[Federal Register Volume 59, Number 160 (Friday, August 19, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20237]
[[Page Unknown]]
[Federal Register: August 19, 1994]
_______________________________________________________________________
Part III
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Parts 65, 121, 135
Antidrug Program for Personnel Engaged in Specified Aviation
Activities; Final Rule
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration -
14 CFR Parts 65, 121, 135
[Docket Nos. 25148 and 26620; Admt. Nos. 65-38; 121-240; 135-51]
RIN 2120-AE82
Antidrug Program for Personnel Engaged in Specified Aviation
Activities
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Omnibus Transportation Employee Testing Act of 1991 (the
Act), amended the Federal Aviation Act of 1958 to provide a statutory
mandate for drug testing of air carrier employees. The Act also
prescribed certain consequences for prohibited drug use and mandated
the use of split specimen testing. This rule amends the antidrug rule
for conformity to the requirements of the Act.
In addition, this rule incorporates other changes to the antidrug
rule. These changes clarify the requirements of the rule and also
address concerns that have been raised since the rule was published.
Finally, this rule includes substantive changes to address
provisions of the rule that are unclear, do not comport with the
changes in the final DOT drug testing procedures, or do not adequately
address required steps in the implementation process.
EFFECTIVE DATE: This final rule is effective on September 19, 1994,
except the amendment to part 121, appendix I, VI.C. which is effective
August 15, 1994.
FOR FURTHER INFORMATION CONTACT: Ms. Julie B. Murdoch, Office of
Aviation Medicine, Drug Abatement Division (AAM-800), Federal Aviation
Administration, 400 7th Street SW., Washington, DC 20590; telephone
(202) 366-6710.
SUPPLEMENTARY INFORMATION:
Availability of Final Rule
Any person may obtain a copy of this final rule by submitting a
request to the Federal Aviation Administration, Office of Public
Affairs, Attn: Public Inquiry Center (APA-230), 800 Independence
Avenue, SW., Washington, DC 20591, or by calling (202) 267-3484.
Requests must include the amendment number identified in this final
rule.
Persons interested in being placed on a mailing list for future
rulemaking actions should request a copy of Advisory Circular 11-2A,
Notice of Proposed Rulemaking Distribution System, which describes the
application procedures.
Background
On November 14, 1988, the FAA issued an antidrug rule which
required specified aviation employers and operators to initiate
antidrug programs for personnel performing safety-sensitive functions.
On October 28, 1991, the Omnibus Transportation Employee Testing
Act of 1991 (the Act) was enacted. Among other things, the Act provided
a statutory mandate for drug testing in the aviation industry and
required specified consequences for positive drug tests. A notice of
proposed rulemaking (NPRM), published on February 15, 1994, proposed
amendments to certain provisions of the FAA's antidrug rule in
accordance with the Act. The NPRM also proposed certain other changes
to the antidrug rule that would clarify employer and Medical Review
Officer responsibilities and addressed other issues that have been
identified since the promulgation of the rule. This rule incorporates
the requirements of the statutory mandate, as well as the clarifying
amendments.
Seven comments were received in the docket in response to the NPRM.
These comments were taken into consideration during the development of
this final rule.
Reason for Expedited Effective Date
A section of this rule concerning split specimen testing is being
made effective in less than the 30 days from publication usually
required by law. With an effective date of August 15, 1994, for this
section the FAA can ensure that this rule is consistent with the DOT
final rule which was published on February 15, 1994 (59 FR 7354). The
DOT rule implements split specimen collection testing required by the
Omnibus Transportation Employee Testing Act of 1991, as of August 15,
1994, for four modal administrations under the DOT. The DOT rule
provided affected employers 6 months to begin implementing split
specimen testing. Because employers have been given prior notification
of the requirement for split specimen testing, employers subject to
this rule will not be unduly burdened by an effective date of less than
30 days. The FAA has therefore determined that good cause exists under
the provisions of 5 U.S.C. 533(d)(3) to warrant an expedited effective
date.
Discussion of Comments and Final Rule
This rulemaking action encompasses a variety of changes to the
FAA's antidrug regulation, most of which affect the operational
provisions of the antidrug rule found in 14 CFR part 121, appendix I.
Because a variety of changes, both substantive and minor technical
revisions, were made to appendix I, the entire revised appendix has
been republished in this final rule. Each of the significant changes
and any related comments are discussed in detail below.
Random Testing
This final rule does not change the random drug testing
requirements. The FAA notes, however, that a separate NPRM was jointly
issued by the Office of the Secretary of Transportation and all DOT
agencies with antidrug rules on February 15, 1994 (59 FR 7614). This
NPRM proposed parallel changes to each agency's rule under which the
random drug testing rate would be established based on the rate of
random positive drug tests in the particular industry. Because of the
common aspects of the random testing issues, the FAA will make any such
changes as part of a joint final rule to be issued in the near future.
Amendments Required by the Act
Prohibition on Service; Rehabilitation and Evaluation
The Omnibus Transportation Employee Testing Act section entitled
``Prohibition on service'' (found at new FAAct section 614(b)) provides
that no person who is determined to have engaged in illegal use of
drugs may perform a safety-sensitive function after such determination.
In accordance with this section, the FAA proposed that sections of the
FAA's regulations that address the use of prohibited drugs (see, e.g.,
14 CFR 65.46(c), (d)) would be revised slightly to reflect the fact
that entities other than certificate holders (i.e., contractor
companies) can require drug tests under the antidrug rule if they have
an FAA-approved antidrug program. The changes were supported by
commenters and are included in the final rule.
Section 614(b)(2) of the FAAct, ``Effect of Rehabilitation,''
states that no covered employee may perform a safety-sensitive function
after engaging in prohibited conduct unless he or she has completed a
rehabilitation program under the provisions of section 614(c) of the
FAAct. Section 614(c)(1) requires the Administrator to prescribe
regulations that at a minimum provide for the identification and
opportunity for treatment of employees in need of assistance in
resolving problems with the use of controlled substances. Further, the
section states that the Administrator shall determine the circumstances
under which such employees shall be required to participate in such a
program. This language recognizes that rehabilitation may not be
appropriate or warranted in all cases of prohibited conduct.
The legislative requirement of section 614(b)(2) is implemented in
the revisions to paragraph A, section VII, of appendix I. The
legislative history of the Act reflected the fact that the FAA did not
prescribe regulations with respect to specific types of rehabilitation
in its antidrug rule. However, because the Act requires the FAA to
prescribe regulations under which persons in need of assistance would
be identified, this final rule modifies the Medical Review Officer
(MRO) duties to include such identification. Some commenters noted that
a MRO may not be qualified as a substance abuse professional (SAP) and
should therefore be required to refer the individual to a qualified SAP
for the evaluation. It was the FAA's intent that only MROs who also
meet the qualifications of a SAP (as contained in the definition of a
SAP) would be authorized to perform the initial evaluation of
individuals who have a verified positive drug test result or refuse to
submit to a required test. The final rule has been changed to clarify
this requirement. It also incorporates a provision parallel to one in
the alcohol misuse prevention program final rule that limits the
providers or facilities to which SAPs who perform an initial evaluation
may refer an employee determined to be in need of assistance. This
limitation also applies to MROs who serve as SAPs.
The NPRM proposed, and this final rule provides, that each covered
employee who had a verified positive drug test result or who refused to
submit to testing would be advised of all relevant resources available
to the employee. Further, each such employee would be evaluated by a
SAP (who could be the MRO) who would determine whether and what
assistance the employee needed in resolving problems associated with
prohibited drug use. Some commenters representing labor organizations
stated that the FAA should include requirements that employers must
provide or pay for any required treatment and that employees should be
prohibited from terminating employees who are undergoing treatment. The
FAA reaffirms its position that these issues are most appropriately
matters for employer/employee negotiation.
New section 614(b)(3) of the FAAct, ``Performance of prior duties
prohibited,'' provides sanctions for employees who engage in prohibited
use of drugs. It provides that, under certain circumstances discussed
below, an individual shall not be permitted to perform the duties
related to air transportation that he or she performed prior to the
date he or she engaged in the prohibited drug use. The legislation does
not require that the individual's employment be terminated, nor that he
or she be reassigned to perform non-safety-sensitive functions.
However, it is an absolute bar to the performance of the same duties
the employee performed before the violation.
