[Federal Register Volume 59, Number 31 (Tuesday, February 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2032]
[[Page Unknown]]
[Federal Register: February 15, 1994]
_______________________________________________________________________
Part IV
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Parts 61, et. al.
Alcohol Misuse Prevention Program and Antidrug Program for Personnel
and Employees of Foreign Air Carriers Engaged in Specified Aviation
Activities; Rule and Proposed Rules
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 61, 63, 65, 121, and 135
[Docket No. 27065; Amendment No. 61-94, 63-29, 65-37, 121-237, and 135-
48; Docket Nos. 24706; 26233; 26872]
RIN 2120-AE43
Alcohol Misuse Prevention Program for Personnel Engaged in
Specified Aviation Activities
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
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SUMMARY: This final rule prescribes regulations establishing the
aviation industry alcohol misuse prevention program. It includes
requirements for an alcohol testing program for air carrier employees
who perform safety-sensitive duties, in implementation of the FAA-
related provisions of the Omnibus Transportation Employee Testing Act
of 1991, which was enacted on October 28, 1991. Employees who perform
safety-sensitive duties directly or by contract for aviation employers
that hold a certificate issued under certain FAA regulations, operators
as defined in the regulations, or air traffic control facilities not
operated by the FAA or the U.S. military must be subject to an FAA-
mandated alcohol misuse prevention program (AMPP). This final rule
requires alcohol testing of these employees, proscribes certain
alcohol-related conduct, and establishes specified consequences for
engaging in alcohol misuse. Employers must provide written materials to
covered employees explaining the program and educating employees about
the dangers of alcohol misuse. Employers must also submit reports to
the FAA on the results of the program. This rule is intended to ensure
that public safety is maintained by preventing alcohol misuse by
safety-sensitive aviation employees.
DATES: This rule is effective on March 17, 1994.
FOR FURTHER INFORMATION CONTACT: 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 notice number of 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 December 15, 1992, the FAA published a notice of proposed
rulemaking (NPRM) in which it proposed to require air carriers to
institute alcohol misuse prevention programs similar to the antidrug
programs already in place (57 FR 59458). The NPRM was published as part
of a coordinated effort by the Office of the Secretary of
Transportation (OST) and four other DOT agencies to address the issue
of alcohol misuse in the transportation industries. With the exception
of the NPRM published by the Research and Special Programs
Administration, the rulemakings were initiated under the provisions of
the Omnibus Transportation Employee Testing Act of 1991 (Pub.L. 102-
143, Title V).
In conjunction with OST and the other DOT agencies, the FAA held a
series of public hearings on the regulations proposed in the NPRM. The
FAA-specific sections of each of these hearings were recorded by a
court reporter and the transcripts of the hearings with copies of any
material submitted to the hearing panel have been placed in the docket.
The testimony and written materials were considered in development of
this final rule.
Current Laws and Regulations
A variety of laws and regulations currently restrict the
consumption of alcohol by some aviation employees. Federal criminal law
prohibits any person from operating or directing the operation of a
common carrier while under the influence of alcohol. 18 U.S.C. 342. A
blood alcohol level of .10 percent is considered presumptive evidence
that the person is under the influence. 18 U.S.C. 343(1).
The FAA's regulations concerning alcohol misuse are supplemented
but not changed by this rule. Currently, under the FAA's rules, no
person may act or attempt to act as a crewmember of a civil aircraft
within 8 hours after consuming any alcoholic beverage, while under the
influence of alcohol, or while having 0.04 percent by weight or more of
alcohol in the blood. (14 CFR 91.17(a).) In limited circumstances, the
FAA's regulations require crewmembers to submit to alcohol tests
requested by State or local law enforcement officers and, upon request,
to furnish the results of such tests to the Administrator. (14 CFR
91.17(c).) Refusal to take a properly authorized law enforcement
alcohol test or to furnish the results can result in the denial,
revocation, or suspension of an airman certificate issued under part 61
or 63. (14 CFR 61.16 and 63.12a.)
Holders of or applicants for medical certificates issued under 14
CFR part 67 are subject to additional regulations regarding alcohol
use. First, a diagnosis of alcoholism is a disqualifying factor for a
medical certificate. A diagnosed alcoholic must be evaluated by the
Federal Air Surgeon and meet certain recovery criteria prior to
receiving a medical certificate. However, to facilitate recovery and to
prevent the unnecessary loss of skilled employees, a program
established by the FAA, the airline industry, and the pilots' unions
has enabled hundreds of alcoholic pilots to safely return to duty. The
program combines confrontation, therapy, and stringently monitored
aftercare.
Part 67 also provides that any individual who applies for a medical
certificate must permit access by the Administrator to information in
the National Driver Register concerning drug- and alcohol-related
driving offenses. (14 CFR 67.3.) If an individual has had two or more
such offenses within 3 years after the effective date of the rule, the
FAA may suspend or revoke a part 61 airman certificate held by the
individual or deny the individual's application for such certificate.
(14 CFR 61.15.)
Discussion of Comments and Final Rule
The Common Preamble
A common preamble to all of the related NPRMs proposing alcohol
testing rules was published on December 15, 1992 (57 FR 59382, et
seq.). This common preamble contained a thorough discussion of the
comments submitted to the DOT advance notice of proposed rulemaking
(ANPRM) published on November 2, 1989, and an overview of the general
issues related to alcohol use in the transportation industries. A
similar introductory discussion is found in the common preamble to this
final rule and the final alcohol misuse prevention rules published by
the other affected DOT agencies elsewhere in today's Federal Register.
The common preamble also responds to comments submitted to the various
DOT agency dockets that raise multimodal aspects of the final rules or
the Act. This common preamble is incorporated into this final rule by
reference. Because the majority of the issues raised in comments were
addressed in the common preamble, the FAA views comments addressed to
other DOT agencies as part of its docket, even though copies of those
comments are not physically stored with the other comments. Interested
persons can request access to those comments through the FAA docket.
Any aspects of the final rule that are not discussed below are
addressed in the common preamble.
Alcohol Misuse Prevention Program (AMPP)
The essential provisions of the AMPP proposed by the FAA in the
NPRM have remained largely unchanged in this final rule. The rule uses
three primary tools for reducing the threat of alcohol misuse in
aviation. First, by amending parts 65, 121, and 135, the rule prohibits
certain alcohol-related conduct by employees performing safety-
sensitive duties. Second, under the provisions of new appendix J to
part 121, such employees must be subject to pre-employment, random,
post-accident, reasonable suspicion, return to duty, and follow-up
alcohol testing. This testing is federally-mandated but will be
administered by the affected employers. Third, in accordance with
requirements in appendix J, employees subject to the rule must be
provided with materials designed to educate them about the provisions
of the rule and the consequences of engaging in alcohol misuse.
Other Requirements Imposed by Employers; Requirement for Notice
Only a few commenters addressed the issue of possible conflicts or
confusion regarding company-required programs and FAA-mandated
programs. These commenters (representing both labor and management)
focused on the issue of alcohol test results of 0.02 to 0.039. The
commenters noted that although the FAA's NPRM proposed specific actions
for test results falling within this range, an employer is not
precluded from taking severe employment action based on these results
should the employer so choose. A number of labor organizations wanted
the FAA to preclude such action in its final rule.
The FAA has not adopted these comments. The choice of whether to
continue to employ an individual should properly remain within the
discretion of the employer. We also note that employment or other
consequences outside those required by the rule may be subject to both
State law and labor-management negotiation.
With respect to the establishment of a separate company policy, a
number of commenters noted that companies already had alcohol testing
or prevention programs in place. These commenters stated that
established programs should suffice for compliance with the FAA's rule,
or that the FAA's rule would unnecessarily duplicate these programs.
The FAA recognizes that, as was the case when the antidrug rule was
first implemented, some employers might have programs that encompass
some or all of this rule's requirements. To ensure complete and uniform
compliance with a single regulatory standard, however, we are not
permitting company programs to substitute for programs required by this
rule. Should an aviation employer determine that, as a matter of
company policy, a different program should be implemented or continued,
the program must be clearly separate from the program required under
this rule, with appropriate notice given prior to tests under this
rule. The FAA will not permit commingling of employer-directed and FAA-
mandated programs.
Employers Required To Establish Programs
The NPRM reflected the FAA's best assessment, based on the
developments in the FAA's industry antidrug program, of the categories
of employers that should be subject to the alcohol misuse rule. Like
the antidrug rule, the FAA determined that the minimal benefit to
public safety that might accrue from inclusion of operators that did
not hold part 121 or part 135 certificates did not warrant the cost and
intrusiveness of alcohol testing. A few commenters addressed this issue
and requested additional relief for the small aviation employers we did
propose to cover. The FAA has assessed its requirements and has elected
to retain most of its regulatory provisions unchanged from the NPRM. We
have, however, reduced the reporting requirement burden, which will be
addressed below.
The final rule will include essentially the same classes of
employers as are covered by the anti-drug rule: 14 CFR part 121
certificate holders, 14 CFR part 135 certificate holders, sightseeing
operators who meet the criteria of 14 CFR 135.1(c), and air traffic
control (ATC) facilities not operated by the FAA or by or under
contract to the U.S. military will have to establish alcohol misuse
prevention programs. Companies with employees who perform safety-
sensitive functions by contract for these employers will be permitted
to establish and manage programs under this appendix. However, while a
contractor company that manages its own program will perform all of the
functions required of an ``employer'' in appendix J, the certificate
holders, operators, and ATC facilities will remain responsible for
ensuring that all covered employees who perform services for them are
subject to an FAA-mandated program.
Employees Subject to the Rule
The NPRM proposed to retain essentially the same coverage as the
antidrug rule. The covered categories included persons performing any
of the following duties: flight crewmember, flight attendant, flight
instruction, aircraft dispatch, aircraft maintenance, ground security
coordinator, aviation screening, and air traffic control. The category
of flight test personnel was not included because it was redundant. The
category of ground security coordinator duties was specified separately
to reflect the coverage intended by the term ``aviation security'' in
the antidrug rule.
In order to determine if any changes should be made in the
categories of covered employees, the FAA asked a number of questions in
the NPRM. The questions were intended to solicit comment on whether the
increased benefit to safety that could accrue by including other
functions would warrant the imposition of an alcohol testing
requirement on individuals performing those functions or if, consistent
with safety, categories of employees could be eliminated from the rule.
The comments on this issue ranged from those stating that since the
rule was unnecessary it should provide only the minimum coverage
required by the Act to a few comments stating that every aviation
employee who could even possibly affect safety should be subject to
alcohol testing. Most labor organizations favored the former approach.
A number of commenters supporting limited application of the rule
recommended that only maintenance personnel who actually return
aircraft to service should be covered by the rule. A few commenters
supported adding to the coverage proposed in the NPRM. These commenters
primarily identified refuelers and deicers as categories of employees
that should be subject to alcohol testing.
The FAA has chosen to retain the categories of covered employees
proposed in the NPRM. Although a system of checks and inspections does
exist to ensure that maintenance activities are properly performed, the
FAA has determined that it is essential that the individuals who
perform aircraft maintenance activities be subject to this rule. (The
term preventive maintenance has been added to maintenance not because
the FAA intends to increase the reach of the rule, but rather to ensure
that, as was intended in the NPRM, the rule clearly parallels the
coverage of the antidrug rule.)
The FAA carefully reviewed the comments supporting the inclusion of
additional categories of covered employees. For a number of reasons,
the FAA has elected not to adopt these recommendations. First, the FAA
is aware that the costs associated with this rule will be significant.
Each additional requirement that was considered was therefore
scrutinized with respect to the cumulative burden that would accrue.
Based on that consideration, the FAA has determined that the possible
marginal benefit that might be achieved by adding categories of covered
employees is outweighed by the burden associated with such a change.
Prohibited Alcohol-Related Conduct
This rule will prohibit specific alcohol-related conduct by covered
employees and will also prohibit an employer from using a covered
employee if the employer has actual knowledge that the employee has
engaged in such conduct. Each of the prohibitions has been carefully
tailored to minimize the restriction on the otherwise lawful use of
alcohol by covered employees. With the exception of use of alcohol
after an accident, each prohibition is limited to prohibiting alcohol
use that may affect the performance of covered functions. Some
commenters requested that the FAA list the specific actions within a
safety-sensitive function that trigger coverage under this rule. Given
the variety of tasks encompassed within each category and the
differences in the conduct of aviation operations by different
employers, however, a comprehensive regulatory listing of such
activities is not possible. Therefore, as was proposed in the NPRM,
coverage under the rule will be determined by the employer based on the
requirements of the FAA's regulations and the employer's experience and
knowledge of the employees' duties.
