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14 May 2009
[Federal Register: May 14, 2009 (Volume 74, Number 92)] [Rules and Regulations] [Page 22649-22668] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr14my09-3] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Parts 61, 63, 65, 91, 120, 121, 135 [Docket No. FAA-2008-0937; Amendment Nos. 61-122, 63-37, 65-53, 91-307, 120-0, 121-343, 135-117] RIN 2120-AJ37 Drug and Alcohol Testing Program AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: This action amends the FAA's drug and alcohol regulations to place them in a new part. The FAA is not making any substantive changes to the drug and alcohol regulations in this rulemaking. DATES: Effective Date: July 13, 2009. FOR FURTHER INFORMATION CONTACT: Rafael Ramos, Office of Aerospace Medicine, Drug Abatement Division, AAM-800, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-8442; facsimile (202) 267-5200; e-mail drugabatement@faa.gov. SUPPLEMENTARY INFORMATION: Authority for Rulemaking The FAA's authority to issue rules regarding aviation safety is found in Title 49 of United States Code. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the FAA's authority. These rules were originally promulgated under the authority described in Subtitle VII, Part A Chapter 451--Alcohol and Controlled Substances Testing. Under section 45102, the FAA is charged with prescribing regulations for air carriers and foreign air carriers to establish and to conduct preemployment, reasonable suspicion, random, and post-accident drug and alcohol testing. Some of these rules, for example those dealing with contract air traffic controllers, were promulgated under the FAA's general rulemaking authority in 49 U.S.C. 44701(a)(5). This rule is intended to reorganize the requirements for drug and alcohol testing into a single part. It also clarifies the rules by, for example, replacing references to appendices I and J with references to part 120. It is expected that this rule will simplify locating specific provisions and changes to those provisions for individuals and entities required to comply with the FAA's drug and alcohol testing requirements. For this reason, the changes are within the scope of our authority and are a reasonable and necessary exercise of our statutory obligations. Background The regulations governing FAA-required drug and alcohol testing requirements currently are scattered throughout Chapter I of Title 14, Code of Federal Regulations. Requirements for affected certificated airmen are located in parts 61, 63, 65, and 67. [[Page 22650]] Requirements for affected air carriers and operators are located in parts 91, 121 and 135. Requirements for affected air traffic control facilities and air traffic controllers are included in subpart B of part 65. Requirements for repair stations certificated under part 145, and contractors, who elect to have drug and alcohol testing programs, are included in appendices I and J of part 121. At this time, the FAA is working on a major revision of its drug and alcohol testing regulations. Given the complexity of that revision and the time it will take to complete the rulemaking process, the FAA has concluded that in the interim it makes sense to pull the existing regulations together in one place. The FAA expects that doing so will clarify the requirements for testing, and simplify locating specific provisions and changes to those provisions for individuals and entities that have drug and alcohol testing programs. This rulemaking will gather the existing regulations into the new part, remove them from their existing locations, and provide cross references in parts 91 and 135 to the new part. Appendices I and J themselves set forth the requirements for drug and alcohol testing programs. Some provisions in the current regulations in appendices I and J are duplicative. For example, the definitions in the appendices are mostly verbatim duplications. In addition, some of the terms defined in the appendices I and J are used in parts 121 and 135. Because the drug and alcohol testing provisions of 121 and 135 are being moved to new part 120, it makes sense to move those definitions up to subpart A of new part 120. We are therefore including all the definitions in section 120.7 of subpart A. The FAA has begun moving away from using the separate terms ``antidrug program'' and ``alcohol misuse prevention program'' in favor of ``drug testing program'' and ``alcohol testing program'' where appropriate. For example, in this rulemaking, we use the term ``drug testing program'' instead of ``antidrug program'' in Sec. 120.101 and ``alcohol testing program'' instead of ``alcohol misuse prevention program'' in Sec. 120.21(a). However, the Operations Specifications A449 relating to drug and alcohol testing is still titled ``Antidrug and Alcohol Misuse Prevention Program Operations