The final rule implements the provisions in the Act in two ways.
Appendix I has been revised by adding paragraph F to section VI to
preclude any person from performing the safety-sensitive function that
the individual was performing if that person had two verified positive
drug test results or if the individual used a prohibited drug while
performing such a safety-sensitive function. A definition of
``performing'' paralleling the one in the alcohol misuse prevention
program rule has been added. In order to effectively administer this
provision, the final rule provides that this prohibition is effective
for drug tests and on-duty drug use occurring after the effective date
of the final rule. (The NPRM proposed to amend the regulatory sections
to implement this prohibition. However, for clarity and consistency
with the alcohol misuse prevention program we are adding this provision
to appendix I.)
The bar is limited to the narrow prohibition in the Act and will
not affect the performance of other duties. While the FAA recognizes
that a narrow bar could lead to anomalous results (for example, a
person might be barred from performing screening duties but could serve
as a pilot), a bar that is limited to the statutory requirements is
more likely to be consistent with the requirements of the Americans
with Disabilities Act or other legal constraints. The FAA expects that
employers will exercise responsible judgment in determining whether
employees not expressly barred from service should be permitted to
perform other safety-sensitive duties.
The bar on two-time violators will apply both to persons who have
gone through rehabilitation and to those who, after evaluation, were
determined not to need treatment. Otherwise, an employee who was found
to need treatment and had an instance of recidivism would be subject to
the bar, but an employee who did not need assistance but simply chose
to use drugs again would not be. This provision is established under
the FAA's general statutory authority to prescribe regulations
affecting aviation safety.
Commenters representing labor organizations objected to the
permanent bar in principle, but recognized the FAA's statutory
requirement to impose such a bar. Commenters representing employers
objected to the FAA's implementation of the permanent bar in which the
burden of ensuring that permanently barred individuals do not perform
the relevant safety-sensitive duties is placed on employers. These
commenters assert that the FAA should maintain a name-specific ``black
list'' that employers could check to determine an applicant's status.
The FAA has not adopted this recommendation and believes that it would
be inappropriate to do so. Aside from the obvious privacy and
logistical issues associated with the creation of such a data base, it
would not serve the purpose asserted by the commenters, which appears
to be to relieve the employers of the necessity of obtaining
information regarding applicants' drug testing history. However, the
permanent bar is not the only measure precluding service in a safety-
sensitive function. In addition, if an individual has a verified
positive drug test result or has refused to submit to a drug test, the
employer cannot use the individual to perform any safety-sensitive
function unless and until the appropriate MRO or SAP evaluation and
return to duty requirements have been met. (A similar prohibition
applies under the alcohol misuse prevention program, 14 CFR part 121,
appendix J). Information regarding such unresolved violations can be
obtained only from the employee's records. In summary, the FAA does not
view the need to ensure that an applicant is not subject to the
permanent bar as materially different from the other requirements in
this employer-based, employer-implemented program.
The FAA has addressed one concern raised by commenters regarding
the availability of records from previous employers. The
confidentiality provisions have been revised to clarify that employers
are required to release employee antidrug program records upon written
consent of the employee. This revision precludes prior employers from
refusing to release records and thereby frustrating the intent of this
regulation. With respect to record retention, the FAA notes that the
retention periods provided in this rule are minimums and employers may
choose to retain any records for a longer period of time. Employers
should consider longer retention of information regarding verified
positive drug test results, refusals to submit to testing, evaluation,
and rehabilitation, if for no other reason than to ensure that an
individual previously terminated for violating the rule is not rehired
for and impermissibly returned to the performance of safety-sensitive
functions.
Commenters also expressed concern that employees be provided with
adequate notice of the implications of having a verified positive drug
test result or using drugs while performing a safety-sensitive
function. The FAA agrees that employees should be advised of the
consequences of such actions, and of the consequences of refusing to
submit to a required test (which, although it does not implicate the
permanent bar, does necessitate removal from safety-sensitive functions
and possible reporting to the FAA). The FAA has therefore revised the
employee assistance program provisions of appendix I to include a
requirement that the employer policy provide information on the
consequences under the antidrug rule of illegal use of drugs, verified
positive drug test results, and refusals to submit to testing. It
should be noted that an employer may advise employees of any
consequences imposed under the employer's independent authority (e.g.,
termination); however, the employer could not purport or imply that the
FAA's antidrug rule required such actions.
The permanent bar following a refusal to undertake or failure to
complete rehabilitation is further implemented by retaining the current
requirement that prior to returning to duty performing safety-sensitive
functions following a verified positive drug test result on an FAA-
mandated drug test or refusal to submit to such a drug test, the
employee must be evaluated by the MRO on the specific issue of
compliance with any previously-established treatment program. This rule
retains the provisions regarding MRO recommendations for return to
duty, with the modification that, based on the requirements of the Act,
the MRO cannot recommend return to duty if an individual has failed to
comply with a specified rehabilitation program. The FAA has chosen,
however, not to impose a definite time period during which the employee
must agree to undertake or complete the prescribed rehabilitation. This
allows for the denial phase that most people go through when first
confronted with evidence of a drug problem.
Split Specimen Testing
Split specimen testing, which is expressly required under the Act,
is a procedure under which an original urine specimen is divided into
two containers, each of which is sealed, labeled, and maintained
separately. If the primary specimen tests positive, the split or
secondary specimen can be tested to ensure that the confirmed positive
was not caused by error or tampering. In accordance with the
requirements of the Act, DOT has revised its procedural rule to require
split specimen testing for all drug testing performed under the
auspices of the FAA antidrug rule (and those of the Federal Highway
Administration, the Federal Railroad Administration, and the Federal
Transit Administration). Consistent with the provisions of the DOT
rule, this final rule provides that split specimen testing is in lieu
of the right to request a retest of the original specimen.
A number of commenters objected to the split specimen testing
requirement as unnecessary and unduly burdensome. These commenters
stated that split specimen provisions should not be included in the
final rule. The FAA is constrained by the requirements of the Act and
must provide for split specimen testing. All aviation entities with
FAA-approved antidrug programs must therefore ensure that they have
split specimen testing provisions in place by August 15, 1994,
including providing appropriate amendments to their antidrug program
plans to the FAA.
Both the Act and the DOT's revised rule provide that an employee is
entitled to split specimen testing if the employee requests such
testing within 3 days of receiving notice of the positive drug test
result, and this final rule incorporates an analogous provision. The
NPRM proposed that the request must be in writing. Commenters noted
that the requirement for a written request conflicts with the limited
time available during which to make the request to have a split
specimen tested. The FAA has deleted the proposed requirement that an
employee request the split specimen test in writing. The final rule
also revises the provision regarding MRO verification of the primary
specimen. The NPRM proposed that the MRO ``may'' proceed with
verification pending receipt of the split specimen test result.
Although this language was permissive, it was not the intent of the FAA
that verification could be delayed solely based on an employee's
request for a split specimen test. Rather, the provision was intended
to recognize that factors other than the request for the split specimen
analysis could affect the verification process. The final rule makes
the intent of the FAA explicit. Finally, the rule provides that no
employer or agency action is stayed during the request period or while
waiting for a split specimen test result.
Clarifying Amendments
Rule Language
The NPRM included a notice that in the final rule the FAA would
amend the antidrug rule to change the terms ``passing'' and ``failing''
a drug test. All of the DOT agencies that require drug testing,
including the FAA, have received reports of some confusion in their
respective industries regarding the use of the terms passing and
failing a drug test and how those terms relate to different drug test
results (i.e., confirmed or verified positive or negative test,
cancelled tests, etc.). The final rule changes these terms wherever
they are used throughout the antidrug rule to the more accurate
``verified positive'' or ``verified negative.''
Additionally, the revised appendix I published in this final rule
includes a number of minor editorial changes. For example, throughout
the antidrug rule the phrase ``functions specified in section III of
appendix I'' is used. This final rule replaces that phrase with the
term ``safety-sensitive function,'' which is defined accordingly.
Contract Air Traffic Control Facilities
As was noted in the preamble to the NPRM, when the FAA's final
antidrug rule was published in 1988, air traffic control (ATC)
facilities operated under contract with the FAA were explicitly
excluded from coverage under the rule. It was subsequently determined
that employees of contract ATC facilities would not be included in the
FAA's program for Federal employees and should be subject to the FAA's
rules for the aviation industry. This final rule changes the definition
of covered employers to include such facilities. The FAA's air traffic
control facilities and facilities operated by the military (whether
directly or by contract) are not affected by this change.