The identification of the activities that will subject employees to
this rule shall be included in the company policy required under
appendix J and are subject to FAA review.
The specific prohibitions are:
Alcohol Concentration: The OST common preamble contains a detailed
discussion of the prohibited alcohol concentrations and a disposition
to the comments regarding this issue. It should be noted however, that
although this rule will contain a bifurcated system of test results and
consequences (0.02-0.039 and 0.04 or greater) the rule will not affect
the current regulatory provision in 14 CFR 91.17 under which
crewmembers are subject to sanction by the FAA for having a blood
alcohol concentration of 0.04% or greater.
Performance of covered functions while under the influence of
alcohol: As noted above, the FAA's current regulations prohibit any
person from acting or attempting to act as a crewmember while under the
influence of alcohol. While the FAA's experience in enforcing this
provision indicates that it is a useful tool in preventing alcohol
misuse, it has been determined that such a prohibition in the context
of an employer-based program, with no intervention by a Federal agency
or right to review, could lead to unacceptable treatment of employees.
This provision has therefore been removed as a violation of the rule.
The concept of ``under the influence'' remains present in this
final rule, however, as part of the reasonable suspicion testing
requirement. Under the final rule, if an employer were to determine
that sufficient evidence existed to believe that a covered employee was
under the influence of alcohol, the employer would be required to
administer a reasonable suspicion test. If no test could be performed,
safety would still be protected because the employee must be removed
from performing safety-sensitive duties temporarily.
This rule does not limit the employer's authority to remove the
employee from the performance of safety-sensitive duties if the
employer believed, notwithstanding an alcohol test result of less than
0.04 or no test at all, that the employee was impaired. As noted
previously, the employer must remove the employee, at least
temporarily, if the employee's alcohol concentration was 0.02 or
greater but less than 0.04 or if no test could be performed. However,
any action other than a temporary removal in either the absence of a
test result or with a test result under 0.04 would have to be under the
employer's independent authority.
On-duty use: A number of commenters expressed concern that the
FAA's proposed definition of ``performing safety-sensitive functions''
could result in the application of the on-duty use prohibition to
employees who might be at home on reserve status for days at a time.
Given the dramatic effect of a violation of this provision (i.e., it
invokes the permanent bar addressed below), these commenters requested
clarification of this provision.
This provision applies to any covered employee who, while not
actually performing a safety-sensitive function, could be called at any
time to perform. The FAA intends the provision to reach only employees
who are at work. Affected employees include, for example, a maintenance
supervisor who is in her office who could be called at any time to take
over on a maintenance task. Such employees would have to refrain from
using alcohol or would be in violation of the on-duty use provision.
On-call or reserve employees who are not at work, such as those
mentioned above, will, however, be subject to the prohibitions on pre-
duty use of alcohol.
Additionally, the rule should not be read as permitting on-duty use
to be presumed from an alcohol concentration above the prohibited
levels. This would of necessity require the application of back
extrapolation to the results, which, as analyzed in detail in the
common preamble, is not permitted. To assert a violation of this
provision, the employer would have to have clear evidence of
consumption of alcohol by a safety-sensitive employee (e.g., an
admission, credible witnesses). One important aspect of the prohibition
is that it is triggered by the consumption of items other than
alcoholic beverages. Use of a medication containing alcohol while on
duty will violate this rule and will trigger the permanent bar
provisions discussed below. The FAA encourages employers and labor
organizations to take appropriate steps to warn affected employees of
this prohibition.
Pre-duty use: As was proposed in the NPRM, this rule provides a
two-tiered prohibition with respect to pre-duty use of alcohol. No
commenter opposed prohibiting alcohol use by a crewmember prior to
duty, and many commenters wanted the prohibition extended to up to 24
hours before a flight. As noted above, the FAA already prohibits any
person from acting or attempting to act as a crewmember within 8 hours
after the consumption of any alcoholic beverage. This prohibition was
based on a determination by the FAA that a specified period of
abstinence would decrease the likelihood that an individual would be
impaired by alcohol while acting as a crewmember. The FAA is aware that
individuals who drink to excess may still be impaired even after
abstaining for 8 hours; however, the 8-hour rule establishes an
adequate behavioral limitation for the majority of persons who are not
heavy drinkers. The FAA has determined that the 8-hour limit remains
appropriate for crewmembers. Additionally, in order to ensure
consistency between the prohibitions affecting FAA and other air
traffic controllers, the pre-duty use period for these employees has
been changed to 8 hours.
Although with respect to crewmembers, this provision does, to some
extent, duplicate the restrictions in 14 CFR 91.17(a), it is limited in
application to the covered employees of the specified employers under
the rule. The rule also prohibits the employers from using covered
employees who have impermissibly used alcohol--a restriction on
employers that does not currently exist in the FAA's regulations.
A number of commenters objected to the FAA proposal to add a 4-hour
pre-duty use limitation for other classes of covered employees. Some
commenters believed that imposition of a 4-hour rule on all covered
employees would have little safety benefit while intruding
significantly into the lives of employees. The FAA agrees that the
nature of the safety-sensitive functions other than crewmember duties
is sufficiently different that an 8-hour limitation on pre-duty use of
alcohol for those classes could constitute an unwarranted intrusion by
the Federal government into the off-duty lives of aviation industry
employees. The FAA continues to believe, however, that the minimal
disruption that might be caused by a 4-hour limitation is outweighed by
the safety benefit that is achieved by moderating the use of alcohol by
safety-sensitive employees before they perform their duties.
The FAA is also not adopting a suggestion made in the public
hearings regarding other DOT agencies' rules under which employees
subject to short notice calls to work would have to abstain from
consuming alcohol for 4 hours prior to duty or after being called to
duty, whichever is shortest. The FAA does not believe that in the
context of the aviation industry there is any situation in which the
need for the employee to perform safety-sensitive functions is so
exigent that a 4- or 8-hour limitation should be waived.
Use following an accident: As proposed in the NPRM, a covered
employee with actual knowledge of an accident involving an aircraft for
which he or she performed a safety-sensitive function at or near the
time of the accident would be required to refrain from using alcohol
for 8 hours unless the employee had been given a post-accident test or
the employer had determined that the employee's performance could not
have contributed to the accident. The restriction on use, as proposed,
would primarily affect those employees whose performance of duties just
around the time of the accident may have contributed to the accident
and whose consumption of alcohol prior to the time of the accident
would be relevant information.
A number of commenters questioned the FAA's ability to enforce this
provision and the employees' ability to comply. Some commenters stated
that it was unfair of the FAA to consider denying individuals who had
been traumatized by an accident the relief that a drink might provide.
The FAA recognizes that the rule might be difficult to enforce, and we
encourage employers to attempt to control the actions of the affected
employees as circumstances permit. The final rule also includes, as in
the NPRM, an actual notice requirement so that employees who are
unaware of an accident or who do not realize that their performance of
duties may be implicated are not held to have violated the rule if,
unknowingly, they use alcohol during the post-accident period. The FAA
notes that the prohibition only applies if an employee performed a
safety-sensitive function on the aircraft involved in an accident at or
near the time of the accident. The rule does not, for example, affect
individuals who performed maintenance on the aircraft days or weeks
prior to the accident.
Despite the potential difficulties associated with this provision,
however, and the commonly accepted practice of using alcohol to handle
stressful situations, the prohibition is necessary to ensure that use
of alcohol before an accident is not masked by allegedly post-accident
consumption of alcohol.
Refusal To Submit to a Required Alcohol Test
A number of commenters objected to the FAA's proposal to treat
refusal to submit to random, post-accident, reasonable suspicion, or
follow-up testing as a rule violation (as discussed in the common
preamble), or as a potential basis for the denial, suspension, or
revocation of a certificate issued under 14 CFR part 61, 63, or 65. A
few of these commenters stated that because alcohol testing was
unconstitutional there should be no sanction attached to refusing to be
tested. The Constitutional aspects of this rule are addressed in the
common preamble.
A number of labor groups expressed concern that employees who were
subjected to harassing tests or who became aware that proper procedures
were not being followed (e.g., the breath alcohol technician (BAT)
reuses a mouthpiece) would be placed in the position of having to
submit to questionable tests or face possibly severe sanctions. As with
any potentially problematic test, the employee will have to determine
whether to proceed with the test or to decline. It would then be for
the employer in either situation to evaluate the facts, review the
provisions of this rule and in 49 CFR part 40, and make a decision on
the validity of the test or the legitimacy of the employee's asserted
bases for declining the test. The FAA would have to similarly evaluate
all of the available information if the FAA considers taking action in
the case of an alleged refusal. As a practical matter, these situations
can be avoided if each employer ensures that its supervisors and BATs
are thoroughly trained and if a knowledgeable employer representative
is available to respond quickly to concerns raised during the course of
an alcohol test.
No commenter objected to the FAA's decision not to attach any
consequences other than preclusion from performing a safety-sensitive
function to an individual's choice not to submit to pre-employment or
return to duty testing. These provisions are consistent with the FAA's
choice in the antidrug rule not to base certificate action on refusals
of pre-employment drug tests, and therefore, these provisions remain
unchanged.
Required Alcohol Testing
The common preamble discusses in detail the types of alcohol tests
that are required under this rule and those of the other DOT agencies.
There are, however, certain aspects of alcohol testing raised by the
commenters that are specific to the aviation industry. Those issues are
addressed below.
Pre-employment testing: As discussed more fully in the common
preamble, the nomenclature used to describe this type of test has been
changed from ``pre-employment/pre-duty,'' as used in the NPRM, to
simply ``pre-employment.'' It should be noted that this change is not
intended to affect the substantive requirements for this type of
testing, or to imply that the testing must occur prior to hiring an
individual. As was proposed in the NPRM, under this final rule
employers may conduct pre-employment testing at any time prior to the
first time the individual is used to perform (i.e., is ``employed'' in)
a safety-sensitive function. An individual may be tested prior to
completion of the hiring process; after he or she has been hired for a
safety-sensitive position but before actual commencement of duties; or,
in the case of a current employee, prior to transferring the employee
from performing non-safety-sensitive duties to performing safety-
sensitive duties.
In the NPRM, the FAA requested specific comment on whether the
proposed procedure for using the results of prior pre-employment
alcohol tests would be useful. The majority of commenters did not feel
that the provision should be retained. Labor groups were concerned that
the confidentiality of information regarding employees' past alcohol
use would be breached by this provision. Many employers expressed
concern about the possibility of liability if they released the
results, even in response to a specific employee consent. One commenter
recommended that the FAA develop a standard consent form to be used for
release of alcohol misuse information from an employer to any third
party. Finally, some commenters stated that even if the use of prior
test results was authorized, they would not use the option. They saw
little utility in the option or expressed reservations about relying on
tests the quality of which the employer could not ensure.
Although the FAA recognizes that few employers may choose to use
the option of relying on an applicant's prior test results, the FAA has
elected to retain this option. The difficulties, if any, associated
with choosing this option would be one accepted voluntarily by the
employer who so chooses. Further, the FAA notes that even in the
absence of such a provision, a prospective employer could still seek
information regarding the past performance of an applicant. The FAA has
not adopted the recommendation to prepare a standard consent form for
use in this or any other disclosure situation. The rule does contain
specific language regarding the content of the consent; the FAA
expresses no preference as to the format of the document.
Finally, one commenter stated that the pre-employment testing
provision did not meet the requirements of the Act because it does not
require testing for use of alcohol in violation of law or Federal
regulation. While a strict reading of the Act may indicate that this
commenter is correct, upon review of the legislative history of the
Act, the FAA believes that the pre-employment testing provision in this
rule meets the intent of Congress.
Post-accident testing: The NPRM proposed that post-accident alcohol
testing would be essentially the same as in the antidrug rule. The
triggering event would be an aircraft accident (as specifically defined
in the rule) and the employees subject to testing would be the same--
covered employees whose performance of safety-sensitive functions
either contributed to an accident or cannot be completely discounted as
a contributing factor.
