[Federal Register Volume 69, Number 7 (Monday, January 12, 2004)]
[Rules and Regulations]
[Pages 1840-1860]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-482]



[[Page 1839]]

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Part IV





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; Final Rule

  Federal Register / Vol. 69, No. 7 / Monday, January 12, 2004 / Rules 
and Regulations  

[[Page 1840]]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 121

[Docket No. FAA-2002-11301; Amendment No. 121-302]
RIN 2120-AH14


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

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: As a result of a number of years of experience inspecting the 
aviation industry's Antidrug and Alcohol Misuse Prevention Programs, 
the FAA is clarifying regulatory language, increasing consistency 
between the antidrug and alcohol misuse prevention program regulations 
where possible, and eliminating regulatory provisions that are no 
longer appropriate. The major changes the FAA is making include the 
requirements for submission of antidrug plans and alcohol misuse 
prevention certification statements by employers and contractors; and 
the timing of pre-employment testing. The effect of these changes is to 
improve safety and lessen administrative burdens on the regulated 
public.

DATES: These amendments become effective February 11, 2004.

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

SUPPLEMENTARY INFORMATION:

Availability of Rulemaking Documents

    You can get an electronic copy using the Internet by:
    (1) Searching the Department of Transportation's electronic Docket 
Management System (DMS) Web page (http://dms.dot.gov/search);
    (2) Visiting the Office of Rulemaking's Web page at http://www.faa.gov/avr/arm/index.cfm; or
    (3) Accessing the Government Printing Office's Web page at http://www.access.gpo.gov/su_docs/aces/aces140.html.
    You can also get a copy by submitting a request to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Make 
sure to identify the amendment number or docket number of this 
rulemaking.
    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit 
http://dms.dot.gov.

Small Business Regulatory Enforcement Fairness Act

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

General Information

    The General Information portion of the preamble is organized as 
follows:
    [sbull] Background information about the drug and alcohol rules (14 
CFR part 121, appendices I and J, respectively).
    [sbull] Two charts highlighting the principal changes in appendices 
I and J.
    [sbull] Two charts highlighting the clarifying changes in 
appendices I and J.
    [sbull] Discussion of comments received.

Background Information About the Drug and Alcohol Rules

    The Antidrug and Alcohol Misuse Prevention Program regulations are 
part of 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. Because of the broad use of drugs in American society, the 
FAA adopted rules in the 1980s to require testing of persons performing 
safety functions in the commercial aviation industry for certain 
illegal drugs. 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 (49 U.S.C. 45101, et seq.) (the Act), requiring 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 alcohol use in the transportation industries. On August 19, 
1994, the FAA published a final rule entitled, Antidrug Program for 
Personnel Engaged in Specified Aviation Activities (59 FR 42911), which 
made clarifying and substantive changes in the FAA's antidrug rule to 
comport with revised DOT drug testing procedures. On February 15, 1994, 
the FAA published a final rule entitled, 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 
detecting and deterring illegal drug use and alcohol misuse in the 
aviation industry. From 1990 through 2001, aviation employers required 
to report have told the FAA that approximately 19,400 positive pre-
employment test results have occurred. Hence, pre-employment testing 
has proven to be an effective detection tool for the aviation industry.
    In addition to these pre-employment test results, between 1990 and 
2001 there were approximately 11,100 positive drug test results 
reported to the FAA by employers. For alcohol tests conducted between 
1995 and 2001, employers have reported a total of approximately 900 
breath alcohol test results of 0.04 or greater. This is further 
evidence of the success of the FAA's drug and alcohol testing 
regulations.
    While the drug and alcohol testing regulations have proven 
successful, experience has led the FAA to identify some aspects of the 
regulations that need to be amended. These amendments change 
requirements regarding: reasonable cause drug 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 also clarifying regulatory language, 
increasing consistency between the antidrug and alcohol misuse 
prevention program regulations where possible, and eliminating 
regulatory provisions that are no longer appropriate.

[[Page 1841]]

    On February 28, 2002, the FAA published a Notice of Proposed 
Rulemaking (NPRM), Notice 02-04 (67 FR 9365). We proposed clarifying 
regulatory language, increasing consistency between the antidrug and 
alcohol misuse prevention program regulations where possible and 
eliminating regulatory provisions that were no longer appropriate. We 
proposed these changes to improve safety and lessen administrative 
burdens. The comment period for Notice 02-04 was scheduled to close May 
29, 2002, but was extended until July 29, 2002 (67 FR 37361; May 29, 
2002) as a result of public requests for extension.
    In Notice 02-04, the FAA proposed to make it clear that each person 
who performs a safety-sensitive function directly or by any tier of a 
contract for an employer is subject to testing. Several commenters 
stated that this was more than a clarifying change. The commenters 
suggested that, because more people would have to be tested, there 
would be an economic impact from this proposed change. In order to 
gather more information on the concerns expressed by the commenters, 
the FAA is not adopting the proposed revision in this final rule and 
will be publishing a Supplemental Notice of Proposed Rulemaking (SNPRM) 
in the near future. All other issues and comments related to Notice 02-
04 are addressed and resolved in this final rule.
    This amendment also replaces ``Office of Aviation Medicine'' with 
``Office of Aerospace Medicine,'' wherever it appears in the 
regulations.

Charts Summarizing the Changes

    The following charts summarize the principal and clarifying changes 
to appendices I and J to 14 CFR part 121. Where the proposed change is 
modified in this final rule, the FAA's reason is discussed in this 
preamble.

------------------------------------------------------------------------
 Current section number and title                  Summary
------------------------------------------------------------------------
              Principal Changes--Appendix I (Drug Testing)
------------------------------------------------------------------------
Section II. Definitions...........  [sbull] Changes the definition of
                                     ``Employer'' to clarify that
                                     employer may use a contract
                                     employee to perform a safety-
                                     sensitive function if the contract
                                     employee is included in the:
                                    1. Employer's FAA-mandated antidrug
                                     program; or
                                    2. Contractor's FAA-mandated
                                     antidrug program while performing a
                                     safety-sensitive function on behalf
                                     of that contractor (i.e., within
                                     the scope of employment with the
                                     contractor.)
Section V. Types of Testing         [sbull] Changes paragraph A., ``Pre-
 Required.                           employment Testing,'' to require
                                     pre-employment testing before
                                     hiring or transferring an
                                     individual into a safety-sensitive
                                     position.
                                    [sbull] Requires an employer to
                                     conduct another pre-employment test
                                     before hiring or transferring an
                                     individual into a safety-sensitive
                                     position if more than 180 days
                                     elapse between a pre-employment
                                     test and placing the individual
                                     into a safety-sensitive position.
                                    [sbull] Eliminates periodic drug
                                     testing.
Section IX. Implementing an         [sbull] Changes the title of the
 Antidrug Program.                   section.
                                    [sbull] Eliminates the requirement
                                     for plan approvals. Instead
                                     requiring that:
                                    --New and existing part 121 and 135
                                     certificate holders obtain an
                                     Antidrug and Alcohol Misuse
                                     Prevention Program Operations
                                     Specification. Only one operations
                                     specification is required for both
                                     the drug and alcohol programs.
                                    --New and existing part 145
                                     certificate holders obtain an
                                     Antidrug and Alcohol Misuse
                                     Prevention Program Operations
                                     Specification if they opt to have
                                     the drug and alcohol programs
                                     because they perform safety-
                                     sensitive functions for an
                                     employer. Only one operations
                                     specification is required for both
                                     the drug and alcohol programs.
                                    --All other entities required or
                                     opting to have Antidrug and Alcohol
                                     Misuse Prevention Programs register
                                     with the FAA. Only one registration
                                     is required for both the drug and
                                     alcohol programs.
                                    [sbull] Eliminates the 60-day grace
                                     period before employers must ensure
                                     that contractors and part 145
                                     certificate holders that perform
                                     safety-sensitive functions are
                                     subject to an antidrug program.
                                    [sbull] Requires updates to
                                     registration information as changes
                                     occur.
                                    [sbull] Makes it clear 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.
------------------------------------------------------------------------
              Clarifying Changes--Appendix I (Drug Testing)
------------------------------------------------------------------------
Section I. General................  [sbull] Adds a paragraph that lists
                                     applicable Federal regulations.
                                    [sbull] Adds a paragraph that
                                     prohibits falsification of any
                                     logbook, record, or report.
Section II. Definitions...........  [sbull] Changes the defined term
                                     ``Contractor company'' to
                                     ``Contractor'' to emphasize that
                                     ``Contractor'' could mean an
                                     individual or a company.
                                    [sbull] Changes the definition of
                                     ``Employee'' to eliminate
                                     unnecessary language.
                                    [sbull] Adds a definition of
                                     ``Hire'' to ensure that we do not
                                     inadvertently eliminate anyone who
                                     was required to submit to pre-
                                     employment testing under the 1994
                                     pre-performance provision.
Section III. Employees Who Must Be  [sbull] Makes it clear that all
 Tested.                             employees who perform safety-
                                     sensitive functions, e.g.,
                                     assistant, helper, or individual in
                                     a training status, whether they are
                                     full-time, part-time, temporary, or
                                     intermittent employees, are subject
                                     to an antidrug program regardless
                                     of the degree of supervision.
Section V. Types of Drug Testing    [sbull] Clarifies pre-employment
 Required.                           notification requirements.
                                    [sbull] Clarifies random testing
                                     requirements.
------------------------------------------------------------------------

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             Principal Changes--Appendix J (Alcohol Testing)
------------------------------------------------------------------------
Section VII. Implementing an        [sbull] Eliminates the FAA-required
 Alcohol Misuse Prevention           Alcohol Misuse Prevention
 Certification Program.              Certfication Statement. Instead the
                                     FAA is requiring:
                                    --New and existing part 121 and 135
                                     certificate holders to obtain an
                                     Antidrug and Alcohol Misuse
                                     Prevention Program Operations
                                     Specification. Only one operations
                                     specification is required for both
                                     the drug and alcohol programs.
                                    --New and existing part 145
                                     certificate holders to obtain an
                                     Antidrug and Alcohol Misuse
                                     Prevention Program Operations
                                     Specification if they opt to have
                                     the drug and alcohol programs
                                     because they perform safety-
                                     sensitive functions for an
                                     employer. Only one operations
                                     specification is required for both
                                     the drug and alcohol programs.
                                    --All other entities required or
                                     opting to have Antidrug and Alcohol
                                     Misuse Prevention Programs to
                                     register with the FAA. Only one
                                     registration is required for both
                                     the drug and alcohol programs.
                                    [sbull] Eliminates the 180-day grace
                                     period before employers must ensure
                                     that their contractors and part 145
                                     certificate holders that perform
                                     safety-sensitive functions are
                                     subject to an alcohol misuse
                                     prevention program.
                                    [sbull] Requires updates to
                                     registration information as changes
                                     occur.
                                    [sbull] Makes it clear that
                                     employers may use contractors
                                     (including part 145 certificate
                                     holders) to perform safety-
                                     sensitive functions only if the
                                     contractors are subject to an
                                     alcohol misuse prevention program
                                     for the entire time they are
                                     performing safety-sensitive
                                     functions.
------------------------------------------------------------------------
            Clarifying Changes--Appendix J (Alcohol Testing)
------------------------------------------------------------------------
Section I. General................  [sbull] Eliminates in paragraph D.
                                     the definition of
                                     ``Administrator,'' because it is
                                     defined elsewhere in the
                                     regulations.
                                    [sbull] Eliminates in paragraph D.
                                     the definition of ``Consortium.''
                                    [sbull] Changes in paragraph D. the
                                     defined term ``Contractor company''
                                     to ``Contractor'' to emphasize that
                                     ``Contractor'' could mean an
                                     individual or a company.
                                    [sbull] Adds paragraph H. that lists
                                     applicable Federal regulations.
                                    [sbull] Adds paragraph I. that
                                     prohibits falsification of any
                                     logbook, record, or report.
II. Covered Employees.............  Makes it clear that all employees
                                     who perform safety-sensitive
                                     functions, e.g., assistant, helper,
                                     or individual in a training status
                                     whether they are full-time, part-
                                     time, temporary, or intermittent
                                     employees, are subject to an
                                     alcohol misuse prevention program
                                     regardless of the degree of
                                     supervision.
------------------------------------------------------------------------

Discussion of Comments Received

General Overview

    The FAA received approximately 30 comments in response to Notice 
02-04, including comments from the Air Transport Association of America 
(ATA), Regional Airline Association (RAA), National Air Transportation 
Association (NATA), Airline Pilots Association, International (ALPA), 
and a joint filing by the Aeronautical Repair Station Association 
(ARSA) and 14 other entities.