Air traffic control facilities, whether they are currently required
to perform testing by contract or not, should submit plans to the FAA
within 90 days after the rule's effective date, as required by
paragraph A.5., Section IX.
Refusal to Submit to Testing
The final antidrug rule included amendments to the airmen
certification sections of the FAA's regulations under which a refusal
to submit to testing could be the basis for a certificate action.
However, the rule did not have an express requirement for employers to
notify the FAA of refusals or a specific mechanism for providing such
notice. The NPRM proposed a reporting requirement that (paragraph E of
section VI of appendix I to part 121) would correct this gap in the
requirements of the rule. However, the proposal did not include a
specific time for notifications. The final rule specifies that
employers must notify the FAA of refusals to submit to required tests
within 5 working days. The final rule also clarifies that sanctions do
not attach to refusals to submit to either pre-employment or return to
duty tests since the redefinition of ``return to duty tests'' makes
such tests essentially voluntary. An individual who refuses to submit
to pre-employment or return to duty testing but then wishes to perform
a safety-sensitive function would have to subsequently agree to take
and have a verified negative drug test result on such a test. The
individual would then be subject to follow-up testing while performing
safety-sensitive functions, because the individual might have refused
based on recent drug use. The individual would not, however, be subject
to certificate action for declining what is essentially a test taken
voluntarily as a precondition to performing safety-sensitive duties.
Employees Covered By the Antidrug Rule
The final rule modifies the specified safety-sensitive duties
slightly to parallel the classes of covered functions in the FAA's new
alcohol misuse prevention program rule (14 CFR part 121, appendix J).
This modification is not intended to significantly change the antidrug
rule's coverage. The most significant changes are the elimination of
flight test and ground instruction duties. The former category is
eliminated because the FAA has determined that as a practical matter,
these duties are essentially subsumed in flight crewmember or flight
instructor duties. Ground instruction duties have been eliminated based
on the FAA's desire to reduce the burden of the antidrug rule on the
industry and the determination that individuals performing such duties
could be removed from the program without jeopardizing public safety.
Additionally, the categories of ``aviation screening duties'' and
``ground security coordinator duties'' have been established to clarify
the FAA's original intent with respect to covered security functions.
Although most commenters supported these changes, one commenter
believed that rather than specifying categories of safety-sensitive
duties, the rule should provide the Administrator with the discretion
to establish these categories without rulemaking. The FAA has not
adopted this recommendation. While flexibility might be desirable, the
FAA believes that it is essential that adequate notice and opportunity
for comment be given to individuals the FAA intends to subject to the
requirements of this rule. Publication of the safety-sensitive
functions as part of the final rule also ensures that affected
employees and employers have actual or constructive knowledge of the
requirements of the rule.
The FAA has previously received a petition for rulemaking on the
issue of the appropriate scope of covered employees under the antidrug
rule. Because the issues raised in the petition have been resolved in
this final rule, the FAA has closed this action. (Docket No. 26620)
Because the covered employee categories are being revised, we are
republishing with this final rule the Drug Testing Management
Information System (MIS) Data Collection Forms, which were published in
the Federal Register on December 23, 1993 (58 FR 68198), and became
effective on January 1, 1994. These forms provide the FAA with
additional data for use in monitoring the antidrug program and reflect
the changes in employees covered by the antidrug rule. There are no
other significant changes to the forms.
Pre-Employment Testing
The NPRM proposed to revise the antidrug rule's pre-employment
testing provision (paragraph A of section V of appendix I) to make the
provision less burdensome. When it was published in 1988, the antidrug
rule required pre-employment testing before an individual could be
hired to perform a function specified in appendix I. As interpreted by
the FAA, testing was required of individuals not currently employed by
the employer, of current employees moving from a non-covered to a
covered safety-sensitive function, and in circumstances where an
employee was removed from the random testing pool for any length of
time or was unavailable for testing for an extended period of time.
Individuals who had a verified positive drug test result or refused to
submit to an FAA-mandated drug test also had to pass a pre-employment
test prior to performing or returning to safety-sensitive duties.
The FAA continues to believe that pre-employment drug testing has
utility for those individuals who have not previously been subject to
the FAA-approved random drug testing program of an employer. However,
we have reassessed the need for pre-employment testing in other
situations, such as when an employee has been on leave of absence or
working outside the territory of the United States. The FAA believes,
and all of the commenters addressing this issue concur, that safety can
be maintained even if the requirement for pre-employment testing in
some circumstances is eliminated. Therefore, the FAA has revised its
antidrug rule to require pre-employment testing of an individual only
prior to the first time the individual performs a safety-sensitive
function for an employer. Such an individual must have a verified
negative drug test result on a pre-employment test prior to performing
a safety-sensitive function, and the employer could not permit the
individual to perform such a function until the employer receives the
verified negative pre-employment drug test result.
Employers would be permitted to require an employee to submit to
pre-employment testing in cases where an employee previously subject to
random testing by that employer has been removed from the random
testing pool for reasons other than a verified positive drug test
result on an FAA-mandated drug test or refusal to submit to such
testing.
Return to Duty and Follow-Up Testing
The 1988 final antidrug rule included the category of ``testing
after return to duty'' (former paragraph F, section V, appendix I).
Under this provision, individuals who had been hired to perform safety-
sensitive functions, or returned to the performance of safety-sensitive
functions after receiving a verified positive drug test result on or
refusing to submit to an FAA-mandated drug test, were subject to
unannounced testing. As noted above, the threshold test required before
returning to duty was characterized as a pre-employment test.
Commenters concurred with the FAA's assessment that the FAA's prior
use of the term ``return to duty'' testing has caused confusion in the
industry. The FAA also wishes to ensure consistency in terminology with
the alcohol misuse prevention program rule. For these reasons, the
antidrug rule has been revised to provide that an individual who had a
verified positive drug test result on a pre-employment test, or refused
a pre-employment test, must take another pre-employment test and obtain
a verified negative drug test result before performing safety-sensitive
duties and would then be subject to follow-up testing. An employee who
had a verified positive drug test result on another type of test or
refused to submit to another type of test (e.g., random) must take a
return to duty test and obtain a verified negative drug test result
before returning to the performance of safety-sensitive duties, and
would then be subject to follow-up testing. Like all FAA-mandated
tests, return to duty and follow-up tests must be performed in
accordance with the requirements of appendix I and the testing
procedures in 49 CFR part 40.
The FAA also proposed two other changes that would parallel the
provisions of the alcohol rule. The first proposed change was the
addition of a mandatory minimum of six follow-up drug tests during an
individual's first 12 months after being hired for or returning to the
performance of safety-sensitive functions after the individual has
refused to submit to or had a verified positive drug test result on an
FAA-mandated test. Commenters generally opposed this proposal,
believing the determination of the appropriate number of follow-up
tests should be a matter for the MRO's discretion. Based on these
comments, the FAA has revised the follow-up testing provision. As
revised, although follow-up testing is required for any person who
refuses to submit to or who has a verified positive drug test result on
an FAA-mandated drug test, a minimum of six tests over 12 months will
be required only for an individual who is determined in an evaluation
conducted under this rule to be in need of assistance in resolving
problems associated with illegal use of drugs. This modification
ensures that those employees most in need of monitoring will be subject
to at least a minimum number of tests over the first year after
returning to duty, the period during which recidivism is the most
likely to occur. The remaining employees would be tested at the MRO's
discretion.
The second change permits the employer to direct the individual to
undergo alcohol testing, as well as drug testing, if the Medical Review
Officer determines that such testing would be appropriate. No
commenters addressed this change, and the final rule includes this
provision as it was proposed.
Medical Review Officer Functions
The NPRM proposed to substantially revise section VII of appendix
I. First, changes in the DOT final rule (49 CFR part 40), which
establishes the duties of the MRO in the verification process, have
superseded the FAA's rule. Rather than reiterate the duplicative
provisions of the DOT rule, which are subject to change, the revised
MRO section cites to the applicable provisions of the DOT rule and
incorporates them (and therefore any future amendments) by reference.