Although commenters generally supported the concept of post-
accident testing, some were concerned about the practical difficulties
associated with determining which employees to test and ensuring the
tests are performed in the very short and usually extremely hectic
period just following an accident. Some commenters specifically cited
the difficulty faced in determining if persons performing maintenance
may have contributed to the accident and problems associated with
reaching the remote locations in which aircraft accidents can occur.
These same concerns have arisen in the context of post-accident
drug testing. With respect to identifying employees to test, both rules
provide that the decisions must be based on the best available
information. Although the purpose of a post-accident alcohol test is to
identify individuals who should be removed from safety-sensitive
duties, the focus of a post-accident alcohol test is evidence of
alcohol use that may have affected the performance of safety-sensitive
functions that contributed to the accident. Test subjects should be
restricted to those for whom an alcohol test conducted after an
accident would be relevant to whether the individual possibly
contributed to the accident as a result of impermissibly using alcohol.
A number of commenters also questioned the requirement that
individuals who may be subject to post-accident testing must, with
limited exceptions, remain at the scene of the accident. These
commenters noted that an aircraft accident is always an extremely
traumatic event for the crewmembers involved and it would be unduly
harsh to prevent these crewmembers from leaving the immediate vicinity
of the accident.
The FAA accepts these concerns and has amended the provision in the
final rule to require the employee to remain readily available for
testing. This could include going to a crew lounge or airline office;
however, the employee would have to take appropriate steps to ensure
that if the employer determined that the employee must undergo post-
accident testing, the employer would be able to rapidly locate the
employee and have him or her tested. It would not, for example, be
acceptable for the employee to leave the scene of the accident at an
airport without informing the employer or a designated point of contact
of the employee's location--even if the employee remained at the
airport and technically ``available'' for testing.
The issues associated with remote site testing and conduct of tests
within the required timeframes are addressed in the common preamble. As
mentioned in that document, the FAA is not adopting the recommendation
that employers be allowed to substitute for FAA-mandated tests post-
accident tests conducted by law enforcement officers (LEOs) for law
enforcement purposes. The FAA already has in place a provision (14 CFR
91.17) under which crewmembers required to submit to alcohol tests by
LEOs may be required to provide the results of such tests to the FAA.
The possible conflicts between the employer's obligations and the
intent of post-accident tests under this rule and those of LEOs
outweigh any benefit that might be achieved from such a proposal. (As
discussed in the preamble to 49 CFR part 40, however, a LEO could serve
as an employer's BAT, but any tests would have to be conducted pursuant
to this rule and 49 CFR part 40.)
Random testing: As required by the Act, the rule includes random
alcohol testing for covered employees. The FAA has tailored the testing
to ensure that testing reasonably serves the FAA's interest in aviation
safety. Selection procedures like those in current FAA-approved
antidrug plans must be used to ensure randomness of testing.
The majority of comments received on random testing (other than
those asserting it was unconstitutional and/or unnecessary) cited the
particular difficulties associated with testing of crewmembers at or
near the time of the flight. These commenters noted that pre-flight
time for crewmembers, especially pilots, is very tightly scheduled,
with little built in flexibility. The commenters asserted that
employers would be faced with two choices: either arrange for all
crewmembers to report for duty early every day (because testing is
supposed to be both unannounced and random) to ensure that the
employees were available for testing if they were selected, or accept
that a certain number of flights might be delayed to accommodate the
additional time required to conduct testing. These commenters asked
that the FAA revise its rule to eliminate random testing or to permit
all random testing to occur after flights terminate.
While the FAA is extremely sensitive to the financial and
operational implications of this rule, it cannot adopt the
recommendation of these commenters. Random alcohol testing is required
by the Act. An effective random testing program must be designed to
detect and deter all of the prohibited conduct: pre-duty use of
alcohol, on-duty use of alcohol, and reporting for duty or remaining on
duty with an impermissible alcohol concentration. Because post-flight
testing (especially on long flights) would realistically only address
on-duty use of alcohol, it would not serve the overall purpose of
random alcohol testing. Similarly, if all testing were performed before
flights (as recommended by one commenter), the testing program would
have no deterrent effect for on-duty use of alcohol. The FAA intends to
work with the aviation industry to assist employers in implementing the
most cost-effective random alcohol testing programs possible.
The final rule retains the provision from the NPRM under which
employees selected for testing must proceed immediately to the testing
site. The rule also provides that an employee notified of his or her
selection while in the midst of performing a safety-sensitive function
would be directed to cease performing the function and proceed to the
testing site as soon as possible. Obviously, the FAA does not expect
any safety-sensitive employee to simply abandon his or her duties upon
notification of selection for random testing. Such an employee would
have to arrange for a replacement or otherwise cease performing the
safety-sensitive function as soon as it could be safely terminated.
The term ``immediately'' was used by the FAA intentionally. To the
extent possible, employees notified of selection for a random test
should take whatever steps are necessary to report to the testing site
without any delay or detour. The time between notification and testing
should be the absolute minimum necessary. The FAA recognizes that in
some situations employees will have to advise supervisors that the
employees must report for testing. Employers should ensure that they
have instituted procedures to accommodate this provision (for example,
the employer could arrange for the BAT to coordinate with designated
supervisors to approve the employees' departure to a testing site
before notifying the selected employees). The FAA expects that, with
limited exceptions, the time between notification and testing will be
no more than the requisite travel time to the testing site. If
notification and testing occur at an airport, this time should be a
matter of minutes.
Reasonable suspicion testing: Most of the commenters to the NPRM
supported the provision for reasonable suspicion alcohol testing,
although some labor organizations asserted that two supervisors should
be required. The FAA has not adopted this recommendation. The common
preamble discusses in detail the substantive revisions to this
provision.
Return to duty and follow-up testing: The specific requirements for
these types of tests are discussed in the common preamble.
Retesting after result of 0.02 or greater but less than 0.04: In
the NPRM, the FAA sought comment on whether the proposed ``retest or
return'' procedure gives employers enough flexibility (or too much) in
handling covered employees with low-level alcohol concentrations.
Because most commenters supported a single cut-off level, very few
addressed this provision. One commenter stated that if the bifurcated
cut-off system was adopted, all employees testing between 0.02 and
0.039 should be subject to another test before returning to work;
employers should not have the option of waiting until the next duty
period in lieu of a test.
The FAA has not adopted this recommendation. The primary intent of
this rule is to protect safety, and that goal is adequately
accomplished whether an employee tests below 0.02 or is made to wait at
least 8 hours before performing safety-sensitive functions. No
additional benefit would be achieved by instituting a return-to-duty
testing requirement for all employees who test in the 0.02 to 0.039
range. Further, the rule does not preclude, and would in fact require,
the employer to conduct a reasonable suspicion test if, when the
employee next reported for duty, the employee showed indicators of
alcohol misuse.
Recordkeeping and Reporting; Confidentiality
The requirements of the final rule with respect to recordkeeping
are largely unchanged from the NPRM. The records must be maintained in
a secure location and are releasable only as required under the rule or
with the express written consent of the employee. This rule requires
the release of employee-specific information to a subsequent employer
or other identified individual if the original employer receives a
written request from the employee. Contrary to the concerns expressed
by some commenters, the FAA believes that providing a regulatory
mandate for such release and removal of employer discretion will
minimize possible liability.
The rule also provides express authority to the FAA to conduct on-
site inspections of employer's alcohol programs, including the alcohol
testing process. As stated in the preamble to the NPRM, the FAA's
experience with compliance monitoring under the antidrug rule has
indicated that the individuals managing employers' programs are often
unaware of the FAA's authority to conduct such inspections. While the
Administrator or his designee has such authority even absent a
regulatory provision, the FAA determined that inclusion of such a
provision in this rule is necessary to ensure industry awareness of the
FAA's authority to monitor compliance.
Although the NPRM proposed reporting of statistical information by
all employers and other aviation entities with separate AMPPs, this
final rule has been revised to limit the number of entities required to
submit reports. The FAA similarly amended its antidrug rule, primarily
to relieve the burdens associated with these rules on small employers.
The formats to be used for reporting the statistical information are
published as exhibits following this rule. No other form, including
another DOT Agency's form is acceptable for submission to the FAA.
Consequences of Engaging in Misuse of Alcohol or Refusing To Submit to
Testing
The Omnibus Transportation Employee Testing Act of 1991 (the Act)
amended the Federal Aviation Act of 1958 (the FAAct) and the statutes
that apply to the Federal Railroad Administration, the Federal Highway
Administration, and the Federal Transit Administration. While these
amendments have much common language, especially in the area of
testing, they are not identical. Of greatest significance, the
amendments to the FAAct contain a section entitled ``Prohibition on
service,'' which does not appear in the amendments to the other DOT
agencies' statutes.
The ``Prohibition on Service'' section is found at new FAAct
section 614(b). Under subsection 614(b)(1), an individual may not
remain on duty in a safety-sensitive function if he or she has violated
the prohibitions on the use of alcohol. This legislative provision on
continued duty is reflected in each of the subsections of the FAA's
rule addressing prohibited conduct (see, e.g., 14 CFR 65.46a). Each
section states either directly or by implication that the employee may
not report for duty or remain on duty requiring the performance of
safety-sensitive functions while engaging in conduct prohibited by the
rule. These sections further provide that no employer who has actual
knowledge that an employee is in violation of the rule may permit the
employee to perform or continue to perform safety-sensitive functions.
Additionally, appendix J, section V, paragraph A expressly prohibits an
employee who has engaged in conduct prohibited by the rule from
performing safety-sensitive functions. This section, consistent with
the rules of the other DOT agencies, also requires removal from duty
for refusal to submit to a required alcohol test.
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 provide, at a minimum, for the identification of
employees in need of assistance in resolving problems with misuse of
alcohol. Further, the section gives the Administrator the authority to
determine the circumstances under which such employees would be
required to participate in any required rehabilitation. The provisions
recognize 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
appendix J, section V, paragraph E, ``Required evaluation.'' This
section requires that the employee be evaluated in accordance with
section VI of the appendix prior to performing covered functions. The
evaluation process is discussed further below.
The rule also contains a provision, analogous to the one in the
antidrug rule, under which employers are required to notify the Federal
Air Surgeon of any instance in which a holder of a part 67 medical
certificate violated the provisions of the rule or refused to submit to
a required alcohol test (with the exception of pre-employment tests).
The employer also has to forward to the FAA copies of the evaluations
conducted by the SAP. The Federal Air Surgeon will use this information
to determine whether further action should be taken with respect to the
medical certificate. No employee requiring an airman medical
certificate shall return to the performance of safety-sensitive
functions without the Federal Air Surgeon's recommendation.
Section 614(b)(3) of the FAAct, ``Performance of prior duties
prohibited,'' provides sanctions for employees who engage in prohibited
use of alcohol after the date of the Omnibus Transportation Employee
Testing Act. This subsection is found only in the amendments to the
FAAct and has no parallel in the amendments to the other DOT agencies'
statutes. 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 impermissible use of alcohol. 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.
This bar applies under four circumstances. The first occurs if the
individual misuses alcohol ``while on duty.'' The remaining
prohibitions all relate to rehabilitation: the absolute bar to
returning to duty applies if an employee misuses alcohol after the date
of enactment, and
1. Had previously misused alcohol and undergone a program of
rehabilitation under the regulations promulgated pursuant to the Act;
2. Refused to undertake any required rehabilitation; or
3. Failed to complete any required rehabilitation.
This rule implements the prohibitions in two ways. First, appendix
J, section V, paragraph B, ``Permanent disqualification for service''
applies if an employee is determined to have violated the on-duty use
prohibition or if the employee twice violated other provisions of the
rule after its effective date. Under this section the employee is
permanently barred from performing the safety-sensitive functions he or
she performed before such a determination.
As proposed in the NPRM, this bar would have applied to the
performance of any safety-sensitive function. The FAA noted in the NPRM
that a narrow bar, limited only to the safety-sensitive functions the
individual previously performed, could lead to anomalous results.
Commenters differed in responding to the proposed bar, some favoring a
broad exclusion while another wanted the bar removed as inconsistent
with the Americans with Disabilities Act (ADA). The latter commenter
failed to note that the Act requires a permanent bar and that the
regulations implementing the ADA provide for the necessity of complying
with the regulations of another Federal agency (29 CFR 1630.15(e)).