Appendix I--Drug Testing Program

I. General

    In Notice 02-04, the FAA proposed to add two paragraphs to this 
section: ``Applicable Federal Regulations'' and ``Falsification.'' 
These paragraphs were designated ``D.'' and ``E.'' respectively. 
Proposed Paragraph D. included a list of Federal regulations dealing 
with the antidrug and the alcohol misuse prevention programs. Paragraph 
E., ``Falsification,'' proposed 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 
prohibiting falsification is used in 14 CFR 21.2, 61.59, 63.20, and 
65.20.
    The FAA received only one comment, which was supportive. The FAA is 
adopting the changes as proposed.

II. Definitions

Contractor
    In Notice 02-04, the FAA proposed to change the term ``Contractor 
company'' to ``Contractor'' to emphasize that a contractor can be an 
individual or a company who contracts with an aviation employer.
    The FAA received one comment regarding the proposed change from 
``Contractor company'' to ``Contractor.'' The commenter believed that 
the term ``Contractor company'' was adequate.
    The FAA has determined that the proposed clarification more clearly 
articulates the intended meaning of the term. Therefore, we are 
adopting the change as proposed.
Employee
    In Notice 02-04, the FAA proposed to 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 a person transferred into a position to perform a safety-
sensitive function.
    We also proposed eliminating the sentence ``Provided, however, that 
an employee who works for an employer who holds a part 135 certificate 
and who holds a part 121 certificate is considered to be an employee of 
the part 121 certificate holder for purposes of this appendix.'' This 
sentence was included at the inception of the drug testing regulations, 
when part 121 certificate holders were required to implement drug 
testing earlier than part 135 certificate holders. Because all existing 
part 121 and part 135 certificate holders have implemented the drug 
testing regulations, this language is no longer necessary.
    The FAA did not receive any comments on the proposed changes to the 
definition of ``Employee.'' We are adopting the changes as proposed.
Employer
    In Notice 02-04, the FAA proposed to change the definition of 
``Employer.'' The proposed change was intended to make it clear that no 
employer can use a contract employee to perform a safety-sensitive 
function unless the contract employee: is included under that 
employer's FAA-mandated antidrug

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program; or is included under the contractor's FAA-mandated antidrug 
program and is performing a safety-sensitive function on behalf of the 
contractor (i.e., within the scope of employment with the contractor.)
    We proposed to change the definition of ``Employer'' to close a 
loophole that was sometimes referred to as ``moonlighting.'' Under the 
moonlighting loophole, when an employee was covered under an employer's 
drug testing program (Employer A), another employer (Employer B) could 
have used that employee to perform safety-sensitive functions even when 
the work was unrelated to the employee's work with Employer A. In many 
cases, however, Employer A was unaware of its employee's activities for 
Employer B. One problem arising from this was that if Employer A 
terminated the employee, Employer B might not know that the employee 
was no longer covered by Employer A's drug testing program.
    Another problem was that, in the event of an accident while an 
employee was working for Employer B, Employer B could not have post-
accident tested the employee because the employee was not included in 
Employer B's drug testing program. Employer A might not have been aware 
of the need to test the employee, or it might not have agreed to test 
the employee if the employee had not been performing a safety-sensitive 
function within the scope of employment with Employer A. In adopting 
the original rule, it was not the FAA's intent to create a situation 
where a person performing a safety-sensitive function could avoid being 
tested. With adoption of this change, employers will only be permitted 
to rely on companies with whom they have contractual relationships to 
cover testing of their employees.
    The FAA received comments from several submitters, including ARSA 
and RAA, on the definition of ``Employer.'' Two commenters approved of 
the proposed definition of employer. One of the commenters stated that 
the proposed definition clarified the relationship between employees 
and employers. Also, this commenter noted ``that the stated problems 
with `moonlighting' and the adverse experiences that it has generated 
over the past years justify the blanket elimination of the practice of 
moonlighting. * * *
    ARSA noted that the proposed elimination of the moonlighting 
exception would cause great difficulty because, if a non-certificated 
subcontractor did not want to have its own program, it would need to be 
covered by the programs of all of the contractors for whom it performed 
safety-sensitive work. ARSA believed that many of these companies would 
refuse to establish programs of their own.
    ARSA correctly understands that under the final rule certificated 
and non-certificated contractors performing safety-sensitive functions 
must either obtain their own drug and alcohol programs or obtain 
coverage under each company for whom they are performing safety-
sensitive functions. This is a business choice that each entity must 
make. Since the beginning of the drug and alcohol programs, companies 
have made these choices. If a certificated or non-certificated 
contractor has its own program, it does not need to be included in the 
program of each company for whom it works.
    In Notice 02-04, the last sentence of the definition of 
``Employer'' read as follows: ``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.'' RAA recommended that the FAA delete the phrase 
``and is performing work within the scope of employment with the 
contractor.'' RAA believed that the phrase places a burden on an 
employer to determine whether the work it requires of the contract 
employee is substantially similar to the work the employee performs for 
the contractor. RAA believed the language was an attempt to remedy a 
post-accident testing issue, and in this light, RAA found the language 
``within the scope of employment'' to be ``vague, ambiguous, subject to 
multiple interpretations and should be deleted.'' Instead, RAA proposed 
that the language of post-accident testing be amended to allow an 
employer to post-accident test a contract employee.
    The examples provided in Notice 02-04 may have confused some 
commenters. The language ``in the scope of employment'' was not 
intended to be limited to post-accident testing. Upon further review of 
the proposal, we decided to include additional language to better 
explain that ``within the scope of employment'' means that it is part 
of the employee's job with the contractor to perform a safety-sensitive 
function for the employer.
    In proposing to revise the definition of ``Employer,'' the FAA 
intended to ensure that an individual performing a safety-sensitive 
function for an employer is covered by either the employer's program or 
the program of the contractor when the individual is performing work 
for the employer within the scope of his or her employment with the 
contractor. The previous language allowed an employer to use an 
individual for any safety-sensitive function, so long as the individual 
was covered by someone else's program. Under this final rule, if an 
individual is ``performing a safety-sensitive function on behalf of 
that contractor (i.e., within the scope of employment with the 
contractor),'' then the contractor is fully knowledgeable of what work 
the individual is doing, and the contractor can, therefore, remove from 
service any individual who tests positive while working for a client. 
This way, the regulation permits the employer to use an individual 
without directly covering him or her, but also ensures that the 
contractor will be in a position to know who is working where, so that 
safety and individual privacy are correctly balanced should a positive 
test result be received.
    Two commenters had concerns about ensuring that contractor 
employees are actually covered by the contractor's program. One 
commenter suggested that ``language be added to the final rule to 
require documentation that a contract employee is enrolled in the 
contractor's FAA mandated drug and alcohol testing program.'' The other 
commenter questioned whether or not it is an absolute requirement for 
FAA-approved repair stations to have actual copies of vendor plans on 
file at their facilities or whether an electronic means such as an 
updated listing that the FAA could maintain would be considered 
acceptable.
    The FAA notes an employer must verify that the contract employee is 
subject to the contractor's FAA-mandated testing program on an on-going 
basis. While the regulation does not require specific documentation to 
be kept on file, the employer remains responsible for demonstrating 
that it has ensured that it has only used a contract employee who is 
included under the contractor's testing programs. In the past, the 
FAA's Drug Abatement Division maintained an Internet Web site with a 
list of aviation companies that had approved drug and alcohol testing 
programs. The intent of this list was to assist employers in 
identifying contractors that were operating drug and alcohol testing 
programs in compliance with 14 CFR part 121, appendices I and J. 
However, the information on this list was current only at the time the 
list was placed on the Web site. For example, the list did not indicate 
whether the

[[Page 1844]]

company had implemented or continued to implement its drug and alcohol 
testing programs. Therefore, the information could not be used to 
determine compliance with the regulations, and the FAA removed the list 
from the Internet. The FAA has not imposed a specific documentation 
requirement for ensuring contractor coverage because we want to give 
employers the flexibility to meet this requirement on a continuing 
basis in any manner that is practical and effective for each particular 
employer.
    Another commenter requested that the FAA include within the rule 
text itself, the examples provided in the preamble to Notice 02-04. The 
FAA considered this proposal and decided that including examples in the 
rule text for this definition is unnecessary since we have clarified 
this definition in the final rule.
    The FAA notes that under this change to the regulation, an employer 
who currently has a ``moonlighting'' employee performing a safety-
sensitive function is not required to conduct a pre-employment test on 
the employee. However, the employer must include the employee under its 
antidrug and alcohol misuse prevention programs. With the effective 
date of this final rule, the ``moonlighting'' exception is eliminated 
and the employer may not hire or transfer any employee into a safety-
sensitive function before the employer conducts a pre-employment test 
on the employee and receives a negative drug test result on the 
employee. In addition, one of the commenters stated that as a 
consortium administering drug and alcohol services, he has noticed that 
Sec.  135.1(c) operators do not read and comply with part 135. The 
commenter recommended addressing this concern by adding the term 
``scenic aircraft operations'' in the definition of employer when Sec.  
135.1(c) is mentioned.
    The FAA has determined that it is only necessary to reference Sec.  
135.1(c) to describe these employers. Section 135.1(c) refers to ``any 
person or entity conducting non-stop sightseeing flights for 
compensation or hire in an airplane or rotorcraft that begin and end at 
the same airport and are conducted within a 25 statute mile radius of 
that airport.'' ``Scenic aircraft operations'' does not accurately 
describe these employers. A more elaborate description would not better 
notify these commercial operators of their regulatory duty to comply 
with the drug and alcohol testing regulations. As commercial operators, 
they must read part 135. Section 135.1(c) explicitly directs these 
operators to Sec. Sec.  135.249, 135.251, 135.253, 135.255, and 
135.353, which require these operators to conduct testing under part 
121, appendices I and J. We have concluded that the regulatory 
requirements are adequate as stated in the existing regulations. 
Consequently, we are not adopting the commenter's suggestion on this 
issue.
    Therefore, the FAA is adopting the definition of employer as 
proposed, with minor editorial changes for clarity.
Other Definitions
    We received two comments that suggested we clarify the definition 
of ``Safety-sensitive.'' One of the commenters also suggested that we 
add definitions for ``Performing maintenance'' and ``Cease to 
perform.'' The commenter stated, ``To be able to interpret what is 
meant when safety-sensitive is used the reader must be able to 
understand the phrase explicitly.'' The commenter also stated, 
``without a clear definition of performing maintenance, a clear 
understanding of safety sensitive can never be comprehended.''
    The FAA has determined that these terms are already sufficiently 
defined. The definition of ``Safety-sensitive function'' cross-
references the sections in appendices I and J, respectively, that 
describe which employees must be tested. It is not necessary to address 
specific examples of the tasks performed within safety-sensitive 
functions. Instead, the rule identifies the duties that are subject to 
drug and alcohol testing because of their relationship to aviation 
safety.
    In requesting a definition for ``Performing maintenance'' the 
commenter stated, ``Many people can perform regular maintenance on an 
aircraft engine and its components. Normally, only one or two of these 
individuals `release-to-service' the aircraft engine and/or its 
components after this maintenance is performed.'' The commenter noted 
that ``performing maintenance is a routine procedure on an aircraft 
engine,'' and asked when this becomes safety-sensitive. In addition, 
the commenter questioned when an employer should start drug and alcohol 
testing.
    The commenter seems to be confusing performance of maintenance with 
release to service. In fact, release to service is only one aspect of 
the broader concepts of maintenance and preventive maintenance, which 
are defined by the FAA in 14 CFR Sec.  1.1, and 14 CFR part 43. 
Maintenance and preventive maintenance are not defined differently for 
the purposes of drug and alcohol testing. Consequently, the FAA has 
determined that a definition for ``Performing maintenance'' is not 
necessary.
    In the course of discussing ``Safety-sensitive'' and ``Performing 
maintenance'' the commenter noted that manufacturing duties are ``just 
as safety-sensitive, if not more so'' than maintenance duties. The 
commenter questioned why the FAA does not require drug testing for 
manufacturing duties.
    The purpose of this rulemaking was not to add or remove categories 
of safety-sensitive employees. Any changes to the types of safety-
sensitive employees who must be subject to testing would need to be 
accomplished by notice and comment rulemaking procedures. The FAA did 
not propose any such changes; therefore, it would not be appropriate to 
consider the commenter's issues in this rulemaking.
    In requesting that we define ``Cease to perform,'' the commenter 
stated that: ``In a commercial business some procedures are time 
critical. In a small business where there are no `extra' people 
available to finish a time critical process, removing one person for a 
random drug test can have significant financial consequences.''
    Under the regulations, the employer is responsible for determining 
when to notify its employees to immediately report for random testing. 
Therefore, a small business can allow an employee to finish a ``time 
critical process'' before notifying the employee to report immediately 
for a random test. For further discussion of random testing, see 
Section V.B. Consequently, the FAA has determined that a definition for 
``Cease to perform'' is not necessary.
Hire
    Another commenter suggested that we add a definition of ``Hire'' to 
clarify when pre-employment testing needs to be done for a person who 
performs services as a volunteer, through barter, or in some other 
manner that may not seem to include a clear ``hiring event.'' This 
commenter also suggested that we ``specifically prohibit the 
performance of safety-sensitive duties by an applicant or as part of 
the application process.''
    The FAA agrees with the commenter regarding the need for a 
definition of ``Hire.'' Therefore, we have added a definition of 
``Hire'' to Section II. Definitions. The addition of this definition is 
not a substantive change, rather it is a clarification to ensure that 
the new pre-employment testing requirement does not inadvertently 
eliminate anyone who was required to submit to pre-employment testing 
under the 1994 provision. The FAA has