The MRO duties have been revised to require the MRO to inquire
whether an individual holds a part 67 airman medical certificate, to
process requests for split specimen testing, and to evaluate or refer
the individual to a SAP for evaluation, as discussed previously. The
MRO's duties in the case of an employee or applicant who holds a part
67 airman medical certificate or who would be required to hold such a
certificate to perform a safety-sensitive function for an employer are
also specified. In response to comments, the requirements for
submission of the reports to the Federal Air Surgeon have been revised.
The final rule provides that an MRO has 10 working days following
verification of a positive drug test result in which to make a
determination regarding drug dependence. All documents pertaining to
the test result, verification, dependency, SAP evaluations, and return
to duty recommendations, if any, must be forwarded to the Federal Air
Surgeon within 12 working days of verifying the positive drug test
result.
The final rule also includes specific recordkeeping requirements
for the MRO. This change makes explicit the previously implicit
requirement that MROs maintain records necessary for accomplishing
their duties. While the records are created on behalf of and remain the
employers' records, the new recordkeeping section reflects the fact
that, of necessity, there are records that must be maintained by the
MRO if the MRO is to fulfill his or her regulatory role. The provision
regarding forwarding of MRO records has been revised slightly from the
NPRM to clarify that it is the employer's obligation to ensure that MRO
records are forwarded to a new MRO, even if the employer is obtaining
MRO services through a consortium. The change reflects the FAA's
position that records associated with a particular employer's antidrug
program remain the employer's records, even if the records are
maintained by the MRO and even if the employer does not contract
directly with the MRO. The FAA recognizes that a consortium may effect
the actual transfer of records; however, the consortium does so only as
an agent of the employers using its services to implement their
programs.
Antidrug Program Plan Submission
Several changes were proposed in this NPRM to the plan submission
provisions. First, the address to which plans and plan amendments must
be submitted has been changed to reflect the Drug Abatement Division's
current address. Second, the ``transition'' provisions of the rule for
new aviation employers (paragraph A., section IX) have been changed to
eliminate the substantial grace period previously provided. Commenters
supported the FAA's view that given the published guidance available
from the FAA and from private sector entities and the wealth of
material and experience now available, there is no longer a reason to
permit carriers to begin operations without having implemented an FAA-
approved antidrug program.
The FAA noted in the preamble to the final rule that the compliance
deadlines for new businesses might be accelerated in the future (53 FR
47043; November 21, 1988), and, accordingly, this final rule prohibits
covered employers from beginning operations without an approved
antidrug program. The program must be implemented, and all covered
employees subject to testing, not later than the inception of
operations. Any person hired by a new certificate holder to perform a
safety-sensitive function after the issuance of the certificate must
undergo pre-employment testing. Additionally, each new employer must
ensure that employees performing safety-sensitive functions by contract
are subject to an FAA-approved antidrug program within 60 days of the
implementation of the employer's program. This requirement will impose
no significant burden on new operators and any burden is outweighed by
the benefits gained by public safety.
Third, the consortium plan submission section has been revised to
require that each consortium program must provide for notification to
the FAA of changes in membership. Finally, a new provision (section IX,
paragraph A.6.) expressly states that covered employers must ensure
that they are continuously covered under an approved antidrug program.
This new section reflects the FAA's recognition of the fluid nature of
the aviation industry, in which locations, contracts, and even
corporate identities are subject to frequent changes.
Employees Located Outside the United States
As noted in the preamble to the NPRM, the original antidrug rule
published in 1988 applied to employees performing safety-sensitive
functions for the specified employers regardless of whether the
employees were located within the territory of the United States or
were located in a foreign country. In recognition of the international
implications of the rule, however, the effective date of the rule with
respect to employees located outside the territory of the United States
was deferred on a number of occasions. Significant practical and legal
concerns surrounding implementation of the antidrug rule outside the
territory of the United States remain and the FAA has substantially
revised the international section of the antidrug rule (section XII,
appendix I).
Consistent with the proposed rule, this final rule provides that no
employee located outside the territory of the United States shall be
tested for illegal use of drugs under the provisions of appendix I. To
ensure proper selection for random testing, an employer must remove
from the random testing pool any employee assigned to perform safety-
sensitive functions solely outside the territory of the United States,
since such an employee is not available for testing. The employee must
be returned to the random testing pool as soon as the employee once
more begins to perform functions wholly or partially within the
territory of the United States. As noted above, the employer has the
option of requiring the employee to undergo a pre-employment test prior
to returning to the performance of a safety-sensitive function within
the territory of the United States (and therefore to the random testing
pool). This section also provides that the provisions of appendix I do
not apply to employees performing safety-sensitive functions by
contract outside the territory of the United States.
Although most commenters supported this revision, one commenter
expressed concern that employees performing safety-sensitive functions
within the territory of the United States may be subject to random
testing at a disproportionately high rate if employees outside the
territory of the United States are excused from testing and that
employees taken out of the random testing pool may pose a safety risk.
The FAA is cognizant of concerns about safety and economic parity that
are raised by this exclusion. However, the FAA has determined that the
burdens associated with extraterritorial testing outweigh the possible
safety benefit. The FAA expects that employers will ensure that persons
performing safety-sensitive functions wholly or partially within the
territory of the United States remain subject to an effective random
testing program. Finally, employers concerned about drug use by
employees removed from the random testing pool may, as addressed above,
subject such employees to pre-employment testing prior to permitting
the employees to perform safety-sensitive functions within the
territory of the United States.
Paperwork Reduction Act Approval
The recordkeeping and reporting requirements of the final antidrug
rule, issued on November 14, 1988, were previously submitted to the
Office of Management and Budget (OMB) for approval in accordance with
the Paperwork Reduction Act of 1980. The OMB approval is under control
number 2120-0535. The recordkeeping and reporting requirements in this
amendment to the final rule were submitted to OMB during the NPRM stage
and approved under the same OMB#2120-0535. There have been no changes
to the paperwork or recordkeeping burden since the NPRM approval.
Federalism Implications
The amendments in this final rule will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, the FAA has determined that this
final rule does not have sufficient federalism implications to warrant
preparation of a Federalism Assessment.
Regulatory Evaluation Summary
The FAA has determined that this final rule is not a significant
regulatory action under Executive Order 12866. The Agency has prepared
a regulatory evaluation that analyzes the costs and benefits of this
final rule. The FAA does not expect that this rule will have a
significant economic effect on a substantial number of small entities
under the criteria of the Regulatory Flexibility Act.
A copy of the complete regulatory evaluation, regulatory
flexibility determination, and international trade assessment has been
placed in the docket. A copy may be obtained by contacting the office
identified under FOR FURTHER INFORMATION CONTACT.
International Trade Impact Analysis
The FAA finds that this rule will not have an adverse impact on
trade opportunities for either U.S. firms doing business overseas or
foreign firms doing business in the United States.
Significance
This rule is not likely to result in an annual effect on the
economy of $100 million or more, although it may result in a small
increase in costs for consumers, industry, or Federal, State, or local
agencies. The FAA has determined that the rule is not significant under
the Executive Order 12866 and the Regulatory Policies and Procedures of
the Department of Transportation (44 FR 11034; February 2, 1979).
List of Subjects
14 CFR Part 65
Aircraft, Airmen, Air safety, Air transportation, Aviation safety,
Drug abuse, Drugs, Narcotics, Safety, Transportation.
14 CFR Part 121
Air carriers, Aircraft, Aircraft pilots, Airmen, Airplanes, Air
transportation, Aviation safety, Drug abuse, Drugs, Narcotics, Pilots,
Safety, Transportation.
14 CFR Part 135
Air carriers, Aircraft, Aircraft pilots, Airmen, Airplanes, Air
taxi, Air transportation, Aviation safety, Drug abuse, Drugs,
Narcotics, Pilots, Safety, Transportation.
In consideration of the foregoing, the Federal Aviation
Administration is amending 14 CFR parts 65, 121, and 135 as follows:
PART 65--CERTIFICATION: AIRMEN OTHER THAN FLIGHT CREWMEMBERS
1. The authority citation for part 65 continues to read as follows:
Authority: 49 U.S.C. 1354(a), 1355, 1421, 1422, and 1427
(revised, Pub. L. 102-143, October 28, 1991); 49 U.S.C. 106(g)
(revised, Pub. L. 97-449, January 12, 1983).
2. Section 65.46 is amended by revising paragraphs (a)(2) and (d),
by removing paragraph (e), and redesignating paragraph (f) as paragraph
(e) to read as follows:
Sec. 65.46 Use of prohibited drugs.