However, the FAA has concluded that a bar limited to the statutory
requirement is more likely to be seen as clearly consistent with the
ADA and other legal constraints, and has thus adopted this change in
the final rule. It should be noted that employers retain any discretion
they may have under independent authority to preclude such employees
from performing other safety-sensitive functions. The FAA expects that
employers will exercise responsible judgment in deciding whether
employees not expressly barred from service will be permitted to
perform other safety-sensitive functions.
As addressed in the NPRM, the bar on two-time violators will apply
both to persons who had gone through rehabilitation and to those who,
after evaluation by a substance abuse professional (SAP), are
determined not to need treatment. Otherwise, an employee who was found
to need treatment and had an instance of recidivism would be
sanctioned, but an employee who did not need assistance but simply
chose to engage in misuse of alcohol would not be sanctioned.
A number of commenters objected to the FAA's proposal to apply the
permanent bar to individuals who engage in multiple instances of
alcohol misuse. They noted that recidivism is often a normal part of
the rehabilitative process. Given the Act's requirements, these
comments cannot be adopted. The Act requires that individuals complete
rehabilitation prior to returning to safety-sensitive functions.
Therefore, once an employee has been deemed by the SAP to have
completed rehabilitation and is returned to the performance of safety-
sensitive functions, the employee must conform his or her conduct to
the requirements of the rule.
The bar following a refusal or failure of rehabilitation is
implicitly implemented in this rule by the requirement that prior to
returning to duty performing safety-sensitive functions each employee
must be evaluated by an SAP to determine whether the employee properly
met the requirements for rehabilitation established during the initial
evaluation. An employee who does not meet the requirements, whether by
failure or refusal, will be precluded from returning to the performance
of safety-sensitive functions. Commenters supported the FAA's choice in
the NPRM not to propose a definite time period during which the
employee must comply. They agreed that the rule will thus allow for the
denial phase that most people go through when first confronted with
evidence of an alcohol problem.
Alcohol Misuse Information and Training
In the NPRM, the FAA specifically sought comment on whether the
rule should include alcohol awareness training for all employees.
Commenters split almost equally between two positions: Labor
organizations and employees favored employee training, and employers
stated that such training would be unnecessary and costly. The common
preamble addresses these issues in greater detail; however, it should
be noted that while the FAA is not requiring formal employee training,
the FAA did adopt the recommendation to provide more detailed written
materials to employees. Further, nothing in this rule precludes an
employer from providing training to its employees under the employer's
own authority.
Employee Referral, Evaluation, and Treatment
As was noted in the NPRM, the FAA recognized the sometimes
conflicting needs of employer flexibility and employee health. The FAA
did not propose to prescribe regulations with respect to specific types
of rehabilitation and maintains that position in the final rule. This
rule does include the process proposed in the NPRM under which each
covered employee who engages in alcohol misuse or who refuses to submit
to testing must be advised of all resources available to the employee.
It also requires that each such employee be evaluated by a SAP to
determine whether and what assistance the employee needed in resolving
problems associated with alcohol misuse.
Some commenters, primarily labor organizations and employees,
stated that the rule should include a mechanism to protect employees
from overzealous, biased, or unprofessional SAPs. These commenters
suggested that employees be entitled to obtain a second opinion from
another SAP, that the SAP evaluations be reviewed by a medical review
officer, or that the employee be permitted to choose the SAP. The FAA
has not adopted these suggestions. Each person authorized by this rule
to act as an SAP has obligations independent of this rule which require
him or her to perform the duties in this rule professional and ethical
manner. Aside from the financial restrictions discussed in the common
preamble, the FAA does not believe that any additional protection of
employees is necessary. The use of a second opinion system would be
especially difficult and problematic in a program such as this one
where, in the exercise of reasonable, good faith analysis of a case,
two SAPs could very possibly arrive at different conclusions on the
appropriate therapeutic intervention. As was the case in the NPRM,
however, the final rule provides that selection of the SAP should be
made in accordance with employer/employee agreements and employer
policies.
Employer Alcohol Misuse Prevention Program Plans; Certification
Statements
The FAA proposed in the NPRM to include a requirement that
employers submit detailed alcohol misuse prevention program (AMPP)
plans to the FAA for approval prior to implementation of a program
under the rule. Many commenters stated that the use of specific plans
would be unduly cumbersome in the context of an AMPP. These commenters
stated that unlike drug testing, in which a single laboratory is
generally used, it is likely that alcohol testing will be conducted
using a variety of breath testing devices. Additionally, since the SAPs
must personally evaluate each employee who violates the rule, large
companies will probably arrange to have many SAPs available wherever
they are necessary. These commenters requested that the FAA limit its
plan submission requirements to address these concerns.
The FAA agrees with these comments. Although the use of detailed,
preapproved plans was and remains beneficial in the context of the
antidrug rule, the FAA has chosen to minimize the requirements for the
final alcohol rule. Instead, the FAA will require submission of a
certification statement that will provide specified identifying
information and an agreement to comply with this rule. Like the plan
submission requirement, the certification statements will provide the
FAA with the ability to readily determine which companies are failing
or refusing to comply with the rule.
Commenters generally supported the FAA proposal to permit companies
whose employees perform covered services by contract to an employer to
establish independent alcohol misuse prevention programs. Under the
revised procedures in this rule, contractor companies are able to
submit certification statements directly to the FAA and may be
authorized to implement AMPPs for their own employees. An aspect of the
NPRM that has not changed is the requirement that each entity that
establishes an AMPP, whether a contractor company or an employer, must
maintain its program in accordance with the final rule. A contractor
company, for example, is required to maintain the confidentiality of
records pertaining to its employees and must disclose such records only
in accordance with the rule. The FAA has retained the ability to revoke
its authorization for any contractor company that fails to properly
implement its AMPP. Because employers are only able to use contractor
employees who are subject to an FAA-mandated program, potential
revocation of authorization to establish an AMPP provides a strong
incentive to contractor companies to properly implement their programs.
The FAA has also retained the provisions under which employers and
contractor companies may join consortia for purposes of complying with
the rule. A consortium certification statement must set forth the
aspects of the AMPP that the consortium intends to provide to aviation
employers.
Generally, the final rule provides that aviation entities must
submit the certification statements in duplicate. The FAA will annotate
receipt on one of the copies and return it to the submitter, after
which the submitter can implement its AMPP.
Phased Implementation
The NPRM included a proposed schedule for phased implementation of
the AMPP for the aviation industry. Most commenters that addressed the
schedule favored the FAA's proposal and this schedule has been
maintained in the final rule. For each class of employers, the rule
requires submission of a certification statement by a certain date and
implementation of the FAA-mandated AMPP approximately 6 months later.
One change was made in response to comments: As proposed, employers
would have had 8 months after their specified submission date to ensure
that contractor employees were subject to an approved program. Many
commenters did not think, given the complexity of the new requirements,
that they could both implement their own programs and monitor their
contractor companies' compliance. The FAA has therefore revised the
timetable to require employers to ensure compliance by contractors 12
months after the date on which the employers' must submit their
certification statements.
Under the final rule, part 121 and large part 135 certificate
holders (more than 50 covered employees) and air traffic control
facilities are required to comply with the rule first, with
implementation scheduled to occur on January 1, 1995. Part 135
certificate holders with 11 to 50 covered employees are in the second
phase of implementation (June 1, 1995), and small part 135 certificate
holders and Sec. 135.1(c) operators in the last phase (January 1,
1996).
Employees Located Outside the U.S.
The NPRM proposed that the rule would apply to direct employees of
U.S. air carriers who perform safety-sensitive functions outside the
U.S. after January 2, 1995. The NPRM also proposed that the FAA would
not permit testing of such employees, however, if the FAA received
written documentation from an employer demonstrating that such testing
would be inconsistent with the laws and regulations of the country in
which the testing would occur. Upon review of the comments submitted to
this docket and to FAA Docket Number 27066 (which addressed possible
testing requirements for foreign air carriers), the FAA has determined
that it will not require testing of any employees located outside the
territory of the United States.
To ensure proper selection for random testing, an employer is
required to remove from the random testing pool any employee assigned
to perform covered functions solely outside the territory of the United
States, since such an employee would not be 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. Although the FAA is
cognizant of concerns about safety and economic parity that would be
raised by such an exclusion, the FAA has determined that
extraterritorial application of this rule, with its significant
logistical issues and possible conflicts with local laws, should not be
pursued.
Paperwork Reduction Act Approval
Appendix J to part 121 requires each employer to submit to the FAA:
An alcohol misuse prevention program certification statement;
notification to the FAA of alcohol misuse by holders of airman medical
certificates issued under 14 CFR part 67; notification to the FAA of
refusals to submit to alcohol testing by holders of airman certificates
issued under 14 CFR parts 61, 63, and 65; and annual statistical
reports summarizing data on the employer's alcohol misuse prevention
program. To provide the notifications and reports to the FAA, employers
are required to maintain records related to each covered employee,
including test results. In accordance with the Paperwork Reduction Act
of 1980 (Pub. L. 96-511), the recordkeeping and reporting requirements
in this final rule have been submitted to the Office of Management and
Budget (OMB) for approval. Information collection requirements are not
effective until the paperwork reduction act package has been received.
Economic Summary
A full regulatory evaluation has been prepared by the FAA and
placed in the docket that provides detailed estimates of the economic
consequences of this regulatory action. The FAA certifies that the
annual costs to be imposed on small operators will not exceed the
thresholds for significant impact and that this rule will not have a
significant economic impact on a substantial number of small entities.
International Trade Impact Analysis
The FAA finds that this rule affects all part 121 and part 135 air
carriers. 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.
Federalism Implications
This rule does 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 rule does not have sufficient
federalism implications to warrant preparation of a Federalism
Assessment.
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 an increase
in costs for consumers, industry, or Federal, State, or local agencies.
The FAA has determined, however, that this rule involves issues of
substantial interest to the public. Therefore, the FAA has determined
that the rule is significant under the Executive Order 12866 and the
Regulatory Policies and Procedures of the Department of Transportation
(44 FR 11034; February 2, 1979).
A Regulatory Impact Analysis of the rule has been placed in the
regulatory docket. A copy may be obtained by contacting the office
identified under ``FOR FURTHER INFORMATION CONTACT.''
Other Regulatory Matters
The FAA has received three petitions for rulemaking that address
issues concerning alcohol use in aviation. The docket numbers for those
petitions are 24706, 26233, and 26872. Because the issues raised in the
petitions have been resolved in this final rule, the FAA has closed
these actions.
A number of commenters also asked that the FAA amend 14 CFR
91.13(a) to provide that crewmembers would only be held liable for the
actions of a fellow crewmember if they have actual knowledge that the
crewmember was impaired by drugs or alcohol. The comments cited the
case of Johnson v. National Transportation Safety Board, 979 F.2d 618
(7th Cir. 1992), in which a pilot lost his airman certificate after his
copilot was determined to have been intoxicated. Revision of this
provision was neither explicitly nor implicitly contemplated in the
NPRM, and the FAA finds that the issue is outside the scope of this
rulemaking.
List of Subjects
14 CFR Part 61
Air safety, Air transportation, Aircraft, Aircraft pilots, Airmen,
Alcohol, Alcoholism, Aviation safety, Safety, Transportation.
14 CFR Part 63
Air safety, Air transportation, Aircraft, Airmen, Alcohol,
Alcoholism, Aviation safety, Safety, Transportation.
14 CFR Part 65
Air safety, Air traffic, Air transportation, Aircraft, Airmen,
Alcohol, Alcoholism, Aviation safety, Safety, Transportation.
14 CFR Part 121
Air carriers, Air transportation, Aircraft, Aircraft pilots,
Airmen, Airplanes, Alcohol, Alcoholism, Aviation safety, Pilots,
Safety, Transportation.
14 CFR Part 135
Air carriers, Air taxi, Air transportation, Aircraft, Airmen,
Airplanes, Alcohol, Alcoholism, Aviation safety, Pilots, Safety,
Transportation.
In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR parts 61, 63, 65, 121, and 135 as follows:
PART 61--CERTIFICATION: PILOTS AND FLIGHT INSTRUCTORS
1. The authority citation for part 61 is revised 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 61.14 is revised to read as follows:
Sec. 61.14 Refusal to submit to a drug or alcohol test.
(a) This section applies to an employee who performs a function
listed in appendix I or appendix J to part 121 of this chapter directly
or by contract for a part 121 certificate holder, a part 135
certificate holder, or an operator as defined in Sec. 135.1(c) of this
chapter.