[[Page 1845]]

determined that the rule language and the new definition of hire have 
made it clear that an applicant is prohibited from performing safety-
sensitive duties until a pre-employment test is given and a negative 
result is received.

III. Employees Who Must Be Tested

    In Notice 02-04, the FAA proposed to make it clear that the 
employer's decision to include an employee in its drug and alcohol 
testing program must be based on the safety-sensitive duties that the 
individual performs rather than employment status (full time, part 
time, temporary, or intermittent). The proposed language was not 
intended to change the current rule's scope.
    We received several comments regarding this clarification, 
including a comment from RAA. Some commenters supported the 
clarification, while others expressed concerns.
    RAA stated that the phrase ``regardless of the degree of 
supervision'' confuses the reader on exactly which individuals are 
required to be tested. RAA saw this language as broadening the scope of 
coverage beyond individuals who perform safety-sensitive functions. As 
an example, RAA stated that many air carriers do not currently consider 
a mechanic's helper as performing a safety-sensitive function, since 
any task affecting the aircraft is reviewed and signed off by another 
individual licensed to perform a safety-sensitive function. RAA felt 
that this change significantly broadened the scope of testing for many 
air carriers and would increase their expenses.
    One commenter stated that the change makes it clear that the 
determination of who needs to be in a testing program is based on the 
safety-sensitive duties the individual performs. The commenter noted, 
however, that ``helpers'' are not mentioned in the regulatory text and 
that this omission could cause some confusion.
    Another commenter believed that the rule change would require a 
mechanic's helper, who is supervised by a maintenance technician, to be 
covered by the drug and alcohol testing requirements.
    The FAA's drug and alcohol testing regulations have always required 
testing of any employee who performs a safety-sensitive function 
regardless of the degree of supervision. Communications with the 
aviation industry, as well as compliance inspections and 
investigations, show that employers do not always understand which 
employees must be tested. Therefore, the FAA is specifying that the 
testing obligations apply to any individual who is full-time, part-
time, temporary, intermittent, or in a training status, if that 
individual is performing a safety-sensitive function. The revision does 
not change the scope of the regulation, it merely clarifies that any 
employee performing a safety-sensitive function must be tested even if 
that employee is being supervised during the performance of the safety-
sensitive function.
    Section III lists safety-sensitive functions and it does not list 
job titles. The determination of who should be tested is not based on 
the title of the position or the degree of supervision, but the actual 
functions performed. For example, it is possible that a mechanic's 
helper in one company might not perform safety-sensitive functions and 
would not need to be tested, while a mechanic's helper in another 
company might perform safety-sensitive functions and, therefore, must 
be subject to testing. The revision does not broaden the scope of 
testing or the costs associated with testing, but it may help employers 
to better understand whether they are properly testing all employees 
who perform safety-sensitive functions.
    The FAA agrees, however, that revising the regulatory text to 
include assistants and helpers would help avoid confusion and this 
change is made in the final rule.
    A commenter on pre-employment testing stated that, ``in small 
companies especially * * * an individual could begin to perform safety-
sensitive duties (without being formally transferred into a safety-
sensitive position). Possible examples include a parts warehouseman who 
performs maintenance on an as-needed basis or a reservations clerk who 
is trained to do weight and balance calculations.''
    The FAA has considered the commenter's concerns. However, we have 
not adopted the language proposed by the commenter because we believe 
Section III. Employees Who Must Be Tested, clearly states that the 
employer must test an employee before allowing the employee to 
accomplish any safety-sensitive task, even if the task only is 
accomplished on an as-needed basis. For example, a reservations clerk 
could be trained in the safety-sensitive duties of weight and balance 
calculations. However, the employee would only be tested if the 
employer identifies this person as someone who could be called upon to 
perform safety-sensitive duties on an as-needed basis. On the other 
hand, if the employer has not identified this person as someone who 
could be called upon to perform safety-sensitive duties and has not 
tested the employee, the employer may not use the person to perform 
safety-sensitive duties.

V. Types of Drug Testing Required

A. Pre-Employment Testing
    As discussed earlier, approximately 19,400 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 an individual'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 safety-sensitive function 
specified in the appendix.
    In 1994, the FAA revised its antidrug rule to require pre-
employment testing of an individual prior to the first time the 
individual performed a safety-sensitive function for an employer 
instead of requiring this testing ``prior to hiring.'' Under the 1994 
revisions, an individual was required to have a verified negative drug 
test result on a pre-employment test prior to performing a safety-
sensitive function, and the employer could not allow the individual to 
perform such a function until the employer received the verified 
negative pre-employment test result.
    Communications with the aviation industry and enforcement cases 
have shown that, in the absence of the very clear ``hiring'' event, 
some employers have misunderstood the pre-employment testing 
requirement. They neglected to conduct a pre-employment test and 
receive a negative test result before allowing employees to perform 
safety-sensitive functions. In the worst cases, this resulted in the 
performance of safety-sensitive functions by employees who subsequently 
tested positive for illegal drug use. Before the 1994 change, 
misunderstandings were not prevalent. The original language was a 
clearer standard for employers to follow. Therefore, the FAA proposed 
to change the language in paragraph V.A.1. back to requiring testing 
and receipt of a negative drug test result prior to hiring an 
individual for a safety-sensitive function.
    In paragraph V.A.2., the FAA proposed to require that employers 
drug test employees prior to transferring them into safety-sensitive 
functions.

[[Page 1846]]

This paragraph proposed to clarify to the employer that testing is 
required and a negative test result must be received before an employee 
is ``hired'' for a safety-sensitive function, even if that ``hiring'' 
is simply an internal transfer from a nonsafety-sensitive function to a 
safety-sensitive function.
    In paragraph V.A.3., the FAA proposed to address circumstances 
where individuals are given pre-employment drug tests (and receive 
negative test results) but a significant period of time passes between 
the date of the test and the date of hire or transfer into a safety-
sensitive function and thus into the employer's FAA-mandated drug 
testing program. The FAA proposed 60 days as an acceptable time between 
being given a pre-employment test and being brought into a drug testing 
program.
    The FAA received comments on each of the subparagraphs of V.A. 
Several commenters, including the Drug & Alcohol Testing Industry 
Association (DATIA) supported the clarification in paragraph V.A.1. 
that a negative test result must be received prior to hiring an 
employee for a safety-sensitive function, especially in light of the 
number of positive pre-employment test results.
    Several commenters, including ATA and RAA opposed the requirement 
in paragraph V.A.1. to conduct pre-employment testing with a negative 
test result received prior to hiring an individual. These commenters 
preferred the 1994 version of the regulation, which only required 
receiving the negative test result on a pre-employment test prior to 
performance.
    RAA stated that the FAA's proposal to have a negative drug test 
result received prior to hire rather than prior to the first 
performance of a safety-sensitive function would severely affect the 
ability of its members to hire in an efficient manner. In addition they 
stated that this proposal would unnecessarily increase costs to air 
carriers, without enhancing safety. RAA noted that, generally, newly-
hired pilots receive two to four weeks of classroom training before 
they perform any activity that could be considered a safety-sensitive 
function. RAA stated that classroom training generally occurs at the 
corporation's headquarters, and, since most of the hires do not live 
there, air carriers conduct pre-employment testing on a new hire's 
first day of class. They noted that this gives the air carrier ample 
time to receive and document an individual's results before any safety-
sensitive work is performed. RAA stated that the proposed rule would 
cause air carriers additional costs and administrative burdens because 
they must conduct a pre-employment test and receive a negative test 
result prior to beginning training of each individual. RAA noted that 
air carriers would have to conduct increased numbers of tests. RAA 
stated that air carriers would potentially be testing individuals who 
will never perform safety-sensitive functions, resulting in unnecessary 
costs to air carriers and infringement on the individual's rights.
    ATA commented that FAA should not revert to the ``prior to hire'' 
pre-employment testing language. ATA stated ``that failures to perform 
pre-employment testing have not been the result of confusion about when 
these tests must be performed, but instead because of a variety of 
other reasons: simple human error/forgetfulness, inadequate 
administrative systems, or occasionally the need to get someone in 
place in a position.'' They believed that ``the change proposed by FAA 
will not prevent these kinds of errors from occurring in the future.'' 
ATA asserted, ``the basic reason for the 1994 language--flexibility 
that realistically reflects the overall hiring process--has not changed 
and is as valid today as it was in 1994.'' Although ATA noted that FAA 
has a laudable goal in trying to reduce employer's errors in conducting 
pre-employment testing, they stated this goal ``does not outweigh the 
need for flexibility to conduct pre-employment testing in a way that is 
operationally efficient and cost-effective.'' ATA stated that the 
flexibility the 1994 language afforded its members was critical 
``because the hiring and training process for safety-sensitive 
employees can be complex and take a long time.'' ATA felt that its 
``members need the flexibility to conduct the pre-employment test at a 
time that makes sense in the course of the overall hiring process. For 
example, the pilot hiring/training process can take anywhere from four 
to six months, and even longer on occasion.'' ATA noted that given both 
the length of the process and that some individuals ultimately will not 
make it through the process, these individuals should not be pre-
employment tested before being hired. ATA also stated that the same 
issues and concerns apply to flight attendant and mechanic hiring, 
although the hiring/training process may be shorter. For these reasons, 
ATA requested that FAA retain the current text of section V.A.1.
    FAA enforcement experience shows that pre-employment testing is 
more effectively implemented when there is a clear event triggering the 
test, such as ``hiring'' an employee. Although some commenters 
preferred the 1994 version, the FAA found that the ``prior to 
performance'' language caused employers much confusion and made pre-
employment testing violations the most frequently occurring enforcement 
cases.
    Pre-employment violations are extremely serious because they 
indicate that an employee was placed into a safety-sensitive function 
without the proper testing. Statistics show that pre-employment testing 
yields the largest number and percentage of positive test results, a 
larger number and percentage than all other FAA-required drug testing 
combined. Pre-employment testing functions as the gatekeeper in the 
FAA-required drug testing program because it prevents the entry into 
safety-sensitive work of individuals who use illegal drugs. Therefore, 
any pre-employment violation poses the risk of permitting the entry of 
an illegal drug user into the aviation industry. For these reasons, it 
is imperative that we provide employers with a clear and unambiguous 
standard for the timing in which to conduct pre-employment testing. We 
have determined that the event of hiring an employee provides an 
unambiguous standard for the timing of pre-employment testing. Although 
the ``prior to hire'' language may mean that some employers may conduct 
testing of individuals who do not complete the employer's training 
program, this may ultimately save employers money by eliminating 
illegal drug users before employers expend time, effort, and funds to 
train those individuals. Consequently, because of the safety 
implications of allowing undetected drug users to enter into safety-
sensitive functions, the FAA is using the more clear and direct ``prior 
to hire'' language.
    Furthermore, pre-employment drug testing is a less expensive and 
more common prerequisite for employment in the United States today than 
it was in 1994. Employers across the United States are finding that 
pre-employment, random, and other forms of testing make economic sense. 
According to a Substance Abuse and Mental Health Services 
Administration (SAMHSA) study, illegal drug use and alcohol misuse cost 
United States' private employers billions of dollars each year in costs 
associated with absenteeism, on-the-job errors, injuries to employees, 
increased insurance costs and workers compensation payments, etc. 
Requiring pre-employment testing prior to hiring an individual should 
actually save employers from expending salary, benefits, and workers 
compensation on active illegal drug users.