(a) * * *
(2) An ``employer'' means an air traffic control facility not
operated by the FAA or by or under contract to the U.S. military that
employs a person to perform an air traffic control function.
* * * * *
(d) No employer shall knowingly use any person to perform, nor may
any person perform for an employer, either directly or by contract, any
air traffic control function if the person has a verified positive drug
test result on or has refused to submit to a drug test required by
appendix I to part 121 of this chapter and the person has not met the
requirements of appendix I to part 121 of this chapter for returning to
the performance of safety-sensitive duties.
* * * * *
PART 121--CERTIFICATION AND OPERATIONS: DOMESTIC, FLAG, AND
SUPPLEMENTAL AIR CARRIERS AND COMMERCIAL OPERATORS OF LARGE
AIRCRAFT
3. The authority citation for part 121 continues to read as
follows:
Authority: 49 U.S.C. 1354(a), 1355, 1356, 1357, 1401, 1421-1430,
1485, and 1502 (revised Pub. L. 102-143, October 28, 1991); 49
U.S.C. 106(g) (revised, Pub. L. 97-449, January 12, 1983).
4. Section 121.455 is amended by revising paragraph (c) and by
removing paragraph (d) to read as follows:
Sec. 121.455 Use of prohibited drugs.
* * * * *
(c) No certificate holder shall knowingly use any person to
perform, nor shall any person perform for a certificate holder, either
directly or by contract, any safety-sensitive function if the person
has a verified positive drug test result on or has refused to submit to
a drug test required by appendix I to part 121 of this chapter and the
person has not met the requirements of appendix I for returning to the
performance of safety-sensitive duties. -
5. Appendix I is revised to read as follows:
Appendix I to Part 121--Drug Testing Program
This appendix contains the standards and components that must be
included in an antidrug program required by this chapter.
I. DOT Procedures. Each employer shall ensure that drug testing
programs conducted pursuant to 14 CFR parts 65, 121, and 135 complies
with the requirements of this appendix and the ``Procedures for
Transportation Workplace Drug Testing Programs'' published by the
Department of Transportation (DOT) (49 CFR part 40). An employer may
not use or contract with any drug testing laboratory that is not
certified by the Department of Health and Human Services (DHHS)
pursuant to the DHHS ``Mandatory Guidelines for Federal Workplace Drug
Testing Programs'' (53 FR 11970; April 11, 1988 as amended by 59 FR
29908; June 9, 1994).
II. Definitions. For the purpose of this appendix, the following
definitions apply:
Accident means an occurrence associated with the operation of an
aircraft which takes place between the time any person boards the
aircraft with the intention of flight and all such persons have
disembarked, and in which any person suffers death or serious injury,
or in which the aircraft receives substantial damage.
Annualized rate for the purposes of unannounced testing of
employees based on random selection means the percentage of specimen
collection and testing of employees performing a safety-sensitive
function during a calendar year. The employer shall determine the
annualized rate by referring to the total number of employees
performing a safety-sensitive function for the employer at the
beginning of the calendar year.
Employee is a person who performs, either directly or by contract,
a safety-sensitive function for an employer, as defined below.
Provided, however, that an employee who works for an employer who holds
a part 135 certificate and who holds a part 121 certificate is
considered to be an employee of the part 121 certificate holder for the
purposes of this appendix.
Employer is a part 121 certificate holder, a part 135 certificate
holder, an operator as defined in Sec. 135.1(c) of this chapter, or an
air traffic control facility not operated by the FAA or by or under
contract to the U.S. military. Provided, however, that an employer may
use a person who is not included under that employer's drug program to
perform a safety-sensitive function, if that person is subject to the
requirements of another employer's FAA-approved antidrug program.
Performing (a safety-sensitive function): an employee is considered
to be performing a safety-sensitive function during any period in which
he or she is actually performing, ready to perform, or immediately
available to perform such function.
Prohibited drug means marijuana, cocaine, opiates, phencyclidine
(PCP), amphetamines, or a substance specified in Schedule I or Schedule
II of the Controlled Substances Act, 21 U.S.C. 811, 812, unless the
drug is being used as authorized by a legal prescription or other
exemption under Federal, state, or local law.
Refusal to submit means that an individual failed to provide a
urine sample as required in 49 CFR part 40, without a valid medical
explanation, after he or she has received notice of the requirement to
be tested in accordance with this appendix or engaged in conduct that
clearly obstructed the testing process.
Safety-sensitive function means a function listed in section III of
this appendix.
Substance abuse professional means a licensed physician (Medical
Doctor or Doctor of Osteopathy), or a licensed or certified
psychologist, social worker, employee assistance professional, or
addiction counselor (certified by the National Association of
Alcoholism and Drug Abuse Counselors Certification Commission), with
knowledge of and clinical experience in the diagnosis and treatment of
disorders related to drug use and abuse.
Verified negative drug test result means that the test result of a
urine sample collected and tested under this appendix has been verified
by a Medical Review Officer as negative in accordance with 49 CFR part
40.
Verified positive drug test result means that the test result of a
urine sample collected and tested under this appendix has been verified
by a Medical Review Officer as positive in accordance with 49 CFR part
40.
III. Employees Who Must Be Tested. Each person who performs a
safety-sensitive function directly or by contract for an employer must
be tested pursuant to an FAA-approved antidrug program conducted in
accordance with this appendix:
A. Flight crewmember duties.
B. Flight attendant duties.
C. Flight instruction duties.
D. Aircraft dispatcher duties.
E. Aircraft maintenance or preventive maintenance duties.
F. Ground security coordinator duties.
G. Aviation screening duties.
H. Air traffic control duties.
IV. Substances for Which Testing Must Be Conducted. Each employer
shall test each employee who performs a safety-sensitive function for
evidence of marijuana, cocaine, opiates, phencyclidine (PCP), and
amphetamines during each test required by section V of this appendix.
As part of a reasonable cause drug testing program established pursuant
to this part, employers may test for drugs in addition to those
specified in this part only with approval granted by the FAA under 49
CFR part 40 and for substances for which the Department of Health and
Human Services has established an approved testing protocol and
positive threshold.
V. Types of Drug Testing Required. Each employer shall conduct the
following types of testing in accordance with the procedures set forth
in this appendix and the DOT ``Procedures for Transportation Workplace
Drug Testing Programs'' (49 CFR part 40):
A. Pre-employment Testing.
1. Prior to the first time an individual performs a safety-
sensitive function for an employer, the employer shall require the
individual to undergo testing for prohibited drug use.
2. An employer is permitted to require pre-employment testing of an
individual if the following criteria are met:
(a) The individual previously performed a covered function for the
employer;
(b) The employer removed the individual from the employer's random
testing program conducted under this appendix for reasons other than a
verified positive test result on an FAA-mandated drug test or a refusal
to submit to such testing; and
(c) The individual will be returning to the performance of a
safety-sensitive function.
3. No employer shall allow an individual required to undergo pre-
employment testing under section V, paragraphs A.1 or A.2 of this
appendix to perform a safety-sensitive function unless the employer has
received a verified negative drug test result for the individual.
4. The employer shall advise each individual applying to perform a
safety-sensitive function at the time of application that the
individual will be required to undergo pre-employment testing to
determine the presence of marijuana, cocaine, opiates, phencyclidine
(PCP), and amphetamines, or a metabolite of those drugs in the
individual's system. The employer shall provide this same notification
to each individual required by the employer to undergo pre-employment
testing under section V, paragraph A.(2) of this appendix.
B. Periodic Testing. Each employee who performs a safety-sensitive
function for an employer and who is required to undergo a medical
examination under part 67 of this chapter shall submit to a periodic
drug test. The employee shall be tested for the presence of marijuana,
cocaine, opiates, phencyclidine (PCP), and amphetamines, or a
metabolite of those drugs during the first calendar year of
implementation of the employer's antidrug program. The tests shall be
conducted in conjunction with the first medical evaluation of the
employee or in accordance with an alternative method for collecting
periodic test specimens detailed in an employer's approved antidrug
program. An employer may discontinue periodic testing of its employees
after the first calendar year of implementation of the employer's
antidrug program when the employer has implemented an unannounced
testing program based on random selection of employees.