(b) Refusal by the holder of a certificate issued under this part
to take a drug test required under the provisions of appendix I to part
121 or an alcohol test required under the provisions of appendix J to
part 121 is grounds for--
(1) Denial of an application for any certificate or rating issued
under this part for a period of up to 1 year after the date of such
refusal; and
(2) Suspension or revocation of any certificate or rating issued
under this part.
PART 63--CERTIFICATION: FLIGHT CREW-MEMBERS OTHER THAN PILOTS
3. The authority citation for part 63 is revised to read as
follows:
Authority: 49 U.S.C. 1354(a), 1355, 1421, 1422, 1427, 1429, and
1430 (revised, Pub. L. 102-143, October 28, 1991); 49 U.S.C. 106(g)
(revised, Pub. L. 97-449, January 12, 1983).
4. Section 63.12b is revised to read as follows:
Sec. 63.12b Refusal to submit to a drug or alcohol test.
(a) This section applies to an employee who performs a function
listed in appendix I or appendix J to part 121 of this chapter directly
or by contract for a part 121 certificate holder, a part 135
certificate holder, or an operator as defined in Sec. 135.1(c) of this
chapter.
(b) Refusal by the holder of a certificate issued under this part
to take a drug test required under the provisions of appendix I to part
121 or an alcohol test required under the provisions of appendix J to
part 121 is grounds for--
(1) Denial of an application for any certificate or rating issued
under this part for a period of up to 1 year after the date of such
refusal; and
(2) Suspension or revocation of any certificate or rating issued
under this part.
PART 65--CERTIFICATION: AIRMEN OTHER THAN FLIGHT CREWMEMBERS
5. The authority citation for part 65 is revised 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).
6. Section 65.23 is revised to read as follows:
Sec. 65.23 Refusal to submit to a drug or alcohol test.
(a) General. This section applies to an employee who performs a
function listed in appendix I or appendix J to part 121 of this chapter
directly or by contract for 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
the U.S. military.
(b) Refusal by the holder of a certificate issued under this part
to take a drug test required under the provisions of appendix I to part
121 or an alcohol test required under the provisions of appendix J to
part 121 is grounds for--
(1) Denial of an application for any certificate or rating issued
under this part for a period of up to 1 year after the date of such
refusal; and
(2) Suspension or revocation of any certificate or rating issued
under this part.
7. Section 65.46a is added to read as follows:
Sec. 65.46a Misuse of alcohol.
(a) This section applies to employees who perform air traffic
control duties directly or by contract for an employer that is an air
traffic control facility not operated by the FAA or the U.S. military
(covered employees).
(b) Alcohol concentration. No covered employee shall report for
duty or remain on duty requiring the performance of safety-sensitive
functions while having an alcohol concentration of 0.04 or greater. No
employer having actual knowledge that an employee has an alcohol
concentration of 0.04 or greater shall permit the employee to perform
or continue to perform safety-sensitive functions.
(c) On-duty use. No covered employee shall use alcohol while
performing safety-sensitive functions. No employer having actual
knowledge that a covered employee is using alcohol while performing
safety-sensitive functions shall permit the employee to perform or
continue to perform safety-sensitive functions.
(d) Pre-duty use. No covered employee shall perform air traffic
control duties within 8 hours after using alcohol. No employer having
actual knowledge that such an employee has used alcohol within 8 hours
shall permit the employee to perform or continue to perform air traffic
control duties.
(e) Use following an accident. No covered employee who has actual
knowledge of an accident involving an aircraft for which he or she
performed a safety-sensitive function at or near the time of the
accident shall use alcohol for 8 hours following the accident, unless
he or she has been given a post-accident test under appendix J to part
121 of this chapter, or the employer has determined that the employee's
performance could not have contributed to the accident.
(f) Refusal to submit to a required alcohol test. No covered
employee shall refuse to submit to a post-accident, random, reasonable
suspicion, or follow-up alcohol test required under appendix J to part
121 of this chapter. No employer shall permit an employee who refuses
to submit to such a test to perform or continue to perform safety-
sensitive functions.
8. Section 65.46b is added to read as follows:
Sec. 65.46b Testing for alcohol.
(a) Each air traffic control facility not operated by the FAA or
the U.S. military (hereinafter employer) must establish an alcohol
misuse prevention program in accordance with the provisions of appendix
J to part 121 of this chapter.
(b) No employer shall use any person who meets the definition of
covered employee in appendix J to part 121 to perform a safety-
sensitive function listed in that appendix unless such person is
subject to testing for alcohol misuse in accordance with the provisions
of appendix J.
PART 121--CERTIFICATION AND OPERATIONS: DOMESTIC, FLAG, AND
SUPPLEMENTAL AIR CARRIERS AND COMMERCIAL OPERATORS OF LARGE
AIRCRAFT
9. The authority citation for part 121 is revised 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).
10. Section 121.458 is added to subpart O to read as follows:
Sec. 121.458 Misuse of alcohol.
(a) General. This section applies to employees who perform a
function listed in appendix J to this part for a certificate holder
(covered employees). For the purpose of this section, a person who
meets the definition of covered employee in appendix J is considered to
be performing the function for the certificate holder.
(b) Alcohol concentration. No covered employee shall report for
duty or remain on duty requiring the performance of safety-sensitive
functions while having an alcohol concentration of 0.04 or greater. No
certificate holder having actual knowledge that an employee has an
alcohol concentration of 0.04 or greater shall permit the employee to
perform or continue to perform safety-sensitive functions.
(c) On-duty use. No covered employee shall use alcohol while
performing safety-sensitive functions. No certificate holder having
actual knowledge that a covered employee is using alcohol while
performing safety-sensitive functions shall permit the employee to
perform or continue to perform safety-sensitive functions.
(d) Pre-duty use. (1) No covered employee shall perform flight
crewmember or flight attendant duties within 8 hours after using
alcohol. No certificate holder having actual knowledge that such an
employee has used alcohol within 8 hours shall permit the employee to
perform or continue to perform the specified duties.
(2) No covered employee shall perform safety-sensitive duties other
than those specified in paragraph (d)(1) of this section within 4 hours
after using alcohol. No certificate holder having actual knowledge that
such an employee has used alcohol within 4 hours shall permit the
employee to perform or continue to perform safety-sensitive functions.
(e) Use following an accident. No covered employee who has actual
knowledge of an accident involving an aircraft for which he or she
performed a safety-sensitive function at or near the time of the
accident shall use alcohol for 8 hours following the accident, unless
he or she has been given a post-accident test under appendix J of this
part, or the employer has determined that the employee's performance
could not have contributed to the accident.
(f) Refusal to submit to a required alcohol test. No covered
employee shall refuse to submit to a post-accident, random, reasonable
suspicion, or follow-up alcohol test required under appendix J to this
part. No certificate holder shall permit an employee who refuses to
submit to such a test to perform or continue to perform safety-
sensitive functions.
11. Section 121.459 is added to subpart O to read as follows:
Sec. 121.459 Testing for alcohol.
(a) Each certificate holder must establish an alcohol misuse
prevention program in accordance with the provisions of appendix J to
this part.
(b) No certificate holder shall use any person who meets the
definition of covered employee in appendix J to this part to perform a
safety-sensitive function listed in that appendix unless such person is
subject to testing for alcohol misuse in accordance with the provisions
of appendix J.
12. Appendix J to part 121 is added to read as follows:
Appendix J to Part 121--Alcohol Misuse Prevention Program
This appendix contains the standards and components that must be
included in an alcohol misuse prevention program required by this
chapter.
I. General.
A. Purpose. The purpose of this appendix is to establish
programs designed to help prevent accidents and injuries resulting
from the misuse of alcohol by employees who perform safety-sensitive
functions in aviation.
B. Alcohol testing procedures. Each employer shall ensure that
all alcohol testing conducted pursuant to this appendix complies
with the procedures set forth in 49 CFR part 40. The provisions of
49 CFR part 40 that address alcohol testing are made applicable to
employers by this appendix.
C. Definitions.
As used in this appendix--
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 the time all such persons
have disembarked, and in which any person suffers death or serious
injury or in which the aircraft receives substantial damage.
Administrator means the Administrator of the Federal Aviation
Administration or his or her designated representative.
Alcohol means the intoxicating agent in beverage alcohol, ethyl
alcohol, or other low molecular weight alcohols, including methyl or
isopropyl alcohol.
Alcohol concentration (or content) means the alcohol in a volume
of breath expressed in terms of grams of alcohol per 210 liters of
breath as indicated by an evidential breath test under this
appendix.
Alcohol use means the consumption of any beverage, mixture, or
preparation, including any medication, containing alcohol.
Confirmation test means a second test, following a screening
test with a result 0.02 or greater, that provides quantitative data
of alcohol concentration.
Consortium means an entity, including a group or association of
employers or contractors, that provides alcohol testing as required
by this appendix and that acts on behalf of such employers or
contractors, provided that it has submitted an alcohol misuse
prevention program certification statement to the FAA in accordance
with this appendix.
Contractor company means a company that has employees who
perform safety-sensitive functions by contract for an employer.
Covered employee means a person who performs, either directly or
by contract, a safety-sensitive function listed in section II of
this appendix for an employer (as defined below). For purposes of
pre-employment testing only, the term ``covered employee'' includes
a person applying to perform a safety-sensitive function.
DOT agency means an agency (or ``operating administration'') of
the United States Department of Transportation administering
regulations requiring alcohol testing (14 CFR parts 65, 121, and
135; 49 CFR parts 199, 219, and 382) in accordance with 49 CFR part
40.
Employer means a part 121 certificate holder; a part 135
certificate holder; an air traffic control facility not operated by
the FAA or by or under contract to the U.S. military; and an
operator as defined in 14 CFR 135.1(c).
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 functions.
Refuse to submit (to an alcohol test) means that a covered
employee fails to provide adequate breath for testing without a
valid medical explanation after he or she has received notice of the
requirement to be tested in accordance with this appendix, or
engages in conduct that clearly obstructs the testing process.
Safety-sensitive function means a function listed in section II
of this appendix.
Screening test means an analytical procedure to determine
whether a covered employee may have a prohibited concentration of
alcohol in his or her system.
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 an
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 alcohol-related disorders.
Violation rate means the number of covered employees (as
reported under section IV of this appendix) found during random
tests given under this appendix to have an alcohol concentration of
0.04 or greater plus the number of employees who refused a random
test required by this appendix, divided by the total reported number
of employees in the industry given random alcohol tests under this
appendix plus the total reported number of employees in the industry
who refuse a random test required by this appendix.
D. Preemption of State and local laws.
1. Except as provided in subparagraph 2 of this paragraph, these
regulations preempt any State or local law, rule, regulation, or
order to the extent that:
(a) Compliance with both the State or local requirement and this
appendix is not possible; or
(b) Compliance with the State or local requirement is an
obstacle to the accomplishment and execution of any requirement in
this appendix.
2. The alcohol misuse requirements of this title shall not be
construed to preempt provisions of State criminal law that impose
sanctions for reckless conduct leading to actual loss of life,
injury, or damage to property, whether the provisions apply
specifically to transportation employees or employers or to the
general public.
E. Other requirements imposed by employers.
Except as expressly provided in these alcohol misuse
requirements, nothing in these requirements shall be construed to
affect the authority of employers, or the rights of employees, with
respect to the use or possession of alcohol, including any authority
and rights with respect to alcohol testing and rehabilitation.
F. Requirement for notice.
Before performing an alcohol test under this appendix, each
employer shall notify a covered employee that the alcohol test is
required by this appendix. No employer shall falsely represent that
a test is administered under this appendix.
II. Covered Employees
Each employee who performs a 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 FAA-approved alcohol
misuse prevention program implemented in accordance with this
appendix. The covered safety-sensitive functions are:
1. Flight crewmember duties.
2. Flight attendant duties.
3. Flight instruction duties.
4. Aircraft dispatcher duties.
5. Aircraft maintenance or preventive maintenance duties.
6. Ground security coordinator duties.
7. Aviation screening duties.
8. Air traffic control duties.
III. Tests Required
A. Pre-employment
1. Prior to the first time a covered employee performs safety-
sensitive functions for an employer, the employee shall undergo
testing for alcohol. No employer shall allow a covered employee to
perform safety-sensitive functions unless the employee has been
administered an alcohol test with a result indicating an alcohol
concentration less than 0.04. If a pre-employment test result under
this paragraph indicates an alcohol concentration of 0.02 or greater
but less than 0.04, the provisions of paragraph F of section V of
this appendix apply.
