under this appendix.
----------------------------------------------------------------------------------------------------------------

    D.1. To obtain an Antidrug and Alcohol Misuse Prevention Program 
Operations Specification, you must contact your Aviation Flight 
Standards Inspector. Provide him/her with the following information:
    a. Company name.
    b. Certificate number.
    c. Telephone number.
    d. Address where your Antidrug and Alcohol Misuse Prevention 
Program records are kept.
    e. Whether you have 50 or more covered employees, or 49 or fewer 
covered employees. (Part 121 certificate holders are not required to 
provide this information.)
    2. You must certify on your Antidrug and Alcohol Misuse 
Prevention Program Operations Specification, issued by your 
principal operations inspector or principal maintenance inspector, 
that you will comply with appendix I of this part, this appendix, 
and 49 CFR part 40.
    3. You are required to obtain only one Antidrug and Alcohol 
Misuse Prevention Program Operations Specification to satisfy this 
requirement under appendix I of this part and this appendix.
    E.1. To register with the FAA, submit the following information:
    a. Company name.
    b. Telephone number.
    c. Address where your Antidrug and Alcohol Misuse Prevention 
Program records are kept.
    d. Name the type of safety-sensitive functions you perform for 
an employer (such as flight instruction duties, aircraft dispatcher 
duties, maintenance or preventive maintenance duties, ground 
security coordinator duties, aviation screening duties, air traffic 
control duties).
    e. Whether you have 50 or more covered employees, or 49 or fewer 
covered employees.
    f. A signed statement indicating that your company performs 
safety-sensitive functions for a part 121 or a 135 certificate 
holder or sightseeing operation as defined by Sec. 135.1(c) of this 
chapter and that your company will comply with appendix I of this 
part, this appendix, and 49 CFR part 40.
    2. Send this information in duplicate to: The Federal Aviation 
Administration, Office of Aerospace Medicine, Drug Abatement 
Division (AAM-800), 800 Independence Ave. SW., Washington, DC 20591.
    3. Update the registration information as changes occur. Send 
the updates in duplicate to the Drug Abatement Division.
    4. This registration will satisfy the registration requirements 
for both your Antidrug Program under this appendix I of this part 
and the Alcohol Misuse Prevention Program under this appendix.

[[Page 9382]]

OPTION 2 FOR SECTION VII:

    VII. Implementing an Alcohol Misuse Prevention Program.
    A. Antidrug and Alcohol Misuse Prevention Program Operations 
Specifications and Registration with the FAA.
    1. Each certificate holder required to have an alcohol misuse 
prevention program (AMPP) by this appendix shall submit an Antidrug 
and Alcohol Misuse Prevention Program Operations Specification to 
its principal operations inspector or principal maintenance 
inspector. All other operators required or electing to have an AMPP 
will register with the Federal Aviation Administration, Office of 
Aerospace Medicine, Drug Abatement Division (AAM-800), 800 
Independence Avenue, SW., Washington, DC 20591.
    2.a. Any person who applies for a certificate under the 
provisions of part 121 or part 135 of this chapter shall obtain an 
Antidrug and Alcohol Misuse Prevention Program Operations 
Specification prior to beginning operations under the certificate. 
The program shall be implemented not later than the start of 
operations. Contractor employees to a new certificate holder must be 
subject to an AMPP in accordance with this appendix.
    b. Any person who intends to begin sightseeing operations as an 
operator under 14 CFR 135.1(c) shall, not later than 60 days prior 
to the proposed initiation of such operations, register with the 
FAA. No operator may begin conducting sightseeing flights prior to 
registration. The program shall be implemented concurrently with the 
start of operations. Contractor employees to a new operator must be 
subject to an AMPP in accordance with this appendix.
    c. Any person who intends to begin air traffic control 
operations as an employer as defined in 14 CFR 65.46(a)(2) (air 
traffic control facilities not operated by the FAA or by or under 
contract to the U.S. military) shall, not later than 60 days prior 
to the proposed initiation of such operations, register with the 
FAA. The AMPP shall be implemented concurrently with the start of 
operations. Contractor employees to a new air traffic control 
facility must be subject to an AMPP in accordance with this 
appendix.
    3. In accordance with this appendix, an entity or individual 
that holds a repair station certificate issued by the FAA pursuant 
to part 145 of this chapter and employs individuals who perform 
safety-sensitive functions pursuant to a contract with an employer 
or an operator may obtain an Antidrug and Alcohol Misuse Prevention 
Program Operations Specification from its principal maintenance 
inspector. Each certificated repair station shall implement its AMPP 
in accordance with this appendix.
    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 AMPP 
registration in a manner prescribed by the Administrator. Each 
contractor shall implement its AMPP in accordance with this 
appendix.
    5. Each air traffic control facility operating under contract to 
the FAA shall register with the FAA. Each facility shall implement 
its AMPP in accordance with this appendix. Employees performing air 
traffic control duties by contract for the air traffic control 
facility (i.e., not directly employed by the facility) must be 
subject to an AMPP in accordance with this appendix.
    6. Each employer or contractor company must use only contract 
employees who are covered by an FAA Alcohol Misuse Prevention 
Program for the entire period they perform safety-sensitive work.
    B. Obtaining an Antidrug and Alcohol Misuse Prevention Program 
Operations Specification.
    1. To obtain an Antidrug and Alcohol Misuse Prevention Program 
Operations Specification, you must contact your Aviation Flight 
Standards principal operations inspector or principal maintenance 
inspector. Provide him/her with the following information:
    a. Company name.
    b. Certificate number.
    c. Telephone number.
    d. Address where your Antidrug and Alcohol Misuse Prevention 
Program records are kept.
    e. Whether you have 50 or more covered employees, or 49 or fewer 
covered employees. (Part 121 certificate holders are not required to 
provide this information.)
    2. You must certify on your Antidrug and Alcohol Misuse 
Prevention Program Operations Specification issued by your principal 
operations inspector or principal maintenance inspector that you 
will comply with appendix I of this part, this appendix, and 49 CFR 
part 40.
    3. You are required to obtain only one Antidrug and Alcohol 
Misuse Prevention Program Operations Specification to satisfy this 
requirement under both appendix I of this part and this appendix.
    C. Registering Your Alcohol Misuse Prevention Program with the 
FAA.
    1. To register your AMPP with the FAA, submit the following 
information:
    a. Company name.
    b. Telephone number.
    c. Address where your Antidrug and Alcohol Misuse Prevention 
Program records are kept.
    d. Name the type of safety-sensitive functions you perform for 
an employer (such as flight instruction duties, aircraft dispatcher 
duties, maintenance or preventive maintenance duties, ground 
security coordinator duties, aviation screening duties, air traffic 
control duties).
    e. Indicate whether you have 50 or more covered employees, or 49 
or fewer covered employees.
    f. A signed statement indicating that your company will comply 
with appendix I of this part, this appendix, and 49 CFR part 40.
    2. Send this information in duplicate to: The Federal Aviation 
Administration, Office of Aerospace Medicine, Drug Abatement 
Division (AAM-800), 800 Independence Ave. SW., Washington, DC 20591.
    3. Update the registration information as changes occur. Send 
the updates in duplicate to the Drug Abatement Division.
    4. This registration will satisfy the registration requirements 
for both your Antidrug Program under appendix I of this part, and 
the Alcohol Misuse Prevention Program under this appendix.
* * * * *

    Issued in Washington, DC, on January 8, 2002.
Jon L. Jordan,
Federal Air Surgeon.

[FR Doc. 02-3847 Filed 2-27-02; 8:45 am]
BILLING CODE 4910-13-P