C. Random Testing. Each employer shall randomly select employees
who perform a safety-sensitive function for the employer for
unannounced drug testing. The employer shall randomly select employees
for unannounced testing for the presence of marijuana, cocaine,
opiates, phencyclidine (PCP), and amphetamines, or a metabolite of
those drugs in an employee's system using a random number table or a
computer-based, number generator that is matched with an employee's
social security number, payroll identification number, or any other
alternative method approved by the FAA.
(1) During the first 12 months following implementation of
unannounced testing based on random selection pursuant to this
appendix, an employer shall meet the following conditions:
(a) The unannounced testing based on random selection of employees
shall be spread reasonably throughout the 12-month period.
(b) The last collection of specimens for random testing during the
year shall be conducted at an annualized rate equal to not less than 50
percent of employees performing a safety-sensitive function.
(c) The total number of unannounced tests based on random selection
during the 12 months shall be equal to not less than 25 percent of the
employees performing a safety-sensitive function.
(2) Following the first 12 months, an employer shall achieve and
maintain an annualized rate equal to not less than 50 percent of
employees performing a safety-sensitive function.
D. Post-accident Testing. Each employer shall test each employee
who performs a safety-sensitive function for the presence of marijuana,
cocaine, opiates, phencyclidine (PCP), and amphetamines, or a
metabolite of those drugs in the employee's system if that employee's
performance either contributed to an accident or can not be completely
discounted as a contributing factor to the accident. The employee shall
be tested as soon as possible but not later than 32 hours after the
accident. The decision not to administer a test under this section must
be based on a determination, using the best information available at
the time of the determination, that the employee's performance could
not have contributed to the accident. The employee shall submit to
post-accident testing under this section.
E. Testing Based on Reasonable Cause. Each employer shall test each
employee who performs a safety-sensitive function and who is reasonably
suspected of using a prohibited drug. Each employer shall test an
employee's specimen for the presence of marijuana, cocaine, opiates,
phencyclidine (PCP), and amphetamines, or a metabolite of those drugs.
An employer may test an employee's specimen for the presence of other
prohibited drugs or drug metabolites only in accordance with this
appendix and the DOT ``Procedures for Transportation Workplace Drug
Testing Programs'' (49 CFR part 40). At least two of the employee's
supervisors, one of whom is trained in detection of the symptoms of
possible drug use, shall substantiate and concur in the decision to
test an employee who is reasonably suspected of drug use; provided,
however, that in the case of an employer other than a part 121
certificate holder who employs 50 or fewer employees who perform
safety-sensitive functions, one supervisor who is trained in detection
of symptoms of possible drug use shall substantiate the decision to
test an employee who is reasonably suspected of drug use. The decision
to test must be based on a reasonable and articulable belief that the
employee is using a prohibited drug on the basis of specific
contemporaneous physical, behavioral, or performance indicators of
probable drug use.
F. Return to Duty Testing. Each employer shall ensure that before
an individual is returned to duty to perform a safety-sensitive
function after refusing to submit to a drug test required by this
appendix or receiving a verified positive drug test result on a test
conducted under this appendix the individual shall undergo a drug test.
No employer shall allow an individual required to undergo return to
duty testing to perform a safety-sensitive function unless the employer
has received a verified negative drug test result for the individual.
G. Follow-up Testing. Each employer shall implement a reasonable
program of unannounced testing of each individual who has been hired to
perform or who has been returned to the performance of a safety-
sensitive function after refusing to submit to a drug test required by
this appendix or receiving a verified positive drug test result on a
test conducted under this appendix.
2. The number and frequency of such testing shall be determined by
the employer's Medical Review Officer. In the case of any individual
evaluated under this appendix and determined to be in need of
assistance in resolving problems associated with illegal use of drugs,
follow-up testing shall consist of at least six tests in the first 12
months following the employee's return to duty.
3. The employer may direct the employee to undergo testing for
alcohol, in addition to drugs, if the Medical Review Officer determines
that alcohol testing is necessary for the particular employee. Any such
alcohol testing shall be conducted in accordance with the provisions of
49 CFR part 40.
4. Follow-up testing shall not exceed 60 months after the date the
individual begins to perform or returns to the performance of a safety-
sensitive function. The Medical Review Officer may terminate the
requirement for follow-up testing at any time after the first six tests
have been conducted, if the Medical Review Officer determines that such
testing is no longer necessary.
VI. Administrative and Other Matters
A. Collection, Testing, and Rehabilitation Records. Each employer
shall maintain all records related to the collection process, including
all logbooks and certification statements, for two years. Each employer
shall maintain records of employee confirmed positive drug test
results, SAP evaluations, and employee rehabilitation for five years.
The employer shall maintain records of negative test results for 12
months. The employer shall permit the Administrator or the
Administrator's representative to examine these records.
B. Laboratory Inspections. The employer shall contract only with a
laboratory that permits pre-award inspections by the employer before
the laboratory is awarded a testing contract and unannounced
inspections, including examination of any and all records at any time
by the employer, the Administrator, or the Administrator's
representative.
C. Employee Request for Test of a Split Specimen. Not later than 72
hours after receipt of notice of a verified positive test result, an
employee may request that the MRO arrange for testing of the second,
``split'' specimen obtained during the collection of the primary
specimen that resulted in the confirmed positive test result.
2. The split specimen shall be tested in accordance with the
procedures in 49 CFR part 40.
3. The MRO shall not delay verification of the primary test result
following a request for a split specimen test unless such delay is
based on reasons other than the pendency of the split specimen test
result. If the primary test result is verified as positive, actions
required under this rule (e.g., notification to the Federal Air
Surgeon, removal from safety-sensitive position) are not stayed during
the 72-hour request period or pending receipt of the split specimen
test result.
D. Release of Drug Testing Information. An employer shall release
information regarding an employee's drug testing results, evaluation,
or rehabilitation to a third party in accordance with the specific,
written consent of the employee authorizing release of the information
to an identified person, to the National Transportation Safety Board as
part of an accident investigation upon written request or order, to the
FAA upon request, or as required by this appendix. Except as required
by law or this appendix, no employer shall release employee
information.
E. Refusal To Submit to Testing. Each employer shall notify the FAA
within 5 working days of any employee who holds a certificate issued
under part 61, part 63, or part 65 of this chapter who has refused to
submit to a drug test required under this appendix. Notification should
be sent to: Federal Aviation Administration, Aviation Standards
National Field Office, Airmen Certification Branch, AVN-460, P.O. Box
25082, Oklahoma City, OK 73125.
2. Employers are not required to notify the above office of
refusals to submit to pre-employment or return to duty testing.
F. Permanent Disqualification From Service. An employee who has
verified positive drug test results on two drug tests required by
appendix I to part 121 of this chapter and conducted after September
19, 1994 is permanently precluded from performing for an employer the
safety-sensitive duties the employee performed prior to the second drug
test.
2. An employee who has engaged in prohibited drug use during the
performance of a safety-sensitive function after September 19, 1994 is
permanently precluded from performing that safety-sensitive function
for an employer.
VII. Medical Review Officer/Substance Abuse Professional -
The employer shall designate or appoint a Medical Review Officer
(MRO) who shall be qualified in accordance with 49 CFR part 40 and
shall perform the functions set forth in 49 CFR part 40 and this
appendix. If the employer does not have a qualified individual on staff
to serve as MRO, the employer may contract for the provision of MRO
services as part of its drug testing program.
A. MRO and Substance Abuse Professional Duties. In addition to the
functions delineated in 49 CFR part 40, the MRO shall perform the
duties listed hereunder.
1. During the MRO's interview with an employee or applicant who has
had a confirmed positive drug test result, the MRO shall inquire, and
the individual must disclose, whether the individual holds an airman
medical certificate issued under part 67 of this chapter or, if an
applicant, would be required to hold such certificate in order to
perform the duties of the position for which the applicant is applying.
2. The MRO must process employee requests for testing of split
specimens in accordance with section VI, paragraph C, of this appendix.
3. The MRO shall advise each employee who receives a verified
positive drug test result on or refuses to submit to a drug test
required under this appendix of the resources available to the employee
in evaluating and resolving problems associated with illegal use of
drugs, including the names, addresses, and telephone numbers of
substance abuse professionals (SAP) and counseling and treatment
programs.