2. An employer is not required to administer an alcohol test as
required by this paragraph if:
(a) The employee has undergone an alcohol test required by this
appendix or the alcohol misuse rule of another DOT agency under 49
CFR part 40 within the previous 6 months, with a result indicating
an alcohol concentration less than 0.04; and
(b) The employer ensures that no prior employer of the covered
employee of whom the employer has knowledge has records of a
violation of Sec. 65.46a, 121.458, or 135.253 of this chapter or the
alcohol misuse rule of another DOT agency within the previous 6
months.
B. Post-accident
1. As soon as practicable following an accident, each employer
shall test each surviving covered employee for alcohol if that
employee's performance of a safety-sensitive function either
contributed to the accident or cannot be completely discounted as a
contributing factor to the accident. The decision not to administer
a test under this section shall be based on the employer's
determination, using the best available information at the time of
the determination, that the covered employee's performance could not
have contributed to the accident.
2. If a test required by this section is not administered within
2 hours following the accident, the employer shall prepare and
maintain on file a record stating the reasons the test was not
promptly administered. If a test required by this section is not
administered within 8 hours following the accident, the employer
shall cease attempts to administer an alcohol test and shall prepare
and maintain the same record. Records shall be submitted to the FAA
upon request of the Administrator or his or her designee.
3. A covered employee who is subject to post-accident testing
shall remain readily available for such testing or may be deemed by
the employer to have refused to submit to testing. Nothing in this
section shall be construed to require the delay of necessary medical
attention for injured people following an accident or to prohibit a
covered employee from leaving the scene of an accident for the
period necessary to obtain assistance in responding to the accident
or to obtain necessary emergency medical care.
C. Random testing
1. Except as provided in paragraphs 2-4 of this section, the
minimum annual percentage rate for random alcohol testing will be 25
percent of the covered employees.
2. The Administrator's decision to increase or decrease the
minimum annual percentage rate for random alcohol testing is based
on the violation rate for the entire industry. All information used
for this determination is drawn from alcohol MIS reports required by
this appendix. In order to ensure reliability of the data, the
Administrator considers the quality and completeness of the reported
data, may obtain additional information or reports from employers,
and may make appropriate modifications in calculating the industry
violation rate. Each year, the Administrator will publish in the
Federal Register the minimum annual percentage rate for random
alcohol testing of covered employees. The new minimum annual
percentage rate for random alcohol testing will be applicable
starting January 1 of the calendar year following publication.
3. (a) When the minimum annual percentage rate for random
alcohol testing is 25 percent or more, the Administrator may lower
this rate to 10 percent of all covered employees if the
Administrator determines that the data received under the reporting
requirements of this appendix for two consecutive calendar years
indicate that the violation rate is less than 0.5 percent.
(b) When the minimum annual percentage rate for random alcohol
testing is 50 percent, the Administrator may lower this rate to 25
percent of all covered employees if the Administrator determines
that the data received under the reporting requirements of this
appendix for two consecutive calendar years indicate that the
violation rate is less than 1.0 percent but equal to or greater than
0.5 percent.
4. (a) When the minimum annual percentage rate for random
alcohol testing is 10 percent, and the data received under the
reporting requirements of this appendix for that calendar year
indicate that the violation rate is equal to or greater than 0.5
percent but less than 1.0 percent, the Administrator will increase
the minimum annual percentage rate for random alcohol testing to 25
percent of all covered employees.
(b) When the minimum annual percentage rate for random alcohol
testing is 25 percent or less, and the data received under the
reporting requirements of this appendix for that calendar year
indicate that the violation rate is equal to or greater than 1.0
percent, the Administrator will increase the minimum annual
percentage rate for random alcohol testing to 50 percent of all
covered employees.
5. The selection of employees for random alcohol testing shall
be made by a scientifically valid method, such as a random-number
table or a computer-based random number generator that is matched
with employees' Social Security numbers, payroll identification
numbers, or other comparable identifying numbers. Under the
selection process used, each covered employee shall have an equal
chance of being tested each time selections are made.
6. The employer shall randomly select a sufficient number of
covered employees for testing during each calendar year to equal an
annual rate not less than the minimum annual percentage rate for
random alcohol testing determined by the Administrator. If the
employer conducts random testing through a consortium, the number of
employees to be tested may be calculated for each individual
employer or may be based on the total number of covered employees
who are subject to random alcohol testing at the same minimum annual
percentage rate under this appendix or any DOT alcohol testing rule.
7. Each employer shall ensure that random alcohol tests
conducted under this appendix are unannounced and that the dates for
administering random tests are spread reasonably throughout the
calendar year.
8. Each employer shall require that each covered employee who is
notified of selection for random testing proceeds to the testing
site immediately; provided, however, that if the employee is
performing a safety-sensitive function at the time of the
notification, the employer shall instead ensure that the employee
ceases to perform the safety-sensitive function and proceeds to the
testing site as soon as possible.
9. A covered employee shall only be randomly tested while the
employee is performing safety-sensitive functions; just before the
employee is to perform safety-sensitive functions; or just after the
employee has ceased performing such functions.
10. If a given covered employee is subject to random alcohol
testing under the alcohol testing rules of more than one DOT agency,
the employee shall be subject to random alcohol testing at the
percentage rate established for the calendar year by the DOT agency
regulating more than 50 percent of the employee's functions.
11. If an employer is required to conduct random alcohol testing
under the alcohol testing rules of more than one DOT agency, the
employer may--
(a) Establish separate pools for random selection, with each
pool containing the covered employees who are subject to testing at
the same required rate; or
(b) Randomly select such employees for testing at the highest
percentage rate established for the calendar year by any DOT agency
to which the employer is subject.
D. Reasonable Suspicion Testing
1. An employer shall require a covered employee to submit to an
alcohol test when the employer has reasonable suspicion to believe
that the employee has violated the alcohol misuse prohibitions in
Sec. 65.46a, 121.458, or 135.253 of this chapter.
2. The employer's determination that reasonable suspicion exists
to require the covered employee to undergo an alcohol test shall be
based on specific, contemporaneous, articulable observations
concerning the appearance, behavior, speech or body odors of the
employee. The required observations shall be made by a supervisor
who is trained in detecting the symptoms of alcohol misuse. The
supervisor who makes the determination that reasonable suspicion
exists shall not conduct the breath alcohol test on that employee.
3. Alcohol testing is authorized by this section only if the
observations required by paragraph 2 are made during, just
preceding, or just after the period of the work day that the covered
employee is required to be in compliance with this rule. An employee
may be directed by the employer to undergo reasonable suspicion
testing for alcohol only while the employee is performing safety-
sensitive functions; just before the employee is to perform safety-
sensitive functions; or just after the employee has ceased
performing such functions.
4. (a) If a test required by this section is not administered
within 2 hours following the determination made under paragraph 2 of
this section, the employer shall prepare and maintain on file a
record stating the reasons the test was not promptly administered.
If a test required by this section is not administered within 8
hours following the determination made under paragraph 2 of this
section, the employer shall cease attempts to administer an alcohol
test and shall state in the record the reasons for not administering
the test.
(b) Notwithstanding the absence of a reasonable suspicion
alcohol test under this section, no covered employee shall report
for duty or remain on duty requiring the performance of safety-
sensitive functions while the employee is under the influence of or
impaired by alcohol, as shown by the behavioral, speech, or
performance indicators of alcohol misuse, nor shall an employer
permit the covered employee to perform or continue to perform
safety-sensitive functions until:
(1) An alcohol test is administered and the employee's alcohol
concentration measures less than 0.02; or
(2) The start of the employee's next regularly scheduled duty
period, but not less than 8 hours following the determination made
under paragraph 2 of this section that there is reasonable suspicion
that the employee has violated the alcohol misuse provisions in
Sec. 65.46a, 121.458, or 135.253 of this chapter.
(c) Except as provided in paragraph 4(b), no employer shall take
any action under this appendix against a covered employee based
solely on the employee's behavior and appearance in the absence of
an alcohol test. This does not prohibit an employer with authority
independent of this appendix from taking any action otherwise
consistent with law.
E. Return to Duty Testing
Each employer shall ensure that before a covered employee
returns to duty requiring the performance of a safety-sensitive
function after engaging in conduct prohibited in Sec. 65.46a,
121.458, or 135.253 of this chapter, the employee shall undergo a
return to duty alcohol test with a result indicating an alcohol
concentration of less than 0.02.
F. Follow-up Testing
Following a determination under section VI, paragraph C.2 of
this appendix that a covered employee is in need of assistance in
resolving problems associated with alcohol misuse, each employer
shall ensure that the employee is subject to unannounced follow-up
alcohol testing as directed by a substance abuse professional in
accordance with the provisions of section VI, paragraph C.3(b)(2) of
this appendix. A covered employee shall be tested under this
paragraph only while the employee is performing safety-sensitive
functions; just before the employee is to perform safety-sensitive
functions; or just after the employee has ceased performing such
functions.
G. Retesting of Covered Employees With an Alcohol Concentration of
0.02 or Greater but Less Than 0.04
Each employer shall retest a covered employee to ensure
compliance with the provisions of section V, paragraph F of this
appendix, if the employer chooses to permit the employee to perform
a safety-sensitive function within 8 hours following the
administration of an alcohol test indicating an alcohol
concentration of 0.02 or greater but less than 0.04.
IV. Handling of Test Results, Record Retention, and Confidentiality
A. Retention of Records
1. General Requirement. Each employer shall maintain records of
its alcohol misuse prevention program as provided in this section.
The records shall be maintained in a secure location with controlled
access.
2. Period of Retention. Each employer shall maintain the records
in accordance with the following schedule:
(a) Five years. Records of employee alcohol test results with
results indicating an alcohol concentration of 0.02 or greater,
documentation of refusals to take required alcohol tests,
calibration documentation, employee evaluations and referrals, and
copies of any annual reports submitted to the FAA under this
appendix shall be maintained for a minimum of 5 years.
(b) Two years. Records related to the collection process (except
calibration of evidential breath testing devices) and training shall
be maintained for a minimum of 2 years.
(c) One year. Records of all test results below 0.02 shall be
maintained for a minimum of 1 year.
3. Types of Records. The following specific records shall be
maintained.
(a) Records related to the collection process:
(1) Collection logbooks, if used.
(2) Documents relating to the random selection process.
(3) Calibration documentation for evidential breath testing
devices.
(4) Documentation of breath alcohol technician training.
(5) Documents generated in connection with decisions to
administer reasonable suspicion alcohol tests.
(6) Documents generated in connection with decisions on post-
accident tests.
(7) Documents verifying existence of a medical explanation of
the inability of a covered employee to provide adequate breath for
testing.
(b) Records related to test results:
(1) The employer's copy of the alcohol test form, including the
results of the test;
(2) Documents related to the refusal of any covered employee to
submit to an alcohol test required by this appendix.
(3) Documents presented by a covered employee to dispute the
result of an alcohol test administered under this appendix.
(c) Records related to other violations of Secs. 65.46a,
121.248, or 135.253 of this chapter.
(d) Records related to evaluations:
(1) Records pertaining to a determination by a substance abuse
professional concerning a covered employee's need for assistance.
(2) Records concerning a covered employee's compliance with the
recommendations of the substance abuse professional.
(3) Records of notifications to the Federal Air Surgeon of
violations of the alcohol misuse prohibitions in this chapter by
covered employees who hold medical certificates issued under part 67
of this chapter.
(e) Records related to education and training:
(1) Materials on alcohol misuse awareness, including a copy of
the employer's policy on alcohol misuse.
(2) Documentation of compliance with the requirements of section
VI, paragraph A of this appendix.
(3) Documentation of training provided to supervisors for the
purpose of qualifying the supervisors to make a determination
concerning the need for alcohol testing based on reasonable
suspicion.
(4) Certification that any training conducted under this
appendix complies with the requirements for such training.
B. Reporting of Results in a Management Information System
1. Annual reports summarizing the results of alcohol misuse
prevention programs shall be submitted to the FAA in the form and
manner prescribed by the Administrator by March 15 of each year
covering the previous calendar year (January 1 through December 31)
in accordance with the provisions below.