[[Page 1847]]

    Therefore, the FAA is adopting paragraph V.A.1. as proposed, with 
minor editorial changes. Also, we added the words ``conducts a pre-
employment test and'' to make it clear that the test for which the 
employer is receiving a verified negative drug test result is a pre-
employment test.
    The FAA is adopting paragraph V.A.2. as proposed, with minor 
editorial changes. Specifically, we added the words ``conducts a pre-
employment test and'' to clarify that the test for which the employer 
is receiving a verified negative drug test result is a pre-employment 
test.
    Some commenters, including NATA, supported the 60-day provision in 
paragraph V.A.3. However, several commenters, including ATA and RAA, 
opposed the proposed 60-day provision. ATA stated that the 60-day 
period would not have any public safety benefit and would have 
additional cost. They recommended that the 60-day period be deleted. 
Alternatively, they suggested that the 60-day time period be changed to 
180 days because the hiring and training process for pilots and flight 
attendants can take up to 6 months.
    Another commenter opposed the 60-day provision in V.A.3. because he 
believes ``it is not unusual for 60 days to elapse between the time a 
pilot or dispatcher candidate walks through the front door, until he/
she is completely checked out in his/her safety-sensitive functions. To 
give the newly checked-out employee yet another pre-employment drug 
test makes no sense at all.''
    RAA opposed the proposed 60-day time frame because this provision 
would cause many of its members to conduct more than one pre-employment 
test and would require its members to more closely track the time 
between pre-employment testing and putting an employee into the testing 
program. RAA explained that under Postal regulations its members' new 
hires must be pre-employment tested within 90 days. Thus the proposed 
60-day window for pre-employment testing new hires is too narrow for 
RAA members.
    After reviewing the comments, we have determined that 180 days, as 
suggested by ATA, is an acceptable time between conducting a pre-
employment test and repeating the test before bringing an individual 
into an FAA-mandated drug testing program. While we want to ensure that 
there is not a significant delay between the pre-employment test and 
the individual being subject to a drug testing program, we want to give 
the employer some flexibility. However, the longer the delay between 
the pre-employment test and the individual assuming a safety-sensitive 
function, the less the deterrence factor because the individual is not 
in an on-going testing program. The FAA has determined that increasing 
the time period from 60 days to 180 days still provides an acceptable 
deterrence factor, while giving the employer more flexibility.
    In looking at the proposed pre-employment testing rule text and 
accompanying preamble, the FAA has recognized that some of the 
discussion about the proposed changes to pre-employment testing may 
have caused misunderstandings about pre-employment testing and 
performance of a safety-sensitive function. The FAA believes that some 
commenters may have misunderstood the proposed 60-day provision as 
requiring that an employee must be tested again if the employee does 
not begin performing safety-sensitive functions within the 60 days. The 
final rule requires a second pre-employment test only when the person 
was not actually hired or transferred within the specified period that 
is now 180 days. Because of the apparent confusion about the use of the 
word ``perform'' in the pre-employment testing context, the FAA has 
revised the rule language in paragraph V.A.1. from ``hire any 
individual to perform a function listed * * *'' to ``hire any 
individual for a safety-sensitive function listed * * *'' We did this 
to remove the word ``perform'' from paragraph V.A.1. because it 
appeared to cause confusion in paragraph V.A.3. In addition, this 
change to paragraph V.A.1. more directly mirrors the proposed language 
in V.A.2., which appears to have been clearer.
    Therefore, we are adopting the proposed language in paragraph 
V.A.3. with the change described above to increase the 60-day period to 
180 days.
    One commenter correctly recognized that Notice 02-04 proposed 
requiring pre-employment testing of any individual hired or transferred 
into a safety-sensitive position, even if that individual were rehired 
by a former employer. However, when we reviewed the language in 
paragraph V.A. we realized that there was a conflict between paragraphs 
V.A.1., V.A.2. and V.A.4. The FAA proposed keeping paragraph V.A.2. 
with no changes, but redesignating it as V.A.4. Proposed paragraphs 
V.A.1. and V.A.2. clearly stated that any individual who is hired or 
transferred must be subject to pre-employment testing. Historically, 
paragraph V.A.2. (redesignated as V.A.4.) allowed but did not require 
an employer to pre-employment test an individual who previously 
performed a covered function for the employer and was removed from the 
random pool for other than a verified positive test result or a refusal 
to submit to testing, such as assignment to a nonsafety-sensitive 
function. This allowed an employer to return an individual to a safety-
sensitive function without subjecting that individual to another pre-
employment test.
    In this final rule we have revised the language of paragraph V.A.4. 
to be consistent with paragraphs V.A.1. and V.A.2. so that an employer 
cannot rehire a former employee without a pre-employment test and 
receipt of a negative drug test result. The final rule continues to 
allow employers to restore a current employee to a safety-sensitive 
function without pre-employment testing in limited circumstances. 
Specifically, if the employee is removed from the random testing pool 
for reasons unrelated to a positive test result or a refusal to test, 
and the employee is not a hire or transfer, the employer may put the 
employee back in the random testing pool without a pre-employment test. 
For example, if an employee is removed from the random pool because of 
a work-related injury or family medical leave, the employer may place 
that employee back into the random testing pool after the absence, so 
long as the employer is not ``hiring'' or ``transferring'' the employee 
into a safety-sensitive position.
    In addition, in the introductory text to redesignated paragraph 
V.A.4., we restored the concept that an employer must receive a 
negative test result on a pre-employment test. Historically, the 
requirement for the receipt of a negative test result was included in 
paragraph V.A.3., but it was inadvertently omitted in the proposal.
    Another commenter believed that requiring rehired employees to be 
pre-employment tested would be ``cost prohibitive'' and a large number 
of employers would need to be educated on this change. Therefore, this 
commenter requested a long grace period to allow companies to become 
familiar with this change.
    The FAA has determined that postponing the effective date of this 
provision is not necessary. While all employers governed by the drug 
and alcohol testing regulations must become familiar with all the 
changes in this final rule, we have no data to suggest that a large 
number of pre-employment tests will be triggered by this new provision. 
Furthermore, while the commenter notes that she believes the change is 
``cost prohibitive'', she does not oppose the change or offer data to 
support that a large number of

[[Page 1848]]

employers would need to conduct significantly more pre-employment tests 
as a result of this change.
    One commenter suggested that we add a definition of ``Hire'' to 
clarify who must be pre-employment tested. The FAA agrees with this 
commenter. For a discussion of this issue see Section II. Definitions.
    There were no changes to paragraphs V.A.4.(b) and (c). They are 
adopted as proposed.
    In reviewing the draft final rule text, we realized that the 
language in paragraph V.A.5., which has been in the regulation for many 
years, could have caused some confusion. Specifically, proposed 
paragraph V.A.5. required an employer to notify ``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.'' This language was not intended to require 
employers who receive hundreds of unsolicited applications every year 
to notify each of these individuals of the requirement to test. 
Instead, the intent is to ensure that prior to pre-employment testing, 
each individual has been notified of the requirement to take that test 
and we revised the rule accordingly. Also, we updated the reference in 
the last sentence of the proposed paragraph because we redesignated 
paragraph V.A.2. as V.A.4. in Notice 02-04. Further we eliminated the 
reference to section V.A.1. in the proposal because it was redundant.
    In the final rule, we have made minor editorial changes to section 
V.A., including substituting the word ``individual'' for the words 
``applicant,'' ``person,'' and ``employee,'' as appropriate for 
clarity.
    The FAA has adopted the provisions proposed in paragraph V.A., Pre-
Employment Testing, with the changes described above and minor 
editorial changes.
B. Periodic Testing
    In Notice 02-04, the FAA proposed to eliminate paragraph V.B, 
Periodic Testing. 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 flight crewmembers are subject to pre-employment testing and annual 
random testing, the FAA has determined that the elimination of periodic 
drug testing at this time will not compromise safety and will be a cost 
benefit to those aviation industry employers implementing drug 
programs. Also, there has never been a periodic testing requirement in 
appendix J. Because of the elimination of periodic testing, the 
remaining paragraphs in this section are being relettered accordingly.
    The FAA received several comments, including one from ATA, 
supporting the proposed elimination of periodic testing. We agreed with 
the commenters and are adopting the changes as proposed.
C. Random Testing
    In Notice 02-04, the FAA proposed adding a paragraph to the random 
testing section for consistency with appendix J. Under the proposed 
provision, each employer must ensure that each safety-sensitive 
employee who is notified of selection for random drug testing proceeds 
to the collection site immediately. Under the proposal, even if the 
employee is performing a safety-sensitive function at the time of the 
notification, the employer must ensure that the employee ceases to 
perform the safety-sensitive function and proceeds to the collection 
site as soon as possible. A similar requirement has been included in 
appendix J since its issuance in 1994 and has worked well. Two 
commenters supported the proposed change to the random drug testing 
section. One commenter stated that the proposed change would clear up 
the misunderstanding of the regulation that some companies have had.
    ALPA submitted a comment generally opposing random testing and 
specifically stated: ``We suggest deleting this new proposed language, 
and replacing it with the requirement that the employee report for the 
drug or alcohol test as soon as is practicable after notification of 
the test.'' ALPA supported the use of the Aircraft Communications 
Addressing and Reporting System (ACARS) ``to notify pilots flying an 
aircraft of their obligation to report for a random drug and/or alcohol 
test upon landing. * * * By using on-board notification to crewmembers 
of their obligation to submit to urine testing upon landing, the 
crewmembers are able to defer emptying their bladders and avoid 
subsequent problems with producing the requisite urine specimen. Such 
notification and testing has been working well for employees and air 
carriers.'' ALPA noted that ``the new proposed language would prevent 
the continued use of this means of notification, as it would require 
the pilots to cease operating the aircraft after notification of 
testing.'' Finally, ALPA concluded ``there is no reason to preclude a 
pilot from completing an assigned flight segment and then reporting for 
the test as soon as practicable.''
    Another commenter noted that ``some level of management oversight 
and control as to the timeframe allowed after a random drug test 
notification'' is needed in the random testing section.
    The FAA has determined that the proposed rule language continues to 
provide the employer a reasonable degree of control over when to notify 
an employee of the need to take a random drug test. The proposed rule 
language does not preclude pilots from completing a flight segment in 
progress in order to submit to random testing. Employers have always 
had the option of notifying employees of random testing after 
completion of their safety-sensitive duties. In addition, the proposed 
rule language does not permit advance notification of random testing of 
pilots and flight attendants. Such advance notification is inherently 
unfair because pilots and flight attendants are only two of the eight 
categories of safety-sensitive employees. In other words, six 
categories of employees are not accessible by ACARS advance 
notification. In addition to the unfairness issue, ACARS advance 
notification has been linked, through enforcement cases, to dilutions, 
substitutions, and adulterations. ACARS notification could provide the 
employee with an opportunity to consume large quantities of fluid 
immediately before the test, which may dilute the specimen. Also, ACARS 
notification could provide the employee with an opportunity to 
substitute a specimen or to obtain access to adulterants to subvert the 
testing process.
    Another commenter questioned whether ``all personnel performing a 
safety-sensitive function for a repair station holding an FAA-approved 
program must be tested equally and throughout the year, regardless of 
the volume of work performed by contract to an air carrier, and 
regardless of whether a person actually performs a safety-sensitive 
function directly on an air carrier's aircraft.''
    The FAA notes that if an employer, who conducts testing in 
accordance with FAA requirements, decides that an employee will be 
performing safety-sensitive functions at any time, the employer must 
ensure that the employee is subject to random testing throughout the 
year. The continuity of