Specifications''. The language in the rules governing the requirements for part 119 certificate holders to conduct drug and alcohol testing is mostly identical for both 121 and 135 operations. There is some language that is unique to operations under part 135. To limit duplication and the potential for confusion related to having multiple regulations dealing with the same requirements, the FAA is combining the drug and alcohol testing requirements in current parts 121 and 135 rather than having separate part 120 subparts for 121 or 135. Provisions unique to operations conducted under part 135 are placed at the end of relevant sections. Organization of New Part 120 The following table shows the derivation of the regulations contained in this final rule: ------------------------------------------------------------------------ Based in whole or in part on 14 Final Rule part 120 section or CFR parts 61, 63, 65, 121, and paragraph 135 sections or paragraphs ------------------------------------------------------------------------ 120.11 Refusal to submit to a drug or 61.14 Refusal to submit to a alcohol test by a part 61 certificate drug or alcohol test. holder. 120.13 Refusal to submit to a drug or 63.12b Refusal to submit to a alcohol test by a part 63 certificate drug or alcohol test. holder. 120.15 Refusal to submit to a drug or 65.23 Refusal to submit to a alcohol test by a part 65 certificate drug or alcohol test. holder. 120.17 Use of prohibited drugs......... 65.46 Use of prohibited drugs. Subpart C 120.19 Misuse of alcohol..... 65.46a Misuse of alcohol. Subpart C 120.21 Testing for alcohol... 65.46b Testing for alcohol. 120.31 Prohibited drugs................ 121.429 and 135.353 Prohibited drugs. 120.33 Use of prohibited drugs......... 121.455 and 135.249 Use of prohibited drugs. 120.35 Testing for prohibited drugs.... 121.457 and 135.251 Testing for prohibited drugs. Subpart D 120.37 Misuse of alcohol..... 121.458 and 135.253 Misuse of alcohol. Subpart D 120.39 Testing for alcohol... 121.459 and 135.255 Testing for alcohol. Part 120 subpart E..................... Part 121 appendix I. Part 120 subpart F..................... Part 121 appendix J. ------------------------------------------------------------------------ Regulatory Evaluation, Regulatory Flexibility Determination, International Trade Analysis, and Unfunded Mandates Assessment Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 directs that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). In conducting these analyses, FAA has determined this rule--(1) Has benefits which do justify its costs, is not a significant regulatory action as defined in the Executive Order and is not significant as defined in DOT's Regulatory Policies and Procedures; (2) will not have a significant impact on a substantial number of small entities; (3) will have no effect on barriers to international trade; and (4) does not impose an unfunded mandate on state, local, or tribal governments, or on the private sector. Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits that a statement to that effect [[Page 22651]] and the basis for it be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this final rule. The reasoning for this determination follows: The FAA is not making any substantive changes to the drug and alcohol regulations in this rulemaking. This action amends the FAA's drug and alcohol regulations to place them in a new part. This rule imposes no costs and provides no accrual of benefits; and therefore, this rule will have no economic impact. Regulatory Flexibility Determination The Regulatory Flexibility Act of 1980 (RFA) establishes ``as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the business, organizations, and governmental jurisdictions subject to regulation.'' To achieve that principle, the RFA requires agencies to solicit and consider flexible regulatory proposals and to explain the rationale for their actions. The RFA covers a wide range of small entities, including small businesses, not-for-profit organizations and small governmental jurisdictions. Agencies must perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the Act. However, if an agency determines that a proposed or final rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the 1980 RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear. This rule imposes no costs and provides no accrual of benefits; and therefore, this rule will have no economic impact. This action amends the FAA's drug and alcohol regulations to place them in a new part. The FAA is not making any substantive changes to the drug and alcohol regulations in this rulemaking. Therefore, as the Acting FAA Administrator, I certify that this rule will not have a significant economic impact on a substantial number of small entities. International Trade Analysis The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule and determined that it will have only a domestic impact and therefore will not create unnecessary obstacles to the foreign commerce of the United States. Unfunded Mandates Determination Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104- 4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a ``significant regulatory action.'' The FAA currently uses an inflation-adjusted value of $136.1 million in lieu of $100 million. This final rule does not contain such a mandate. The requirements of Title II do not apply. Environmental Analysis FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 307(k) and involves no extraordinary circumstances. Regulations That Significantly Affect Energy Supply, Distribution, or Use The FAA has analyzed this Final Rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). We have determined that it is not a ``significant energy action'' under the executive order because it is not a ``significant regulatory action'' under Executive Order 12866, and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Executive Order 13132, Federalism The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. We determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, does not have federalism implications. International Civil Aviation Organization (ICAO) and Joint Aviation Regulations In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to comply with ICAO Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that this final rule does not conflict with any international agreement of the United States. Paperwork Reduction Act Information collection requirements associated with the final rule have been approved previously by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) and have been assigned OMB Control Numbers 2105-0529, 2120-0535, 2120-0685, 2120-0689. Good Cause Justification for Adoption Without Prior Notice We find good cause exists under 5 U.S.C. 553(b)(B) and (d)(3) to implement this final rule immediately without prior notice and comment. This rule merely reorganizes existing regulations governing drug and alcohol testing into their own part and makes clarifying changes to the existing parts of the rules necessitated by the reorganization. Proprietary or Confidential Business Information Do not file in the docket information that you consider to be proprietary or confidential business information. Send or deliver this information directly to the person identified in the FOR FURTHER INFORMATION CONTACT section of this document. You must mark the information that you consider proprietary or confidential. If you send [[Page 22652]] the information on a disk or CD-ROM, mark the outside of the disk or CD-ROM and also identify electronically within the disk or CD-ROM the specific information that is proprietary or confidential. Under Sec. 11.35(b), when we are aware of proprietary information filed with a comment, we do not place it in the docket. We hold it in a separate file to which the public does not have access, and place a note in the docket that we have received it. If we receive a request to examine or copy this information, we treat it as any other request under the Freedom of Information Act (5 U.S.C. 552). We process such a request under the DOT procedures found in 49 CFR part 7. Availability of Rulemaking Documents You can get an electronic copy of rulemaking documents using the Internet by-- 1. Searching the Federal eRulemaking Portal (http:// www.regulations.gov); 2. Visiting the FAA's Regulations and Policies Web page at http:// www.faa.gov/regulation_policies/; or 3. Accessing the Government Printing Office's Web page at http:// www.gpoaccess.gov/fr/index.html. You can also get a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the amendment number or docket number of this rulemaking. Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit http://DocketsInfo.dot.gov. Small Business Regulatory Enforcement Fairness Act The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. If you are a small entity and you have a question regarding this document, you may contact your local FAA official, or the person listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. You can find out more about SBRFA on the Internet at http://www.faa.gov/regulations_policies/rulemaking/sbre_ act/. List of Subjects 14 CFR Part 61 Aircraft, Airmen, Alcohol abuse, Aviation safety, Drug abuse, Recreation and recreation areas, Reporting and recordkeeping requirements, Security measures, Teachers. 14 CFR Part 63 Aircraft, Airmen, Alcohol abuse, Aviation safety, Drug abuse, Navigation (air), Reporting and recordkeeping requirements, Security measures. 14 CFR Part 65 Air traffic controllers, Aircraft, Airmen, Airports, Alcohol abuse, Aviation safety, Drug abuse, Reporting and recordkeeping requirements, Security measures. 