(a) Each part 121 certificate holder shall submit an annual
report each year.
(b) Each entity conducting an alcohol misuse prevention program
under the provisions of this appendix, other than a part 121
certificate holder, that has 50 or more covered employees on January
1 of any calendar year shall submit an annual report to the FAA for
that calendar year.
(c) The Administrator reserves the right to require employers
not otherwise required to submit annual reports to 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.
2. Each employer that is subject to more than one DOT agency
alcohol rule shall identify each employee covered by the regulations
of more than one DOT agency. The identification will be by the total
number and category of covered function. Prior to conducting any
alcohol test on a covered employee subject to the rules of more than
one DOT agency, the employer shall determine which DOT agency rule
or rules authorizes or requires the test. The test result
information shall be directed to the appropriate DOT agency or
agencies.
3. Each employer shall ensure the accuracy and timeliness of
each report submitted.
4. Each report shall be submitted in the form and manner
prescribed by the Administrator.
5. Each report shall be signed by the employer's alcohol misuse
prevention program manager or other designated representative.
6. Each report that contains information on an alcohol screening
test result of 0.02 or greater or a violation of the alcohol misuse
provisions of Sec. 65.46a, 121.458, or 135.253 of this chapter shall
include the following informational elements:
(a) Number of covered employees by employee category.
(b) Number of covered employees in each category subject to
alcohol testing under the alcohol misuse rule of another DOT agency,
identified by each agency.
(c)(1) Number of screening tests by type of test and employee
category.
(2) Number of confirmation tests, by type of test and employee
category.
(d) Number of confirmation alcohol tests indicating an alcohol
concentration of 0.02 or greater but less than 0.04 by type of test
and employee category.
(e) Number of confirmation alcohol tests indicating an alcohol
concentration of 0.04 or greater, by type of test and employee
category.
(f) Number of persons denied a position as a covered employee
following a pre-employment alcohol test indicating an alcohol
concentration of 0.04 or greater.
(g) Number of covered employees with a confirmation alcohol test
indicating an alcohol concentration of 0.04 or greater who were
returned to duty in covered positions (having complied with the
recommendations of a substance abuse professional as described in
section V, paragraph E, and section VI, paragraph C of this
appendix).
(h) Number of covered employees who were administered alcohol
and drug tests at the same time, with both a positive drug test
result and an alcohol test result indicating an alcohol
concentration of 0.04 or greater.
(i) Number of covered employees who were found to have violated
other alcohol misuse provisions of Secs. 65.46a, 121.458, or 135.253
of this chapter, and the action taken in response to the violation.
(j) Number of covered employees who refused to submit to an
alcohol test required under this appendix, the number of such
refusals that were for random tests, and the action taken in
response to each refusal.
(k) Number of supervisors who have received required training
during the reporting period in determining the existence of
reasonable suspicion of alcohol misuse.
7. Each report with no screening test results of 0.02 or greater
or violations of the alcohol misuse provisions of Secs. 65.46a,
121.458, or 135.253 of this chapter shall include the following
informational elements. (This report may only be submitted if the
program results meet these criteria.)
(a) Number of covered employees by employee category.
(b) Number of covered employees in each category subject to
alcohol testing under the alcohol misuse rule of another DOT agency,
identified by each agency.
(c) Number of screening tests by type of test and employee
category.
(d) Number of covered employees who engaged in alcohol misuse
who were returned to duty in covered positions (having complied with
the recommendations of a substance abuse professional as described
in section V, paragraph E, and section VI, paragraph C of this
appendix).
(e) Number of covered employees who refused to submit to an
alcohol test required under this appendix, and the action taken in
response to each refusal.
(f) Number of supervisors who have received required training
during the reporting period in determining the existence of
reasonable suspicion of alcohol misuse.
8. 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.
C. Access to Records and Facilities
1. Except as required by law or expressly authorized or required
in this appendix, no employer shall release covered employee
information that is contained in records required to be maintained
under this appendix.
2. A covered employee is entitled, upon written request, to
obtain copies of any records pertaining to the employee's use of
alcohol, including any records pertaining to his or her alcohol
tests. The employer shall promptly provide the records requested by
the employee. Access to an employee's records shall not be
contingent upon payment for records other than those specifically
requested.
3. Each employer shall make available copies of all results of
alcohol testing conducted under this appendix and any other
information pertaining to the employer's alcohol misuse prevention
program, when requested by the Secretary of Transportation or any
DOT agency with regulatory authority over the employer or covered
employee.
4. When requested by the National Transportation Safety Board as
part of an accident investigation, each employer shall disclose
information related to the employer's administration of a post-
accident alcohol test administered following the accident under
investigation.
5. Records shall be made available to a subsequent employer upon
receipt of written request from the covered employee. Disclosure by
the subsequent employer is permitted only as expressly authorized by
the terms of the employee's request.
6. An employer may disclose information required to be
maintained under this appendix pertaining to a covered employee to
the employee or to the decisionmaker in a lawsuit, grievance, or
other proceeding initiated by or on behalf of the individual and
arising from the results of an alcohol test administered under this
appendix or from the employer's determination that the employee
engaged in conduct prohibited under Secs. 65.46a, 121.458, or
135.253 of this chapter (including, but not limited to, a worker's
compensation, unemployment compensation, or other proceeding
relating to a benefit sought by the employee).
7. An employer shall release information regarding a covered
employee's records as directed by the specific, written consent of
the employee authorizing release of the information to an identified
person. Release of such information by the person receiving the
information is permitted only in accordance with the terms of the
employee's consent.
8. Each employer shall permit access to all facilities utilized
in complying with the requirements of this appendix to the Secretary
of Transportation or any DOT agency with regulatory authority over
the employer or any of its covered employees.
V. Consequences for Employees Engaging in Alcohol-Related Conduct
A. Removal From Safety-sensitive Function
1. Except as provided in section VI of this appendix, no covered
employee shall perform safety-sensitive functions if the employee
has engaged in conduct prohibited by Secs. 65.46a, 121.458, or
135.253 of this chapter or an alcohol misuse rule of another DOT
agency.
2. No employer shall permit any covered employee to perform
safety-sensitive functions if the employer has determined that the
employee has violated this paragraph.
B. Permanent Disqualification From Service
An employee who violates Secs. 65.46a(c), 121.458(c), or
135.253(c) or who violates other alcohol misuse provisions of
Secs. 65.46a, 121.458, or 135.253 of this chapter and had previously
engaged in conduct that violated the provisions of Secs. 65.46a,
121.458, or 135.253 of this chapter after March 18, 1994 is
permanently precluded from performing for an employer the safety-
sensitive duties the employee performed before such violation.
C. Notice to the Federal Air Surgeon
1. An employer who determines that a covered employee who holds
an airman medical certificate issued under part 67 of this chapter
has violated the provisions of Secs. 65.46a, 121.458, or 135.253 of
this chapter shall notify the Federal Air Surgeon within 2 working
days.
2. Each such employer shall forward to the Federal Air Surgeon a
copy of the report of any evaluation performed under the provisions
of section VI of this appendix within 2 working days of the
employer's receipt of the report.
3. All documents shall be sent to the Federal Air Surgeon,
Office of Aviation Medicine, Drug Abatement Division (AAM-800), 400
7th Street SW., Washington, DC 20590.
4. No covered employee who holds a part 67 airman medical
certificate shall perform safety-sensitive duties for an employer
following a violation until and unless the Federal Air Surgeon has
recommended that the employee be permitted to perform such duties.
D. Notice of Refusals
1. Except as provided in subparagraph 2 of this paragraph, each
employer shall notify the FAA of any covered employee who holds a
certificate issued under part 61, part 63, or part 65 who has
refused to submit to an alcohol test required under this appendix.
Notifications 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. An employer is not required to notify the FAA of refusals to
submit to pre-employment alcohol tests or refusals to submit to
return to duty tests.
E. Required Evaluation and Testing
No covered employee who has engaged in conduct prohibited by
Secs. 65.46a, 121.458, or 135.253 of this chapter shall perform
safety-sensitive functions unless the employee has met the
requirements of section VI, paragraph C of this appendix. No
employer shall permit a covered employee who has engaged in such
conduct to perform safety-sensitive functions unless the employee
has met the requirements of section VI, paragraph C of this
appendix.
F. Other Alcohol-Related Conduct
1. No covered employee tested under the provisions of section
III of this appendix who is found to have an alcohol concentration
of 0.02 or greater but less than 0.04 shall perform or continue to
perform safety-sensitive functions for an employer, nor shall an
employer permit the employee to perform or continue to perform
safety-sensitive functions, until:
(a) The employee's alcohol concentration measures less than
0.02; or
(b) The start of the employee's next regularly scheduled duty
period, but not less than 8 hours following administration of the
test.
2. Except as provided in subparagraph 1 of this paragraph, no
employer shall take any action under this rule against an employee
based solely on test results showing an alcohol concentration less
than 0.04. This does not prohibit an employer with authority
independent of this rule from taking any action otherwise consistent
with law.
VI. Alcohol Misuse Information, Training, and Referral
A. Employer Obligation to Promulgate a Policy on the Misuse of
Alcohol
1. General requirements. Each employer shall provide educational
materials that explain these alcohol misuse requirements and the
employer's policies and procedures with respect to meeting those
requirements.
(a) The employer shall ensure that a copy of these materials is
distributed to each covered employee prior to the start of alcohol
testing under the employer's FAA-mandated alcohol misuse prevention
program and to each person subsequently hired for or transferred to
a covered position.
(b) Each employer shall provide written notice to
representatives of employee organizations of the availability of
this information.
2. Required content. The materials to be made available to
employees shall include detailed discussion of at least the
following:
(a) The identity of the person designated by the employer to
answer employee questions about the materials.
(b) The categories of employees who are subject to the
provisions of these alcohol misuse requirements.
(c) Sufficient information about the safety-sensitive functions
performed by those employees to make clear what period of the work
day the covered employee is required to be in compliance with these
alcohol misuse requirements.
(d) Specific information concerning employee conduct that is
prohibited by this chapter.
(e) The circumstances under which a covered employee will be
tested for alcohol under this appendix.
(f) The procedures that will be used to test for the presence of
alcohol, protect the employee and the integrity of the breath
testing process, safeguard the validity of the test results, and
ensure that those results are attributed to the correct employee.
(g) The requirement that a covered employee submit to alcohol
tests administered in accordance with this appendix.
(h) An explanation of what constitutes a refusal to submit to an
alcohol test and the attendant consequences.
(i) The consequences for covered employees found to have
violated the prohibitions in this chapter, including the requirement
that the employee be removed immediately from performing safety-
sensitive functions, and the procedures under section VI of this
appendix.
(j) The consequences for covered employees found to have an
alcohol concentration of 0.02 or greater but less than 0.04.
(k) Information concerning the effects of alcohol misuse on an
individual's health, work, and personal life; signs and symptoms of
an alcohol problem; and available methods of evaluating and
resolving problems associated with the misuse of alcohol; and
intervening when an alcohol problem is suspected, including
confrontation, referral to any available employee assistance
program, and/or referral to management.
(l) Optional provisions. The materials supplied to covered
employees may also include information on additional employer
policies with respect to the use or possession of alcohol, including
any consequences for an employee found to have a specified alcohol
level, that are based on the employer's authority independent of
this appendix. Any such additional policies or consequences must be
clearly and obviously described as being based on independent
authority.
B. Training for Supervisors
Each employer shall ensure that persons designated to determine
whether reasonable suspicion exists to require a covered employee to
undergo alcohol testing under section II of this appendix receive at
least 60 minutes of training on the physical, behavioral, speech,
and performance indicators of probable alcohol misuse.
C. Referral, Evaluation, and Treatment
1. Each covered employee who has engaged in conduct prohibited
by Secs. 65.46a, 121.458, or 135.253 of this chapter shall be
advised by the employer of the resources available to the employee
in evaluating and resolving problems associated with the misuse of
alcohol, including the names, addresses, and telephone numbers of
substance abuse professionals and counseling and treatment programs.
2. Each covered employee who engages in conduct prohibited under
Secs. 65.46a, 121.458, or 135.253 of this chapter shall be evaluated
by a substance abuse professional who must determine what
assistance, if any, the employee needs in resolving problems
associated with alcohol misuse.