4. The MRO shall ensure that each employee who receives a verified
positive drug test result on or refuses to submit to a drug test
required under this appendix is evaluated by a SAP to determine if the
employee is in need of assistance in resolving problems associated with
illegal use of drugs. The MRO may perform this evaluation if the MRO is
qualified as a SAP.
5. Prior to recommending that an employee be returned to the
performance of a safety-sensitive function after the employee has
received a verified positive drug test result on or refused to submit
to a drug test required by this appendix, the MRO shall--
a. Ensure that an employee returning to the performance of a
safety-sensitive function has received a return to duty verified
negative drug test result on a test conducted under section V.,
paragraph F of this appendix;
b. Ensure that each employee has been evaluated in accordance with
section VII, paragraph A.4 of this appendix; and-
c. Ensure that the employee demonstrates compliance with any
rehabilitation program recommended following the evaluation required
under section VII, paragraph A.4 of this appendix.
6. Prior to recommending that an individual be hired to perform a
safety-sensitive function after such individual has received a verified
positive drug test result on a pre-employment test or has refused to
submit to a pre-employment drug test required by this appendix, the MRO
shall--
a. Ensure that an individual has received a verified negative drug
test result on a subsequent pre-employment test conducted under section
V, paragraph A, of this appendix;
b. Evaluate the individual (if the MRO is qualified to be a SAP),
or have the individual evaluated by a SAP, for drug use or abuse; and
c. Ensure that the individual has complied with the requirements of
any rehabilitation program in which the individual participated
following the verified positive pre-employment drug test result or the
refusal to submit to a pre-employment test.
7. The MRO shall not recommend that a person who fails to satisfy
the requirements in section VII, paragraph A.5 or A.6 of this appendix
be hired to perform or returned to duty to perform a safety-sensitive
function.
B. MRO Determinations. In the case of an employee or applicant who
holds an airman medical certificate issued under part 67 of this
chapter, or who is or would be required to hold such certificate in
order to perform a safety-sensitive function for an employer, the MRO
shall take the following actions after verifying a positive drug test
result.
1. In addition to the evaluation required in section VII, paragraph
A.4 of this appendix, the MRO shall make a determination of probable
drug dependence or nondependence as specified in part 67 of this
chapter within 10 working days of verifying the test result. If the MRO
is unable to make such a determination, he or she should so state in
the individual's records.
2. If the MRO determines that an individual is nondependent, the
MRO may recommend that the individual be returned to duty or hired to
perform safety-sensitive functions subject to the requirements of
section VII, paragraph A.5 of this appendix. If the MRO makes a
determination of probable drug dependence or cannot make a dependency
determination, the MRO shall not recommend that the individual be
returned to duty unless and until such individual has been found
nondependent by or has received a special issuance medical certificate
from the Federal Air Surgeon.
3. After making the determinations in section VII, paragraphs B.1
and B.2 of this appendix, the MRO must forward the names of such
individuals with identifying information, the determinations concerning
dependence, SAP evaluation (if available), return to duty
recommendations, and any supporting information to the Federal Air
Surgeon within 12 working days after verifying the positive drug test
result of such individuals.
4. All reports required under this section shall be forwarded to
the Federal Air Surgeon, Federal Aviation Administration, Attn: Drug
Abatement Division (AAM-800), 400 7th Street, SW., Washington, DC
20590.
C. MRO Records. Each MRO shall maintain records concerning drug
tests performed under this rule in accordance with the following
provisions:
1. All records shall be maintained in confidence and shall be
released only in accordance with the provisions of this rule and 49 CFR
part 40.
2. Records concerning drug tests confirmed positive by the
laboratory shall be maintained for 5 years. Such records include the
MRO copies of the custody and control form, medical interviews,
documentation of the basis for verifying as negative test results
confirmed as positive by the laboratory, any other documentation
concerning the MRO's verification process, and copies of dependency
determinations where applicable.
3. Records of confirmed negative test results shall be maintained
for 12 months.
4. All records maintained pursuant to this rule by each MRO are
subject to examination by the Administrator or the Administrator's
representative at any time.
5. Should the employer change MROs for any reason, the employer
shall ensure that the former MRO forwards all records maintained
pursuant to this rule to the new MRO within 10 working days of
receiving notice from the employer of the new MRO's name and address.
6. Any employer obtaining MRO services by contract, including a
contract through a consortium, shall ensure that the contract includes
a recordkeeping provision that is consistent with this paragraph,
including requirements for transferring records to a new MRO.
D. Evaluations and Referrals. Each employer shall ensure that a
substance abuse professional, including an MRO if he/she is qualified
as a substance abuse professional, who determines that a covered
employee requires assistance in resolving problems associated with
illegal use of drugs does not refer the employee to the substance abuse
professional's private practice or to a person or organization from
which the substance abuse professional receives remuneration or in
which the substance abuse professional has a financial interest. This
paragraph does not prohibit a substance abuse professional from
referring an employee for assistance provided through--
1. A public agency, such as a State, county, or municipality;
2. The employer or a person under contract to provide treatment for
drug problems on behalf of the employer;
3. The sole source of therapeutically appropriate treatment under
the employee's health insurance program; or
-4. The sole source of therapeutically appropriate treatment
reasonably accessible to the employee.
VIII. Employee Assistance Program (EAP)
The employer shall provide an EAP for employees. The employer may
establish the EAP as a part of its internal personnel services or the
employer may contract with an entity that will provide EAP services to
an employee. Each EAP must include education and training on drug use
for employees and training for supervisors making determinations for
testing of employees based on reasonable cause.
A. EAP Education Program. Each EAP education program must include
at least the following elements: display and distribution of
informational material; display and distribution of a community service
hot-line telephone number for employee assistance; and display and
distribution of the employer's policy regarding drug use in the
workplace. The employer's policy shall include information regarding
the consequences under the rule of using drugs while performing safety-
sensitive functions, receiving a verified positive drug test result, or
refusing to submit to a drug test required under the rule.
B. EAP Training Program. Each employer shall implement a reasonable
program of initial training for employees. The employee training
program must include at least the following elements: The effects and
consequences of drug use on personal health, safety, and work
environment; the manifestations and behavioral cues that may indicate
drug use and abuse; and documentation of training given to employees
and employer's supervisory personnel. The employer's supervisory
personnel who will determine when an employee is subject to testing
based on reasonable cause shall receive specific training on specific,
contemporaneous physical, behavioral, and performance indicators of
probable drug use in addition to the training specified above. The
employer shall ensure that supervisors who will make reasonable cause
determinations receive at least 60 minutes of initial training. The
employer shall implement a reasonable recurrent training program for
supervisory personnel making reasonable cause determinations during
subsequent years. The employer shall identify the employee and
supervisor EAP training in the employer's drug testing plan submitted
to the FAA for approval.
IX. Employer's Antidrug Program Plan
A. Schedule for Submission of Plans and Implementation. Each
employer shall submit an antidrug program plan to the Federal Aviation
Administration, Office of Aviation Medicine, Drug Abatement Division
(AAM-800), 400 7th Street, SW., Washington, DC 20590.
2. (a) Any person who applies for a certificate under the
provisions of part 121 or part 135 of this chapter after September 19,
1994 shall submit an antidrug program plan to the FAA for approval and
must obtain such approval prior to beginning operations under the
certificate. The program shall be implemented not later than the date
of inception of operations. Contractor employees to a new certificate
holder must be subject to an FAA-approved antidrug program within 60
days of the implementation of the employer's program.
(b) Any person who intends to begin sightseeing operations as an
operator under 14 CFR 135.1(c) after September 19, 1994 shall, not
later than 60 days prior to the proposed initiation of such operations,
submit an antidrug program plan to the FAA for approval. No operator
may begin conducting sightseeing flights prior to receipt of approval;
the program shall be implemented concurrently with the inception of
operations. Contractor employees to a new operator must be subject to
an FAA-approved program within 60 days of the implementation of the
employer's program.
(c) Any person who intends to begin air traffic control operations
as an employer as defined in 14 CFR 65.46(a)(2) (air traffic control
facilities not operated by the FAA or by or under contract to the U.S.
military) after September 19, 1994 shall, not later than 60 days prior
to the proposed initiation of such operations, submit an antidrug
program plan to the FAA for approval. No air traffic control facility
may begin conducting air traffic control operations prior to receipt of
approval; the program shall be implemented concurrently with the
inception of operations. Contractor employees to a new air traffic
control facility must be subject to an FAA-approved program within 60
days of the implementation of the facility's program.