[[Page 1849]]

the testing does not depend on the volume of work, but does depend on 
whether the employee has been designated by the employer to accomplish 
safety-sensitive functions. Thus, once an employer decides that an 
employee is subject to the employer's FAA-required testing program, the 
employee must remain subject to all forms of FAA-required testing, 
including random testing, as long as the employee may be called upon to 
perform safety-sensitive functions. The FAA has made it clear in 
Section III. Employees Who Must Be Tested, that employees who are 
designated as available to perform safety-sensitive functions even 
part-time or intermittently must be tested. The FAA has determined that 
the proposed random testing language does not need to be revised in 
response to this comment. Therefore, we are adopting the random testing 
provision as proposed.
E. Testing Based on Reasonable Cause
    In Notice 02-04, the FAA proposed to change the reasonable cause 
language. Specifically, we proposed to allow, but not require, an 
employer to make a reasonable cause determination regarding a 
contractor's employee. The employer would be allowed to refer a 
contract employee for testing under the contractor's drug and alcohol 
programs without waiting for a supervisor employed by the contractor to 
confirm the employer's determination.
    The FAA received comments from several submitters, including ATA, 
RAA, NATA, and DATIA, on the proposed change to reasonable cause 
testing. Four of the commenters, including NATA and DATIA, supported 
the concept of allowing an employer to have its supervisors make 
reasonable cause determinations regarding contract employees and refer 
them for testing under the contractor's drug and alcohol programs.
    Two of the commenters, however, suggested that the FAA did not go 
far enough because the proposed reasonable cause testing of contractors 
provision was permissive, not mandatory. One commenter recommended that 
the employer should be required to make a reasonable cause 
determination regarding any contract employee who performs a safety-
sensitive function on the employer's premises and under the employer's 
supervision. Also, the commenter recommended that the employer be 
required to refer the contract employee for a reasonable cause test 
under the contractor's program. Another commenter similarly believed 
that the provision should be mandatory and noted that the proposed rule 
language did not ``indicate what steps the employer can or must take 
after the contractor employee has been identified as a possible drug or 
alcohol user.'' The commenter listed specific steps for testing the 
contract employee and for providing the test results to the relevant 
employers.
    ATA and RAA opposed the proposed change to reasonable cause 
testing. ATA and RAA both had concerns over the legal implications of 
the proposed permissive language. In addition, ATA stated that it 
``opposes this proposal because it would place our members in the 
middle of a sensitive employer-employee situation with regard to 
someone else's employee. This provision, if adopted, would create 
administrative burdens and legal risks that are unacceptable * * * 
Moreover, even if an airline-employer makes a proper and timely 
referral there is no guarantee that the contractor will conduct the 
testing in a timely manner.''
    After reviewing the comments received, the FAA agrees with 
commenters that the permissive nature of this provision is not 
advisable because there are too many contingencies in the proposal. For 
example, as ATA pointed out, even if an employer makes a reasonable 
cause determination on a contract employee, there is no guarantee that 
the contractor will conduct the testing in a timely manner. Therefore, 
the FAA has not adopted the proposed reasonable cause testing of 
contract employees provision.
    It is important to note that the FAA proposed the change because 
there was confusion as to who was responsible for making the 
determination and conducting reasonable cause testing of contract 
employees on an employer's premises. The FAA remains concerned that 
some contract employees are not being tested for reasonable cause 
because their actual employers are not on-site. The FAA may revisit 
this issue in future rulemaking. In the meantime, the FAA encourages 
employers to continue to make reasonable cause determinations regarding 
their own employees and continue to contact their contractors regarding 
any reasonable cause concerns that may arise regarding contract 
employees.
    In addition, in Notice 02-04, we proposed to delete the following 
two sentences from paragraph V.D.1.: ``Each employer shall test an 
employee's specimen for the presence of marijuana, cocaine, opiates, 
phencyclidine (PCP), and amphetamines, or a metabolite of those drugs. 
An employer may test an employee's specimen for the presence of other 
prohibited drugs or drug metabolites only in accordance with this 
appendix and the DOT Procedures for Transportation Workplace Drug 
Testing Programs' (49 CFR part 40).'' The first sentence is redundant 
of the requirements in 49 CFR part 40. The second sentence is no longer 
appropriate.
    The FAA did not receive any comments on the proposed paragraph 
V.D.1. Therefore, the FAA has adopted this change to paragraph V.D.1. 
as proposed, now redesignated as paragraph V.D.

IX. Implementing an Antidrug Program

    In Notice 02-04, the FAA proposed eliminating the requirement that 
each employer submit an antidrug program plan to the FAA for approval. 
Non-certificated employers or contractors conducting testing will be 
required to register with the FAA. Certificate holders must obtain an 
Antidrug and Alcohol Misuse Prevention Program Operations Specification 
(OpSpec). This provides the FAA with the information it needs for 
surveillance of these programs. In addition, we proposed changing the 
title of this section so it more accurately reflects the section's 
content.
Replacement of Plan Approvals With OpSpecs and Registrations
    We proposed eliminating the requirement for each employer to submit 
an antidrug program to the FAA for approval. Part 121 and part 135 
certificate holders, and part 145 certificate holders who decide to 
have their own FAA testing program, will be tracked in the FAA's 
Operations Specifications Sub-System (OPSS). By using OPSS, certificate 
holders will 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 to data regarding their company.
    New and existing part 121 and part 135 certificate holders must 
obtain an Antidrug and Alcohol Misuse Prevention Program OpSpec. The 
air carrier's FAA Principal Operations Inspector issues the OpSpec. New 
and existing part 145 certificate holders who choose to have their own 
FAA testing program must obtain an Antidrug and Alcohol Misuse 
Prevention Program OpSpec from their FAA Principal Maintenance 
Inspector. Once the Antidrug and Alcohol Misuse Prevention Program 
OpSpec has been issued, the certificate holder must contact its FAA 
Principal Operations Inspector or Principal Maintenance Inspector, as 
applicable, to make any

[[Page 1850]]

future changes to the OpSpec. Under the final rule, an entity will only 
be required to file one OpSpec that covers both the drug and the 
alcohol programs. To clarify the certificate holder's responsibility to 
update its Antidrug and Alcohol Misuse Prevention Program OpSpec, we 
added section IX.D.4. to the final rule. This clarification 
incorporated language from the sample Antidrug and Alcohol Misuse 
Prevention Program OpSpec, included in Notice 02-04, regarding the 
certificate holder's responsibility to update its OpSpec whenever 
changes to the data occur.
    The FAA also proposed changing the antidrug program plan and 
alcohol misuse prevention program certification statement requirements 
for new and existing: (1) Air traffic control facilities not operated 
by the FAA or by or under contract to the U.S. military; (2) 
sightseeing operators as defined by Sec.  135.1(c); and (3) non-
certificated contractors that elect to have an antidrug and alcohol 
misuse prevention program. Under the final rule, the first time an 
entity registers it will only be required to file one registration that 
covers both the drug and the alcohol programs. However, a company must 
amend its registration information whenever changes to the data in the 
registration occur.
    Generally, the registration requires less information than the 
antidrug plan required. The only new item (for the antidrug program) is 
a statement signed by a company representative that the company will 
comply with part 121, appendices I and J, and 49 CFR part 40. Companies 
will be able to meet their registration requirements for both the 
antidrug program and the alcohol misuse prevention program by signing 
one statement.
    Every employer must either register with the FAA or obtain an 
Antidrug and Alcohol Misuse Prevention Program OpSpec, as appropriate. 
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 and do 
not have their own programs, they need not register with the FAA or 
obtain an Antidrug and Alcohol Misuse Prevention Program OpSpec. 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 obtain 
an Antidrug and Alcohol Misuse Prevention Program OpSpec and the non-
certificated contractor would register with the FAA as outlined in the 
rule.
    The FAA received several comments on Section IX. DATIA supported 
the proposal to eliminate antidrug plan approvals. Another commenter 
supported the elimination of antidrug plan approvals and noted that the 
proposed changes standardized the process for employers and the FAA.
    The FAA received several comments concerning OpSpecs. RAA viewed 
the OpSpec requirement as an administrative procedure that could be 
handled in a variety of other more effective methods instead of being 
codified. RAA noted that airline individuals who specialize in aircraft 
navigational and air traffic procedures are typically responsible for 
maintaining the OpSpecs. RAA also noted that administering the antidrug 
and alcohol misuse prevention programs is typically accomplished by an 
individual in human resources. RAA stated that, while such individuals 
can coordinate their duties within the company, it sees no reason why 
an administrative task has to be regulated. Therefore, RAA requested 
that references to the OpSpec be deleted from the adopted rule.
    In the past, the FAA has required that certificate holders and 
other entities receive FAA-approval of their antidrug and alcohol 
misuse prevention programs. Although the FAA has eliminated the 
regulatory requirement for a company to obtain FAA approval of these 
programs, the FAA needs to continue to track companies with programs. 
The mechanisms in this rule for the FAA to track companies with 
programs are OpSpecs for certificate holders or registration for other 
entities. This results in a more streamlined process than the old plan 
approval process while still providing the FAA with the necessary 
information. The information received continues to be important to the 
FAA, and we do not consider this new process merely an administrative 
task that can be accomplished without regulation. In response to RAA's 
concern regarding personnel responsibilities, the FAA has determined 
that while the employer may have to adjust responsibilities within its 
organization, this initial burden is significantly offset by the 
reduction in the overall paperwork burden. Therefore, the FAA is 
adopting the requirement for an Antidrug and Alcohol Misuse Prevention 
Program OpSpec or registration to replace FAA approval.
    ATA supported the proposal to track pertinent information through 
the OPSS and to eliminate the requirement for companies to have FAA-
approved plans. However, ATA was concerned that this administrative 
change will create confusion as to who will enforce this requirement 
within the FAA. ATA recommended that FAA clearly state in the final 
rule that FAA Principal Operations Inspectors are not authorized to 
require different or additional information and that the Drug Abatement 
Division has exclusive authority over air carrier OpSpecs submitted in 
compliance with this appendix.
    Another commenter did not agree with adding the new OpSpec because 
the commenter believed that the new OpSpec intermingled the 
responsibilities of the Drug Abatement Division and FAA Principal 
Maintenance Inspectors.
    In response to these commenters, the FAA notes that under the new 
OpSpec process, the role of the local Flight Standards District Office 
is limited to creating and updating the actual Antidrug and Alcohol 
Misuse Prevention Program OpSpec. The FAA Principal Operations 
Inspector and the FAA Principal Maintenance Inspector have no 
responsibilities for oversight of a company's drug and alcohol testing 
programs. All oversight responsibility remains with the Drug Abatement 
Division. We do not see an intermingling of responsibilities, rather 
the new OpSpec process offers separate but complimentary interaction 
between the Drug Abatement Division and the Flight Standards Service. 
Therefore, it is not necessary to add rule language that clarifies 
internal FAA responsibilities for the OpSpec.
    NATA agreed with the FAA that there will be a reduction in the 
paperwork burden for certificate holders if programs no longer require 
FAA approval and issuance of plan numbers. However, NATA objected to 
the FAA placing on the certificate holders the burden of obtaining the 
new OpSpec. NATA noted that since this is a change mandated by the FAA, 
FAA inspectors should initiate contact with certificate holders under 
their supervision as they routinely do when new or changed OpSpecs are 
issued. NATA requested that the proposed language indicating that 
certificate holders bear the responsibility for obtaining the OpSpec be 
revised to clarify that existing operators will be issued the OpSpec by 
their primary inspector.
    Although the FAA's Principal Operations Inspectors or Principal 
Maintenance Inspectors will continue to