3. (a) Before a covered employee returns to duty requiring the
performance of a safety-sensitive function after engaging in conduct
prohibited by Secs. 65.46a, 121.458, or 135.253 of this chapter, the
employee shall undergo a return-to-duty alcohol test with a result
indicating an alcohol concentration of less than 0.02.
(b) In addition, each covered employee identified as needing
assistance in resolving problems associated with alcohol misuse--
(i) Shall be evaluated by a substance abuse professional to
determine whether the employee has properly followed any
rehabilitation program prescribed under subparagraph 2 of this
paragraph, and,
(ii) Shall be subject to unannounced follow-up alcohol tests
administered by the employer following the employee's return to
duty. The number and frequency of such follow-up testing shall be
determined by a substance abuse professional, but shall consist of
at least six tests in the first 12 months following the employee's
return to duty. The employer may direct the employee to undergo
testing for drugs (both return to duty and follow-up), in addition
to alcohol testing, if the substance abuse professional determines
that drug testing is necessary for the particular employee. Any such
drug testing shall be conducted in accordance with the requirements
of 49 CFR part 40. Follow-up testing shall not exceed 60 months from
the date of the employee's return to duty. The substance abuse
professional may terminate the requirement for follow-up testing at
any time after the first six tests have been administered, if the
substance abuse professional determines that such testing is no
longer necessary.
4. Evaluation and rehabilitation may be provided by the
employer, by a substance abuse professional under contract with the
employer, or by a substance abuse professional not affiliated with
the employer. The choice of substance abuse professional and
assignment of costs shall be made in accordance with employer/
employee agreements and employer policies.
5. Each employer shall ensure that a substance abuse
professional who determines that a covered employee requires
assistance in resolving problems with alcohol misuse 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--
(a) A public agency, such as a State, county, or municipality;
(b) The employer or a person under contract to provide treatment
for alcohol problems on behalf of the employer;
(c) The sole source of therapeutically appropriate treatment
under the employee's health insurance program; or
(d) The sole source of therapeutically appropriate treatment
reasonably accessible to the employee.
6. The requirements of this paragraph with respect to referral,
evaluation, and rehabilitation do not apply to applicants who refuse
to submit to pre-employment testing or have a pre-employment test
with a result indicating an alcohol concentration of 0.04 or
greater.
VII. Employer's Alcohol Misuse Prevention Program
A. Schedule for Submission of Certification Statements and
Implementation
1. Each employer shall submit an alcohol misuse prevention
program (AMPP) certification statement as prescribed in paragraph B
of section VII of this appendix, in duplicate, to the FAA, Office of
Aviation Medicine, Drug Abatement Division (AAM-800), 400 7th Street
SW., Washington, DC 20590, in accordance with the schedule below.
(a) Each employer that holds a part 121 certificate, each
employer that holds a part 135 certificate and directly employs more
than 50 covered employees, and each air traffic control facility
affected by this rule shall submit a certification statement to the
FAA by July 1, 1994. Each employer must implement an AMPP meeting
the requirements of this appendix on January 1, 1995. Contractor
employees to these employers must be subject to an AMPP meeting the
requirements of this appendix by July 1, 1995.
(b) Each employer that holds a part 135 certificate and directly
employs from 11 to 50 covered employees shall submit a certification
statement to the FAA by January 1, 1995. Each employer must
implement an AMPP meeting the requirements of this appendix on July
1, 1995. Contractor employees to these employers must be subject to
an AMPP meeting the requirements of this appendix by January 1,
1996.
(c) Each employer that holds a part 135 certificate and directly
employs ten or fewer covered employees, and each operator as defined
in 14 CFR 135.1(c) shall submit a certification statement to the FAA
by July 1, 1995. Each employer must implement an AMPP meeting the
requirements of this appendix on January 1, 1996. Contractor
employees to these employers must be subject to an AMPP meeting the
requirements of this appendix by July 1, 1996.
2. A company providing covered employees by contract to
employers may be authorized by the FAA to establish an AMPP under
the auspices of this appendix by submitting a certification
statement meeting the requirements of paragraph B of section VII of
this appendix directly to the FAA. Each contractor company that
establishes an AMPP shall implement its AMPP in accordance with the
provisions of this appendix.
(a) The FAA may revoke its authorization in the case of any
contractor company that fails to properly implement its AMPP.
(b) No employer shall use a contractor company's employee who is
not subject to the employer's AMPP unless the employer has first
determined that the employee is subject to another FAA-mandated
AMPP.
3. A consortium may be authorized to establish a consortium AMPP
under the auspices of this appendix by submitting a certification
statement meeting the requirements of paragraph B of section VII of
this appendix directly to the FAA. Each consortium that so certifies
shall implement the AMPP on behalf of the consortium members in
accordance with the provisions of this appendix.
(a) The FAA may revoke its authorization in the case of any
consortium that fails to properly implement the AMPP.
(b) Each employer that participates in an FAA-approved
consortium remains individually responsible for ensuring compliance
with the provisions of these alcohol misuse requirements and must
maintain all records required under section IV of this appendix.
(c) Each consortium shall notify the FAA of any membership
termination within 10 days of such termination.
4. Any person who applies for a certificate under the provisions
of parts 121 or 135 of this chapter after the effective date of the
final rule shall submit an alcohol misuse prevention program (AMPP)
certification statement to the FAA prior to beginning operations
pursuant to the certificate. The AMPP shall be implemented
concurrently with beginning such operations or on the date specified
in paragraph A.1. of this section, whichever is later. Contractor
employees to a new certificate holder must be subject to an FAA-
mandated AMPP within 180 days of the implementation of the
employer's AMPP.
5. 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 March 18, 1994 shall, not later
than 60 days prior to the proposed initiation of such operations,
submit an alcohol misuse prevention program certification statement
to the FAA. The AMPP shall be implemented concurrently with the
inception of operations or on the date specified in paragraph A.1 of
this section, whichever is later. Contractor employees to a new air
traffic control facility must be subject to an FAA-approved program
within 180 days of the implementation of the facility's program.
6. Any person who intends to begin sightseeing operations as an
operator under 14 CFR 135.1(c) after March 18, 1994 shall, not later
than 60 days prior to the proposed initiation of such operations,
submit an alcohol misuse prevention program (AMPP) certification
statement to the FAA. The AMPP shall be implemented concurrently
with the inception of operations or on the date specified in
paragraph A.1 of this section, whichever is later. Contractor
employees to a new operator must be subject to an FAA-mandated AMPP
within 180 days of the implementation of the employer's AMPP.
7. The duplicate certification statement shall be annotated
indicating receipt by the FAA and returned to the employer,
contractor company, or consortium.
8. Each consortium that submits an AMPP certification statement
to the FAA must receive actual notice of the FAA's receipt of the
statement prior to performing services as an FAA-approved consortium
under this appendix on behalf of employers or contractor companies.
9. Each employer, and each contractor company that submits a
certification statement directly to the FAA, shall notify the FAA of
any proposed change in status (e.g., join a consortium or another
carrier's program, change consortium, etc.) prior to the effective
date of such change. The employer or contractor company must ensure
that it is continuously covered by an FAA-mandated alcohol misuse
prevention program.
B. Required Content of AMPP Certification Statements
1. Each AMPP certification statement submitted by an employer or
a contractor company shall provide the following information:
(a) The name, address, and telephone number of the employer/
contractor company and for the employer/contractor company AMPP
manager;
(b) FAA operating certificate number (if applicable);
(c) The date on which the employer or contractor company will
implement its AMPP;
(d) If the submitter is a consortium member, the identity of the
consortium; and
(e) A statement signed by an authorized representative of the
employer or contractor company certifying an understanding of and
agreement to comply with the provisions of the FAA's alcohol misuse
prevention regulations.
2. Each consortium certification statement shall provide the
following information.
(a) The name, address, and telephone number of the consortium's
AMPP manager;
(b) A list of the specific services the consortium will be
providing in implementation of FAA-mandated AMPPs (e.g., random
testing, SAP).
(c) A statement signed by an authorized representative of the
consortium certifying an understanding of and agreement to comply
with the provisions of the FAA's alcohol misuse prevention
regulations.
VIII. Employees Located Outside the U.S.
A. No covered employee shall be tested for alcohol misuse while
located outside the territory of the United States.
1. Each covered 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 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 safety-sensitive function by contract for an employer
outside the territory of the United States.
PART 135--AIR TAXI OPERATORS AND COMMERCIAL OPERATORS
13. The authority citation for part 135 is revised 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).
14. In Sec. 135.1 paragraphs (c) and (d) are revised to read as
follows:
Sec. 135.1 Applicability.
* * * * *
(c) For the purpose of Secs. 135.249, 135.251, 135.253, 135.255,
and 135.353, operator means 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.
(d) Notwithstanding the provisions of this part and appendices I
and J to part 121 of this chapter, an operator who does not hold a part
121 or part 135 certificate is permitted to use a person who is
otherwise authorized to perform aircraft maintenance or preventive
maintenance duties and who is not subject to FAA-approved anti-drug and
alcohol misuse prevention programs to perform--
(1) Aircraft maintenance or preventive maintenance on the
operator's aircraft if the operator would otherwise be required to
transport the aircraft more than 50 nautical miles further than the
repair point closest to operator's principal place of operation to
obtain these services; or
(2) Emergency repairs on the operator's aircraft if the aircraft
cannot be safely operated to a location where an employee subject to
FAA-approved programs can perform the repairs.
15. Section 135.253 is added to subpart E to read as follows:
Sec. 135.253 Misuse of alcohol.
(a) This section applies to employees who perform a function listed
in appendix J to part 121 of this chapter for a certificate holder or
operator (covered employees). For the purpose of this section, a person
who meets the definition of covered employee in appendix J is
considered to be performing the function for the certificate holder or
operator.
(b) Alcohol concentration. No covered employee shall report for
duty or remain on duty requiring the performance of safety-sensitive
functions while having an alcohol concentration of 0.04 or greater. No
certificate holder or operator having actual knowledge that an employee
has an alcohol concentration of 0.04 or greater shall permit the
employee to perform or continue to perform safety-sensitive functions.
(c) On-duty use. No covered employee shall use alcohol while
performing safety-sensitive functions. No certificate holder or
operator having actual knowledge that a covered employee is using
alcohol while performing safety-sensitive functions shall permit the
employee to perform or continue to perform safety-sensitive functions.
(d) Pre-duty use. (1) No covered employee shall perform flight
crewmember or flight attendant duties within 8 hours after using
alcohol. No certificate holder or operator having actual knowledge that
such an employee has used alcohol within 8 hours shall permit the
employee to perform or continue to perform the specified duties.
(2) No covered employee shall perform safety-sensitive duties other
than those specified in paragraph (d)(1) of this section within 4 hours
after using alcohol. No certificate holder or operator having actual
knowledge that such an employee has used alcohol within 4 hours shall
permit the employee to perform or continue to perform safety-sensitive
functions.
(e) Use following an accident. No covered employee who has actual
knowledge of an accident involving an aircraft for which he or she
performed a safety-sensitive function at or near the time of the
accident shall use alcohol for 8 hours following the accident, unless
he or she has been given a post-accident test under appendix J of part
121 of this chapter, or the employer has determined that the employee's
performance could not have contributed to the accident.
(f) Refusal to submit to a required alcohol test. No covered
employee shall refuse to submit to a post-accident, random, reasonable
suspicion, or follow-up alcohol test required under appendix J to part
121 of this chapter. No operator or certificate holder shall permit a
covered employee who refuses to submit to such a test to perform or
continue to perform safety-sensitive functions.
16. Section 135.255 is added to subpart E to read as follows:
Sec. 135.255 Testing for alcohol.
(a) Each certificate holder and operator must establish an alcohol
misuse prevention program in accordance with the provisions of appendix
J to part 121 of this chapter.
(b) No certificate holder or operator shall use any person who
meets the definition of ``covered employee'' in appendix J to part 121
to perform a safety-sensitive function listed in that appendix unless
such person is subject to testing for alcohol misuse in accordance with
the provisions of appendix J.
Issued in Washington, DC, on January 25, 1994.
Federico Pena,
Secretary of Transportation.
David R. Hinson,
Administrator.
Note: These exhibits will not appear in the Code of Federal
Regulations.
Exhibits--FAA Alcohol Testing Management Information System Data
Collection Forms
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[FR Doc. 94-2032 Filed 2-3-94; 1:00 pm]
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