3. In accordance with this appendix, an entity or individual that
holds a repair station certificate issued by the FAA pursuant to part
145 of this chapter and employs individuals who perform a safety-
sensitive function pursuant to a primary or direct contract with an
employer or an operator may submit an antidrug program plan (specifying
the procedures for complying with this appendix) to the FAA for
approval. Each certificated repair station shall implement its approved
antidrug program in accordance with its terms.
4. Any entity or individual whose employees perform safety-
sensitive functions pursuant to a contract with an employer (as defined
in section II of this appendix), and any consortium may submit an
antidrug program plan to the FAA for approval on a form and in a manner
prescribed by the Administrator.
(a) The plan shall specify the procedures that will be used to
comply with the requirements of this appendix.
(b) Each consortium program must provide for reporting changes in
consortium membership to the FAA within 10 working days of such
changes.
(c) Each contractor or consortium shall implement its antidrug
program in accordance with the terms of its approved plan.
5. Each air traffic control facility operating under contract to
the FAA shall submit an antidrug program plan to the FAA (specifying
the procedures for all testing required by this appendix) not later
than November 17, 1994. Each facility shall implement its antidrug
program not later than 60 days after approval of the program by the
FAA. Employees performing air traffic control duties by contract for
the air traffic control facility (i.e., not directly employed by the
facility) must be subject to an FAA-approved antidrug program within 60
days of implementation of the air traffic control facility's program.
6. Each employer, or contractor company that has submitted an
antidrug plan directly to the FAA, shall ensure that it is continuously
covered by an FAA-approved antidrug program, and shall obtain
appropriate approval from the FAA prior to changing problems (e.g.,
joining another carrier's program, joining a consortium, or
transferring to another consortium).
B. An employer's antidrug plan must specify the methods by which
the employer will comply with the testing requirements of this
appendix. The plan must provide the name and address of the laboratory
which has been selected by the employer for analysis of the specimens
collected during the employer's antidrug testing program.
C. An employer's antidrug plan must specify the procedures and
personnel the employer will use to ensure that a determination is made
as to the veracity of test results and possible legitimate explanations
for an employee receiving a verified positive drug test result.
D. The employer shall consider its antidrug program to be approved
by the Administrator, unless notified to the contrary by the FAA,
within 60 days after submission of the plan to the FAA.
X. Reporting of Antidrug Program Results
A. Annual reports of antidrug program results shall be submitted to
the FAA in the form and manner prescribed by the Administrator by March
15 of the succeeding calendar year for the prior calendar year (January
1 through December 31) in accordance with the provisions below.
1. Each part 121 certificate holder shall submit an annual report
each year.
2. Each entity conducting an antidrug program under an FAA-approved
antidrug plan, other than a part 121 certificate holder, that has 50 or
more employees performing a safety-sensitive function on January 1 of
any calendar year shall submit an annual report to the FAA for that
calendar year.
3. The Administrator reserves the right to require that aviation
employers not otherwise required to submit annual reports prepare and
submit such reports to the FAA. Employers that will be required to
submit annual reports under this provision will be notified in writing
by the FAA.
B. Each report shall be submitted in the form and manner prescribed
by the Administrator. No other form, including another DOT Operating
Administration's form, is acceptable for submission to the FAA.
C. Each report shall be signed by the employer's antidrug program
manager or other designated representative.
D. Each report with verified positive drug test results shall
include all of the following informational elements:
1. Number of covered employees by employee category.
2. Number of covered employees affected by the antidrug rule of
another operating administration identified and reported by number and
employee category.
3. Number of specimens collected by type of test and employee
category.
4. Number of positive drug test results verified by a Medical
Review Officer (MRO) by type of test, type of drug, and employee
category.
5. Number of negative drug test results reported by an MRO by type
of test and employee category.
6. Number of persons denied a safety-sensitive position based on a
verified positive pre-employment drug test result reported by an MRO.
7. Action taken following a verified positive drug test result(s),
by type of action.
8. Number of employees returned to duty during the reporting period
after having received a verified positive drug test result on or
refused to submit to a drug test required under the FAA rule.
9. Number of employees by employee category with tests verified
positive for multiple drugs by an MRO.
10. Number of employees who refused to submit to a drug test and
the action taken in response to the refusal(s).
11. Number of covered employees who have received required initial
training.
12. Number of supervisory personnel who have received required
initial training.
13. Number of supervisors who have received required recurrent
training.
E. Each report with only negative drug test results shall include
all of the following informational elements. (This report may only be
submitted by employers with no verified positive drug test results
during the reporting year.)
1. Number of covered employees by employee category.
2. Number of covered employees affected by the antidrug rule of
another operating administration identified and reported by number and
employee category.
3. Number of specimens collected by type of test and employee
category.
4. Number of negative tests reported by an MRO by type of test and
employee category.
5. Number of employees who refused to submit to a drug test and the
action taken in response to the refusal(s).
6. Number of employees returned to duty during the reporting period
after having received a verified positive drug test result on or
refused to submit to a drug test required under the FAA rule.
7. Number of covered employees who have received required initial
training.
8. Number of supervisory personnel who have received required
initial training.
9. Number of supervisors who have received required recurrent
training.
F. An FAA-approved consortium may prepare reports on behalf of
individual aviation employers for purposes of compliance with this
reporting requirement. However, the aviation employer shall sign and
submit such a report and shall remain responsible for ensuring the
accuracy and timeliness of each report prepared on its behalf by a
consortium.
XI. Preemption
A. The issuance of 14 CFR parts 65, 121, and 135 by the FAA
preempts any state or local law, rule, regulation, order, or standard
covering the subject matter of 14 CFR parts 65, 121, and 135, including
but not limited to, drug testing of aviation personnel performing
safety-sensitive functions.
B. The issuance of 14 CFR parts 65, 121, and 135 does not preempt
provisions of state criminal law that impose sanctions for reckless
conduct of an individual that leads to actual loss of life, injury, or
damage to property whether such provisions apply specifically to
aviation employees or generally to the public.
XII. Employees Located Outside the Territory of the United States
A. No individual shall undergo a drug test required under the
provisions of this appendix while located outside the territory of the
United States.
1. Each employee who is assigned to perform safety-sensitive
functions solely outside the territory of the United States shall be
removed from the random testing pool upon the inception of such
assignment.
2. Each covered employee who is removed from the random testing
pool under this paragraph A shall be returned to the random testing
pool when the employee resumes the performance of safety-sensitive
functions wholly or partially within the territory of the United
States.
B. The provisions of this appendix shall not apply to any person
who performs a function listed in section III of this appendix by
contract for an employer outside the territory of the United States.
PART 135--AIR TAXI OPERATORS AND COMMERCIAL OPERATORS
6. The authority citation for part 135 continues to read as
follows:
Authority: 49 U.S.C. 1354(a), 1355(a), 1421-1431, and 1502
(revised Pub. L. 102-143, October 28, 1991); 49 U.S.C. 106(g)
(revised Pub. L. 97-449, January 12, 1983).
7. Section 135.249 is amended by revising paragraph (c) and by
removing paragraph (d) to read as follows:
Sec. 135.249 Use of prohibited drugs.
* * * * *
(c) No certificate holder or operator shall knowingly use any
person to perform, nor shall any person perform for a certificate
holder or operator, either directly or by contract, any safety-
sensitive function if the person has a verified positive drug test
result on or has refused to submit to a drug test required by appendix
I to part 121 of this chapter and the person has not met the
requirements of appendix I to part 121 of this chapter for returning to
the performance of safety-sensitive duties.
Issued in Washington, DC, on August 12, 1994.
David R. Hinson,
Administrator.
Note: These exhibits will not appear in the Code of Federal
Regulations.
Exhibits--FAA Drug Testing Management Information System Data
Collection Forms
BILLING CODE 4910-13-P
TR19AU94.019
TR19AU94.020
TR19AU94.021
TR19AU94.022
TR19AU94.023
TR19AU94.024
TR19AU94.025
TR19AU94.026
TR19AU94.027
TR19AU94.028
TR19AU94.029
TR19AU94.030
TR19AU94.031
TR19AU94.032
TR19AU94.033
----- - ---------[FR Doc. 94-20237 Filed 8-15-94; 4:48 pm]
BILLING CODE 4910-13-C