[[Page 1851]]

conduct their routine interaction with certificate holders, the 
information needed to prepare the OpSpec must come from the certificate 
holder. While this might be an inconvenience, as the commenter noted, 
there will be a reduction in the certificate holder's overall paperwork 
burden by eliminating the plan approval process. The ultimate 
beneficiary of the new OpSpec process will be the certificated entity, 
which will only be required to update its data in one FAA tracking 
system, and will no longer be required to provide information for a 
separate Drug Abatement Division tracking system.
    Several commenters, including ATA and NATA, asked procedural 
questions about implementing the new OpSpec and registration processes. 
ATA recommended that FAA identify a person within the Drug Abatement 
Division for air carriers to contact in the event of a problem 
regarding its OpSpec under this appendix. ATA stated that, to avoid 
confusion, the FAA should specify the documentation that contractors 
must provide to employers to prove that they have compliant antidrug 
and alcohol misuse prevention programs in place. NATA commented that 
additional information, such as a model certification statement, would 
be particularly helpful to small operators, including Sec.  135.1(c) 
operators.
    The changes requested by the commenters can be accomplished without 
modifying the regulatory text. Once the rule becomes effective, the 
public can obtain information about process and implementation by 
contacting the Drug Abatement Division at the address in Section IX or 
by referencing the Drug Abatement Division's Web site: http://www.faa.gov/avr/aam/adap.
    Another commenter recommended the OpSpec identify the certified 
laboratory and medical review officer (MRO) that the company is using, 
and suggested that the FAA Principal Operations Inspector provide a 
written confirmation of approval/acceptance of the OpSpec. One 
commenter recommended that the FAA allow a transition period for 
companies that will be required to have an Antidrug and Alcohol Misuse 
Prevention Program OpSpec, while another commenter noted that companies 
were already obtaining this OpSpec.
    In response to the recommendation that the OpSpec contain more 
detailed information and written confirmation of approval/acceptance, 
the FAA has determined that providing detailed information, including 
the current laboratory and MRO, could defeat the simplicity of the 
OpSpec and registration requirement under the new rule. Under the 
antidrug plan approval process, this level of detail was required. This 
led to each company filing numerous amendments because such detailed 
information changed frequently. Also, waiting for the FAA to approve 
the contents of the antidrug plan added delay.
    In deciding to move to the OpSpec and registration requirement, the 
FAA carefully considered whether it should be evaluating/approving the 
written information submitted at the beginning of the testing program. 
The FAA decided that the best evaluation of how a company is testing is 
done on-site at the company during FAA inspections. Successful 
implementation of a testing program is the employer's responsibility, 
and is not shown merely on a paper submission at the beginning of a 
testing program. Therefore, the FAA decided to collect only enough 
information in the registration statements and OpSpecs to provide a 
starting point for our inspections.
    The FAA notes that many companies have already obtained the 
Antidrug and Alcohol Misuse Prevention Program OpSpec. In addition, 
because the requirement will not become effective until 30 days after 
this final rule is published, there is a built-in transitional period 
to obtain an OpSpec for any company that has not already obtained an 
Antidrug and Alcohol Misuse Prevention Program OpSpec.
    One commenter was concerned that the plan approval process took a 
long time and may have caused the industry to lose revenue because 
operations could not begin until the FAA approved the antidrug plans. 
This commenter expressed hope that the OpSpecs and registration 
processes would streamline and expedite the beginning of operations, 
thereby minimizing any time delays.
    The FAA is going forward with the OpSpec and registration processes 
as proposed, with minor clarifying changes, because we have determined 
that these, in fact, will streamline the gathering of basic information 
that the FAA needs for monitoring the compliance of companies 
conducting FAA-required drug and alcohol testing. At the same time they 
will lessen the burden on the operator. As suggested by one of the 
commenters, we expect that the OpSpec and registration processes will 
expedite the beginning of operations for employers.
Elimination of 60-Day Grace Period for Contractors
    The FAA also proposed eliminating the 60 days allowed for new 
employers to ensure that their contractors are subject to an antidrug 
program. This provision provided a grace period that was important at 
the inception of the antidrug regulations in 1988 because drug testing 
was a new regulatory requirement for employers and their contractors. 
However, since contractor programs must be implemented by the time the 
contractor performs safety-sensitive functions for an employer, this 
grace period is no longer necessary or appropriate.
    The FAA received a supporting comment from DATIA on the proposed 
elimination of the 60-day grace period for contractors of new employers 
to implement an antidrug program. The FAA proposed this change in 
Section IX for employers to ensure that their contractors are covered 
by an FAA-mandated antidrug program. We are adopting it as proposed.
Adoption of the Plain Language Format for Section IX
    The FAA proposed two formats for the rule language in this section. 
While both proposals had the same requirements, they differed greatly 
in format. The first option was presented in table format as much as 
possible. The second option followed the format of the current rule.
    The FAA received a comment objecting to inclusion of the words ``a 
non-certificated repair station, * * * or any other individual or 
company that provides safety-sensitive service.'' This commenter 
believed that this language, as posed in option 1, added a new 
requirement to the regulations.
    As stated above, the options offered different formats but had the 
same requirements. Since the beginning of the program, certificated and 
non-certificated contractors have been allowed, but not required, to 
submit and implement antidrug programs under 14 CFR part 121, Appendix 
I, Sections IX.A.3-4. Therefore, this is not a new requirement.
    In the final rule we made a clarifying change to section IX.A. to 
remind existing companies that they must continue to follow the 
regulatory provisions in appendix I. In Notice 02-04, we articulated 
this requirement in option 2, but we did not explicitly address it in 
option 1. Therefore, we have added it to section IX.A. in the final 
rule and changed sections IX.C.2.a.iii. and b.iii. for consistency.
    The FAA received comments from several submitters, including NATA 
and

[[Page 1852]]

DATIA, supporting the table format. Therefore, the FAA is adopting the 
table format as proposed with minor editorial changes.
    The FAA also received a comment from RAA requesting that we give 
operators the option of submitting information electronically. RAA 
noted that even if FAA is not now capable of receiving information 
electronically, we should nonetheless write it into the rule so that 
when we do have the capability, operators can submit it to the FAA 
without first requesting an exemption to the rule.
    The FAA has determined that it is premature to incorporate into the 
current rule text any specific reference to electronic filings. 
However, we agree with the spirit of RAA's comment that the final rule 
should allow room for developments in acceptance and retention of 
electronic filings. Currently, we are not able to receive registration 
information electronically. The FAA is eager to pursue avenues for 
electronic filing, and therefore, in response to RAA's suggestion, we 
have added language in paragraph IX.E.2. to allow for registration 
information to be sent ``in the form and manner prescribed by the 
Administrator.''

Appendix J--Alcohol Misuse Prevention Program

I. General

    In Notice 02-04, the FAA proposed the following changes in 
paragraph D. Definitions. We proposed to eliminate the definition of 
``Administrator'' because it is defined elsewhere in 14 CFR. We also 
proposed to change ``Contractor company'' to ``contractor'' to 
emphasize that a contractor could be an individual.
    The FAA did not receive any comments on the proposed changes and we 
adopt them as proposed.

II. Covered Employees

    In Notice 02-04, we proposed to make it clear in appendix J as we 
did with appendix I that including an employee in a drug and alcohol 
testing program depends on his or her duties not employment status 
(full time, part time, temporary, or intermittent). In this final rule, 
we have further modified appendix J to ensure that this is clear. We 
made a similar change in appendix I in response to a comment.

III. Tests Required

D. Reasonable Suspicion Testing
    In Notice 02-04, the FAA proposed to change the reasonable 
suspicion language to allow, but not require, an employer to have its 
supervisors make reasonable suspicion determinations and refer a 
contract employee for testing under the contractor's alcohol misuse 
prevention program. This change was proposed because there has been 
confusion about the reasonable suspicion testing of contract employees 
on an employer's premises.
    For the reasons discussed in the preamble to section V.E. of 
appendix I, the FAA has not adopted the proposed reasonable suspicion 
language.

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

    In Notice 02-04, the FAA proposed 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.'' The 
FAA has already made this change in a final rule published December 31, 
2003 (68 FR 75455).

VII. Implementing an Alcohol Misuse Prevention Program

    In Notice 02-04, the FAA proposed eliminating the requirement that 
each employer submit an Alcohol Misuse Prevention Program Certification 
Statement. As with the elimination of program approval under appendix 
I, each employer or contractor conducting alcohol testing will be 
required to either register with the FAA or obtain an Antidrug and 
Alcohol Misuse Prevention Program OpSpec, as specified in the 
regulation.
    Many of the comments on appendix I addressed this change in 
appendix J as well. For the reasons discussed under appendix I, we have 
also adopted this change for appendix J.
    In Notice 02-04, the FAA also proposed eliminating the 180 days 
allowed for new employers to ensure that their contractors are subject 
to an alcohol misuse prevention program. This provision provided a 
grace period that was important at the inception of the alcohol misuse 
prevention program regulations in 1994 because alcohol testing was a 
new regulatory requirement for employers and their contractors. 
However, since contractor programs must now be implemented by the time 
the contractor performs safety-sensitive functions for an employer, 
this grace period no longer applies and so the language is being 
removed.
    The FAA received one comment on the proposed elimination of the 
180-day timeframe. The commenter, DATIA, supported the proposed change. 
The FAA is adopting the elimination of the 180-day timeframe as 
proposed.
    As with appendix I, the FAA proposed two formats for the rule 
language in this section, one mostly in table format, the other in the 
format of the current rule. Several commenters supported the table 
format, and we are adopting it for the final rule.

Miscellaneous Comments

    The FAA received a number of comments that are outside the scope of 
the proposal. We have not addressed them in this final rule.

Paperwork Reduction Act

    This final rule contains information collection activities subject 
to the Paperwork Reduction Act (44 U.S.C. 3507(d)). In accordance with 
the Paperwork Reduction Act, documentation describing the information 
collection activities was submitted to the Office of Management and 
Budget (OMB) for review and approval, and assigned control number 2120-
0685.
    This rule constitutes a change to the data collection burden for 
existing and new companies required or electing to implement antidrug 
and alcohol misuse prevention programs. The respondents are part 121 
and 135 certificate holders, operators as defined in Sec.  135.1(c), 
air traffic control facilities not operated by the FAA or by or under 
contract to the U. S. military and part 145 certificate holders and 
non-certificated contractors that elect to obtain antidrug and alcohol 
misuse prevention programs. Part 121, 135 and 145 certificate holders 
will obtain an Operations Specification (OpSpec). Operators as defined 
in Sec.  135.1(c), air traffic control facilities not operated by the 
FAA or by or under contract to the U. S. military, and non-certificated 
contractors will register with the FAA.
    A protection provided by the Paperwork Reduction Act states that an 
agency may not conduct or sponsor and a person is not required to 
respond to a collection of information unless it displays a currently 
valid OMB control number. As stated above, the OMB control numbers is 
2120-0685.

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 regulations.

[[Page 1853]]

Executive Order 12866 and DOT Regulatory Policies and Procedures

    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. Sec. Sec.  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. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 
104-4) 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 annually (adjusted for inflation.)
    In conducting these analyses, FAA has determined this rule: (1) Has 
benefits that justify its costs, is not a ``significant regulatory 
action'' as defined in section 3(f) of Executive Order 12866, and is 
not ``significant'' as defined in DOT's Regulatory Policies and 
Procedures; (2) will not have a significant economic impact on a 
substantial number of small entities; (3) will not reduce barriers to 
international trade; and 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 is changing several sections of 14 CFR part 121, appendices 
I and J; not all of these changes will have cost implications. Some of 
the changes to appendix I parallel changes to appendix J; the analysis 
will combine the sectional changes where appropriate. Information 
related to the number of companies, the costs of tests, and the 
salaries of the employees can be found in the full regulatory 
evaluation, found in the docket.
    (1) The FAA is amending appendix I, section II, to ensure that 
employers test all employees, including contractor employees, unless 
the employees are in a testing program for a contractor to the 
employer; this change will 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, sightseer pilots, and part 
135 on-demand pilots, primarily single owner operators. The FAA 
believes that the number of moonlighting employees is small, but does 
not know exactly how many of these employees moonlight. Accordingly, 
the FAA will base costs on an additional 1 percent of these employees 
having additional drug tests.
    The FAA projects over 10 years, the total number of tests, due to 
the requirement that moonlighting employees be tested, will sum to 
11,100, costing $499,200. Costs for employee time for this testing will 
sum to $147,200 over 10 years. Total 10-year costs of testing these 
employees will sum to $646,300 (present value, $449,900).
    (2) The FAA is eliminating 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 will not compromise 
safety and will be a cost savings. Cost savings from the elimination of 
periodic drug testing, over ten years, sums to $122,300 (present value, 
$85,900).
    (3) The FAA will make several changes to section IX of appendix I 
and section VII of appendix J; two of these changes will have cost 
implications. Provisions that affect part 121, 135, and 145 certificate 
holders will be covered in section (3a); and operators as defined by 
Sec.  135.1(c), air traffic control facilities not operated by the FAA 
or by or under contract to the U.S. military, and non-certificated 
contractors in section (3b).
    (3a) Part 121, 135, and 145 certificate holders will no longer have 
to submit antidrug and alcohol misuse prevention programs to the FAA 
for approval. The FAA instead will track these certificate holders 
using the Operations Specifications Sub-System (OPSS). Using this 
system will 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 will 
incur additional costs from these rule changes. In the first year of 
this rule, these companies will have to file new information. New 
companies will have to do the same in their first year. When the number 
of employees at a company changes to fewer than 50 or greater than or 
equal to 50, they will have to send ``employment change reports.''
    The 7,240 existing plan holders currently submit 490 amendments 
each year. The FAA anticipates that 33 of these amendments will be 
employment change reports each year after their initial year. In 
addition, 484 companies submit new plans each year.
    Each of the existing plan holders will have to spend time to 
produce the required information, file and store it, and submit it to 
the FAA. Total first year costs will be $39,700. Subsequent year costs, 
which will encompass processing new plans, employment change reports, 
and amendments sum to $5,300. Ten-year costs, at the company level, 
equal $87,900 (present value, $69,700).
    At the FAA, the information being submitted to OPSS will have to be 
processed. First year costs will be $21,400, while each subsequent year 
cost will be about $2,900; costs over ten years sum to $47,400 (present 
value, $37,600).
    All companies will also incur some cost savings, for they will no 
longer have to file a combined drug plan and an alcohol certification 
statement to the FAA. Thus, each of the existing companies will no 
longer have to spend time to produce these plans and certification 
statements. Total first year cost savings will be $238,100. In 
subsequent years, new companies would have had to handle plans, while 
existing companies would have had to process amendments; total annual 
costs savings, from not having to file these amendments and new plans, 
sum to $18,400. Ten year cost savings, at the

[[Page 1854]]

company level, equal $406,000 (present value, $336,100).
    Ten year net cost savings sum to $270,700 (present value, 
$228,800).
    (3b) These rule changes also will 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 
certificate holders, a single registration statement requirement will 
suffice for both programs. In addition, the FAA will require 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 334 part 135.1(c) operators and 1,228 
contractors that will be affected by these rule changes; the 
contractors include 21 Air Traffic Control (ATC) contractors, and 1,207 
other contractors. The FAA does not expect any employment change 
reports from any of these companies.
    Each of the existing plan holders will have to spend time to 
produce the required information, file and store it, and submit it to 
the FAA. Total first year costs will be $11,000, while total annual 
costs for existing company amendments and new company plans sum to 
$1,500. Ten year costs equal $24,200 (present value, $19,200).
    At the FAA, first year costs will be $5,900, while each subsequent 
year cost will be about $800. Costs over ten years sum to $13,000 
(present value, $10,400).
    These companies will no longer have to file an alcohol 
certification statement and a drug plan, resulting in cost savings. 
Total first year cost savings will be $66,000, while total annual costs 
for the existing company amendments and new company plans sum to 
$5,400. Ten year cost savings equal $111,900 (present value, $92,700).
    Ten year net cost savings sum to $74,700 (present value, $63,200).
    Total cost for these rule changes sums to $178,600 (net present 
cost, $72,000). The total cost to the industry sums to $239,100 
(present value, $119,900) and total costs savings to the FAA sums to 
$60,400 (present value, $48,000).

Analysis of Benefits

    The FAA believes that these new rules can result in enhanced safety 
and concludes that several specific benefits will accrue from these 
rule changes.
    The specific changes to pre-employment testing will result in a 
number of benefits. The FAA believes that certain employers had 
misunderstood the current requirements and that the requirements will 
be better understood. This will reduce the number of pre-employment 
enforcement cases. From 2000 through 2002, the FAA initiated 197 legal 
enforcement cases dealing with pre-employment violations, or an average 
of 66 cases per year. The FAA believes that these changes can 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 a major 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 will reduce the number of mistakes by employers that can 
lead to employees not being pre-employment tested, the consequences 
including both potential safety impacts and enforcement actions for 
non-compliance.
    Companies no longer having to file antidrug plans and alcohol 
misuse prevention program certification statements will bring about 
some cost savings. In addition to the cost savings discussed above, 
each company will benefit from a reduction in the paperwork burden; the 
FAA will also realize these same benefits. These rule changes will 
increase consistency between appendices I and J, where possible. 
Elimination of unnecessary differences will 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 the regulations.

Comparison of Costs and Benefits

    This action will 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 antidrug plans and 
the alcohol misuse prevention program certification statements should 
make these programs more effective.
    These rules will result in a net cost of $178,600 (net present 
value, $72,000). The public will benefit from:

--Increased safety, by reducing the likelihood that a drug user will be 
employed in a safety-sensitive position due to clarified pre-employment 
requirements;
--Reduced paperwork, by companies no longer having to file an alcohol 
certification statement and a drug plan; and
--Enhanced program management, due to the elimination of unnecessary 
differences between appendices I and J. Accordingly, the FAA finds 
these requirements to be cost-beneficial.

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 agency determines that it will, the 
agency must prepare a regulatory flexibility analysis as described in 
the Act.
    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 RFA 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 has been unable to determine how 
many of the 2,412 part 145 repair stations are considered small 
entities, and so called for comments in Notice 02-04, but received 
none.
    The annualized cost of these rule changes to the industry is 
$17,100. The FAA is unable to isolate the cost savings to each industry 
group because some of the changes 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

[[Page 1855]]

were borne by only small part 121 air carriers, small part 135 air 
carriers, or applicable repair stations, the average cost per 
certificate holder would be $174, $8, or $7, respectively. If the cost 
savings were divided among all of these business entities, the average 
cost savings per entity would be $4 per entity. Consequently, the FAA 
certifies that the rule will not have a significant economic impact on 
a substantial number of these entities.

International Trade Impact Statement

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
establishing any standards or engaging in 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 final rule and 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) 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 an expenditure of $100 million or more (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 final rule 
does not contain such a mandate. The requirements of Title II do not 
apply.

Executive Order 13132, Federalism

    The FAA has analyzed this final rule under the principles and 
criteria of Executive Order 13132, Federalism. We determined that this 
action will not have a substantial direct effect on the States, on the 
relationship between the national Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. Therefore, we determined that this final rule does not have 
federalism implications.

Environmental Analysis

    FAA Order 1050.1D defines FAA actions that may be categorically 
excluded from preparation of a National Environmental Policy Act (NEPA) 
environmental impact statement. In accordance with FAA Order 1050.1D, 
appendix 4, paragraph 4(j), this rulemaking action qualifies for a 
categorical exclusion.

Regulations That Significantly Affect Energy Supply, Distribution, or 
Use

    The FAA has analyzed this final rule under Executive Order 13211, 
Actions Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use (May 18, 2001). We have determined that it is not 
a ``significant energy action'' under the executive order because it is 
not a ``significant regulatory action'' under Executive Order 12866, 
and it is not likely to have a significant adverse effect on the 
supply, distribution, or use of energy.

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 Amendment

0
In consideration of the foregoing, the Federal Aviation Administration 
amends part 121 of title 14, Code of Federal Regulations, as follows:

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

0
1. The authority citation for part 121 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 40113, 40119, 41706, 44101, 44701-
44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-
44904, 44912, 45101-45105, 46105, 46301.

0
2. Amend appendix I to part 121 as follows:
0
A. In section I., add new paragraphs D and E;
0
B. In section II., remove the definition of Contractor company; add new 
definitions for Contractor and Hire in alphabetic order; and revise the 
definitions of Employee and Employer;
0
C. Revise section III.;
0
D. In section V., revise paragraph A.; 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.;
0
E. In section VI., revise paragraph D.1;
0
F. In section VII., revise paragraph C.5;
0
G. Revise section IX; and
0
H. In section XIII., revise introductory text and paragraph B.
    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--Refusal to 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 a 
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

[[Page 1856]]

that contract employee is included under the contractor's FAA-
mandated antidrug program and is performing a safety-sensitive 
function on behalf of that contractor (i.e., within the scope of 
employment with the contractor.)
* * * * *
    Hire means retaining an individual for a safety-sensitive 
function as a paid employee, as a volunteer, or through barter or 
other form of compensation.
* * * * *
    III. Employees Who Must be Tested. Each employee, including any 
assistant, helper, or individual in a training status, who performs 
a safety-sensitive function listed in this section directly or by 
contract 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 includes full-time, part-time, temporary, 
and intermittent employees regardless of the degree of supervision. 
The safety-sensitive functions are:
    A. Flight crewmember duties.
    B. Flight attendant duties.
    C. Flight instruction duties.
    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 for a safety-sensitive 
function listed in section III of this appendix unless the employer 
first conducts a pre-employment test and receives a verified 
negative drug test result for that individual.
    2. No employer may allow an individual to transfer from a 
nonsafety-sensitive to a safety-sensitive function unless the 
employer first conducts a pre-employment test and 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 or 
transferring an individual into a safety-sensitive function if more 
than 180 days elapse between conducting the pre-employment test 
required by section V.A.1. or V.A.2. of this appendix and hiring or 
transferring the individual into a safety-sensitive function, 
resulting in that individual being brought under an FAA drug-testing 
program.
    4. If the following criteria are met, an employer is permitted 
to conduct a pre-employment test, and if such a test is conducted, 
the employer must receive a negative test result before putting the 
individual into a safety-sensitive function:
    (a) The individual previously performed a safety-sensitive 
function for the employer and the employer is not required to pre-
employment test the individual under section V.A.1. or V.A.2 of this 
appendix before putting the individual to work in a safety-sensitive 
function;
    (b) The employer removed the individual from the employer's 
random testing program conducted under this appendix for reasons 
other than a verified positive test result on an FAA-mandated drug 
test or a refusal to submit to such testing; and
    (c) The individual will be returning to the performance of a 
safety-sensitive function.
    5. Before hiring or transferring an individual to a safety-
sensitive function, the employer must advise each individual 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.4. 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 collection 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 collection site as soon as possible.
* * * * *
    D. Testing Based on Reasonable Cause. Each employer must 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 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, must substantiate and concur in the decision to test an 
employee who is reasonably suspected of drug use; except 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 must substantiate the decision to test an employee 
who is reasonably suspected of drug use.
* * * * *
    VI. Administrative and Other Matters.
* * * * *
    D. Refusal to Submit to Testing. 1. Each employer must notify 
the FAA within 5 working days of any employee who holds a 
certificate issued under part 61, part 63, or part 65 of this 
chapter who has refused to submit to a drug test required under this 
appendix. Send these notifications to: Federal Aviation 
Administration, Office of Aerospace Medicine, Drug Abatement 
Division (AAM-800), 800 Independence Avenue, SW, Washington, DC 
20591.
* * * * *
    VII. Medical Review Officer/Substance Abuse Professional, and 
Employer Responsibilities.
* * * * *
    C. Additional Medical Review Officer, Substance Abuse 
Professional, and Employer Responsibilities Regarding 14 CFR part 67 
Airman Medical Certificate Holders.
* * * * *
    5. Reports required under this section shall be forwarded to the 
Federal Air Surgeon, Federal Aviation Administration, Office of 
Aerospace Medicine, Attn: Drug Abatement Division (AAM-800), 800 
Independence Avenue, SW., Washington, DC 20591.
* * * * *
    IX. Implementing an Antidrug Program.
    A. Each company must meet the requirements of this appendix. Use 
the following chart to determine whether your company must obtain an 
Antidrug and Alcohol Misuse Prevention Program Operations 
Specification or whether you must register with the FAA:

------------------------------------------------------------------------
            If you are . . .                      You must . . .
------------------------------------------------------------------------
1. A part 121 or 135 certificate holder  Obtain an Antidrug and Alcohol
                                          Misuse Prevention Program
                                          Operations Specification by
                                          contacting your FAA Principal
                                          Operations Inspector.
2. A sightseeing operator as defined in  Register with the FAA, Office
 Sec.   135.1(c) of this chapter.         of Aerospace Medicine, Drug
                                          Abatement Division (AAM-810),
                                          800 Independence Avenue, SW,
                                          Washington, DC 20591 by March
                                          12, 2004.
3. An air traffic control facility not   Register with the FAA, Office
 operated by the FAA or by or under       of Aerospace Medicine, Drug
 contract to the U.S. Military.           Abatement Division (AAM-810),
                                          800 Independence Avenue, SW,
                                          Washington, DC 20591 by March
                                          12, 2004.
4. A part 145 certificate holder who     Obtain an Antidrug and Alcohol
 has your own antidrug program.           Misuse Prevention Program
                                          Operations Specification by
                                          contacting your Principal
                                          Maintenance Inspector.
5. A contractor who has your own         Register with the FAA, Office
 antidrug program.                        of Aerospace Medicine, Drug
                                          Abatement Division (AAM-810),
                                          800 Independence Avenue, SW,
                                          Washington, DC 20591 by March
                                          12, 2004.
------------------------------------------------------------------------


[[Page 1857]]

    B. Use the following chart for implementing an antidrug program 
if you are applying for a part 121 or 135 certificate, if you intend 
to begin sightseeing operations as defined in Sec.  135.1(c) of this 
chapter, or if you intend to begin air traffic control operations 
(not operated by the FAA or by or under contract to the U.S. 
military.) 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 chart follows:

------------------------------------------------------------------------
            If you are . . .                      You must . . .
------------------------------------------------------------------------
1. Apply for a part 121 certificate or   a. Have an Antidrug and Alcohol
 apply for a part 135 certificate.        Misuse Prevention Program
                                          Operations Specification,
                                         b. Implement an FAA antidrug
                                          program no later than the date
                                          you start operations, and
                                         c. Meet the requirements of
                                          this appendix.
2. Intend to begin sightseeing           a. Register with the FAA,
 operations as defined in Sec.            Office of Aerospace Medicine,
 135.1(c) of this chapter.                Drug Abatement Division (AAM-
                                          810), 800 Independence Avenue,
                                          SW, Washington, DC 20591 prior
                                          to starting operations,
                                         b. Implement an FAA antidrug
                                          program no later than the date
                                          you start operations, and
                                         c. Meet the requirements of
                                          this appendix.
3. Intend to begin air traffic control   a. Register with the FAA,
 operations (at an air traffic control    Office of Aerospace Medicine,
 facility not operated by the FAA or by   Drug Abatement Division (AAM-
 or under contract to the U.S.            810), 800 Independence Avenue,
 military).                               SW, Washington, DC 20591,
                                         b. Implement an FAA antidrug
                                          program no later than the date
                                          you start operations, and
                                         c. Meet the requirements of
                                          this appendix.
------------------------------------------------------------------------

    C. 1. If you are an individual or company that intends to 
provide safety-sensitive services by contract to a part 121 or 135 
certificate holder, a sightseeing operation 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, 
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. 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 operator as
                                          defined in Sec.   135.1(c) of
                                          this chapter, and
                                         iii. Meet the requirements of
                                          this appendix as if you were
                                          an employer.
b. Are a contractor (e.g., a security    i. Register with the FAA,
 company, a non-certificated repair       Office of Aerospace Medicine,
 station, a temporary employment          Drug Abatement Division (AAM-
 service company or any other             810), 800 Independence Avenue,
 individual or company that provides      SW, Washington, DC 20591,
 safety-sensitive services).             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,
                                          a sightseeing 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, and
                                         iii. Meet the requirements of
                                          this appendix as if you were
                                          an employer.
------------------------------------------------------------------------

    D. 1. To obtain an Antidrug and Alcohol Misuse Prevention 
Program Operations Specification, you must contact your FAA 
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 safety-sensitive employees, or 49 
or fewer safety-sensitive 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 FAA 
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.
    4. You must update the Antidrug and Alcohol Misuse Prevention 
Program Operations Specification when any changes to the information 
contained in the Operation Specification occur.
    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. 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 safety-sensitive 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; 
and, if you are a contractor, you intend to provide safety-sensitive 
functions by contract to a part 121 or part 135 certificate holder, 
a sightseeing 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.
    2. Send this information in the form and manner prescribed by 
the Administrator, in duplicate to: The Federal Aviation 
Administration, Office of Aerospace Medicine, Drug Abatement 
Division (AAM-

[[Page 1858]]

810), 800 Independence Avenue, SW., Washington, DC 20591.
    3. Update the registration information as changes occur. Send 
the updates in duplicate to the address specified in paragraph 2.
    4. This registration will satisfy the registration requirements 
for both your Antidrug Program under this appendix and your Alcohol 
Misuse Prevention Program under appendix J of this part.
* * * * *
    XIII. Waivers from 49 CFR 40.21. An employer subject to this 
part may petition the Drug Abatement Division, Office of Aerospace 
Medicine, for a waiver allowing the employer to stand down an 
employee following a report of a laboratory confirmed positive drug 
test or refusal, pending the outcome of the verification process.
* * * * *
    B. Each petition for a waiver must be submitted to the Federal 
Aviation Administration, Office of Aerospace Medicine, Drug 
Abatement Division (AAM-800), 800 Independence Avenue, SW., 
Washington, DC 20591.
* * * * *
0
3. In appendix J to part 121:
0
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.;
0
B. In section II., revise the introductory text of paragraph A.;
0
C. In section V., revise paragraphs C.3. and D.1.; and
0
D. 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 Federal 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

    A. Each employee, including any assistant, helper, or individual 
in a training status, who performs a safety-sensitive function 
listed in this section directly or by contract for an employer as 
defined in this appendix must be subject to alcohol testing under an 
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. The safety-sensitive functions are:
* * * * *

V. Consequences for Employees Engaging in Alcohol-Related Conduct

* * * * *

C. Notice to the Federal Air Surgeon

* * * * *
    3. All documents must be sent to the Federal Air Surgeon, 
Federal Aviation Administration, Office of Aerospace Medicine, Attn: 
Drug Abatement Division (AAM-800), 800 Independence Avenue, SW, 
Washington, DC 20591.
* * * * *

D. Notice of Refusals

    1. Except as provided in subparagraph 2 of this paragraph D, 
each employer shall notify the FAA within 5 working days of any 
covered employee who holds a certificate issued under 14 CFR part 
61, part 63, or part 65 who has refused to submit to an alcohol test 
required under this appendix. Notifications must be sent to: Federal 
Aviation Administration, Office of Aerospace Medicine, Drug 
Abatement Division (AAM-800), 800 Independence Avenue, SW, 
Washington, DC 20591.
* * * * *

VII. How To Implement an Alcohol Misuse Prevention Program

    A. Each company must meet the requirements of this appendix. Use 
the following chart to determine whether your company must obtain an 
Antidrug and Alcohol Misuse Prevention Program Operations 
Specification or whether you must register with the FAA:

------------------------------------------------------------------------
            If you are . . .                      You must . . .
------------------------------------------------------------------------
1. A part 121 or 135 certificate holder  Obtain an Antidrug and Alcohol
                                          Misuse Prevention Program
                                          Operations Specification by
                                          contacting your FAA Principal
                                          Operations Inspector.
2. A sightseeing operator as defined in  Register with the FAA, Office
 Sec.   135.1(c).                         of Aerospace Medicine, Drug
                                          Abatement Division (AAM-810),
                                          800 Independence Avenue, SW,
                                          Washington, DC 20591 by March
                                          12, 2004.
3. An air traffic control facility not   Register with the FAA, Office
 operated by the FAA or by or under       of Aerospace Medicine, Drug
 contract to the U.S. Military.           Abatement Division (AAM-810),
                                          800 Independence Avenue, SW,
                                          Washington, DC 20591 by March
                                          12, 2004.
4. A part 145 certificate holder who     Obtain an Antidrug and Alcohol
 has your own alcohol misuse prevention   Misuse Prevention Program
 program.                                 Operations Specification by
                                          contacting your FAA Principal
                                          Maintenance Inspector.
5. A contractor who has your own         Register with the FAA, Office
 alcohol misuse prevention program.       of Aerospace Medicine, Drug
                                          Abatement Division (AAM-810),
                                          800 Independence Avenue, SW,
                                          Washington, DC 20591 by March
                                          12, 2004.
------------------------------------------------------------------------

    B. Use the following chart for implementing an Alcohol Misuse 
Prevention Program if you are applying for a part 121 or 135 
certificate, if you intend to begin sightseeing operations as 
defined in Sec.  135.1(c) of this chapter, or if you intend to begin 
air traffic control operations (not operated by the FAA or by or 
under contract to the U.S. military.) 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

[[Page 1859]]

duties must be tested in accordance with this appendix. The chart 
follows:

------------------------------------------------------------------------
              If you . . .                        You must . . .
------------------------------------------------------------------------
1. Apply for a part 121 certificate or   a. Have an Antidrug and Alcohol
 apply for a part 135 certificate.        Misuse Prevention Operations
                                          Specification,
                                         b. Implement an FAA Alcohol
                                          Misuse Prevention Program no
                                          later than the date you start
                                          operations, and
                                         c. Meet the requirements of
                                          this appendix.
2. Intend to begin sightseeing           a. Register with the FAA,
 operations as defined in Sec.            Office of Aerospace Medicine,
 135.1(c) of this chapter..               Drug Abatement Division (AAM-
                                          810), 800 Independence Avenue,
                                          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. Meet the requirements of
                                          this appendix.
3. Intend to begin air traffic control   a. Register with the FAA,
 operations (at an air traffic control    Office of Aerospace Medicine,
 facility not operated by the FAA or by   Drug Abatement Division (AAM-
 or under contract to the U.S.            810), 800 Independence Avenue,
 military).                               SW, Washington, DC 20591,
                                         b.Implement an FAA Alcohol
                                          Misuse Prevention Program no
                                          later than the date you start
                                          operations, and
                                         c. Meet the requirements of
                                          this appendix.
------------------------------------------------------------------------

    C. 1. If you are an individual or a company that intends to 
provide safety-sensitive services by contract to a part 121 or 135 
certificate holder or a sightseeing operator 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 
Alcohol Misuse Prevention Program.
    2. 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 operator as
                                          defined in Sec.   135.1(c) of
                                          this chapter, and
                                         iii. Meet the requirements of
                                          this appendix as if you were
                                          an employer.
b. Are a contractor (e.g., a security    i. Register with the FAA,
 company, a noncertificated repair        Office of Aerospace Medicine,
 station, a temporary employment          Drug Abatement Division (AAM-
 service company or any other             810), 800 Independence Avenue,
 individual or company that provides      SW., Washington, DC 20591,
 safety-sensitive services).             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 operator as
                                          defined in Sec.   135.1(c) of
                                          this chapter, and
                                         iii. Meet the requirements of
                                          this appendix as if you were
                                          an employer.
------------------------------------------------------------------------

    D. 1. To obtain an Antidrug and Alcohol Misuse Prevention 
Program Operations Specification, you must contact your FAA 
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 FAA 
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.
    4. You must update the Antidrug and Alcohol Misuse Prevention 
Program Operations Specification when any changes to the information 
contained in the Operation Specification occur.
    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. 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 will comply 
with this appendix, appendix I of this part, and 49 CFR part 40; 
and, if you are a contractor, you intend to provide safety-sensitive 
functions by contract to a part 121 or part 135 certificate holder, 
a sightseeing operator as defined by 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.
    2. Send this information in the form and manner prescribed by 
the Administrator, in duplicate to: The Federal Aviation 
Administration, Office of Aerospace Medicine, Drug Abatement 
Division (AAM-810), 800 Independence Avenue, SW., Washington, DC 
20591.
    3. Update the registration information as changes occur. Send 
the updates in duplicate to the address specified in paragraph 2.
    4. This registration will satisfy the registration requirements 
for both your Antidrug Program under appendix I of this part and 
your Alcohol Misuse Prevention Program under this appendix.
* * * * *


[[Page 1860]]


    Issued in Washington, DC, on January 5, 2004.
Marion C. Blakey,
Administrator.
[FR Doc. 04-482 Filed 1-9-04; 8:45 am]
BILLING CODE 4910-13-P