14 CFR Part 91 Afghanistan, Agriculture, Air traffic control, Aircraft, Airmen, Airports, Aviation safety, Canada, Cuba, Ethiopia, Freight, Mexico, Noise control, Political candidates, Reporting and recordkeeping requirements, Yugoslavia. 14 CFR Part 120 Alcoholism, Air carriers, Air traffic control, Airmen, Alcohol abuse, Alcohol testing, Aviation safety, Charter flights, Commercial air tour operators, Contract air traffic controllers, Drug abuse, Drug testing, Operators, Reporting and recordkeeping requirements, Safety, Safety-sensitive, Transportation. 14 CFR Part 121 Air carriers, Aircraft, Airmen, Alcohol abuse, Aviation safety, Charter flights, Drug abuse, Drug testing, Reporting and recordkeeping requirements, Safety, Transportation. 14 CFR Part 135 Air taxis, Aircraft, Airmen, Alcohol abuse, Aviation safety, Drug abuse, Drug testing, Reporting and recordkeeping requirements. The Final Rule 0 In consideration of the foregoing, the Federal Aviation Administration adds part 120 and amends parts 61, 63, 65, 91, 121, and 135 of Title 14 of the Code of Federal Regulations (14 CFR parts 61, 63, 65, 91, 121, 135), as follows: PART 61--CERTIFICATION: PILOTS, FLIGHT INSTRUCTORS, AND GROUND INSTRUCTORS 0 1. The authority citation for part 61 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709- 44711, 45102-45103, 45301-45302. Sec. 61.14 [Removed and Reserved] 0 2. Section 61.14 is removed and reserved. PART 63--CERTIFICATION: FLIGHT CREWMEMBERS OTHER THAN PILOTS 0 3. The authority citation for part 63 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709- 44711, 45102-45103, 45301-45302. Sec. 63.12b [Removed and Reserved] 0 4. Section 63.12b is removed and reserved. PART 65--CERTIFICATION: AIRMEN OTHER THAN FLIGHT CREWMEMBERS 0 5. The authority citation for part 65 continues to read as follows: Authority: 49 U.S.C. 106(g). 40113, 44701-44703, 44707, 44709- 44711, 45102-45103, 45301-45302. Sec. 65.23 [Removed and Reserved] 0 6. Section 65.23 is removed and reserved. Sec. 65.46 [Removed and Reserved] 0 7. Section 65.46 is removed and reserved. Sec. 65.46a [Removed and Reserved] 0 8. Section 65.46a is removed and reserved. Sec. 65.46b [Removed and Reserved] 0 9. Section 65.46b is removed and reserved. PART 91--GENERAL OPERATING AND FLIGHT RULES 0 10. The authority citation for part 91 continues to read as follows: Authority: 49 U.S.C. 106(g), 1155, 40103, 40113, 40120, 44101, 44111, 44701, 44704, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528- 47531, articles 12 and 29 of the Convention on International Civil Aviation (61 Stat. 1180). 0 11. Section 91.147(d) is revised to read as follows: Sec. 91.147 Passenger-carrying flights for compensation or hire. * * * * * (d) The Operator must register and implement its drug and alcohol testing programs in accordance with part 120 of this chapter. * * * * * [[Page 22653]] 0 12. Section 91.1047(c)(3) is revised to read as follows: Sec. 91.1047 Drug and alcohol misuse education program. * * * * * (c) * * * (3) The degree to which the program manager's company testing program is comparable to the federally mandated drug and alcohol testing program required under part 120 of this chapter regarding the information in paragraphs (c)(1) and (c)(2) of this section. * * * * * 0 13. Add Part 120 to read as follows: PART 120--DRUG AND ALCOHOL TESTING PROGRAM Subpart A--General Sec. 120.1 Applicability. 120.3 Purpose. 120.5 Procedures. 120.7 Definitions. Subpart B--Individuals Certificated Under Parts 61, 63, and 65 120.11 Refusal to submit to a drug or alcohol test by a Part 61 certificate holder. 120.13 Refusal to submit to a drug or alcohol test by a Part 63 certificate holder. 120.15 Refusal to submit to a drug or alcohol test by a Part 65 certificate holder. Subpart C--Air Traffic Controllers 120.17 Use of prohibited drugs. 120.19 Misuse of alcohol. 120.21 Testing for alcohol. Subpart D--Part 119 Certificate Holders Authorized To Conduct Operations Under Part 121 or Part 135 or Operators Under Sec. 91.147 of This Chapter and Safety-Sensitive Employees 120.31 Prohibited drugs. 120.33 Use of prohibited drugs. 120.35 Testing for prohibited drugs. 120.37 Misuse of alcohol. 120.39 Testing for alcohol. Subpart E--Drug Testing Program Requirements 120.101 Scope. 120.103 General. 120.105 Employees who must be tested. 120.107 Substances for which testing must be conducted. 120.109 Types of drug testing required. 120.111 Administrative and other matters. 120.113 Medical Review Officer, Substance Abuse Professional, and employer responsibilities. 120.115 Employee Assistance Program (EAP). 120.117 Implementing a drug testing program. 120.119 Annual reports. 120.121 Preemption. 120.123 Drug testing outside of the territory of the United States. 120.125 Waivers from 49 CFR 40.21. Subpart F--Alcohol Testing Program Requirements 120.201 Scope. 120.203 General. 120.205 Preemption of State and local laws. 120.207 Other requirements imposed by employers. 120.209 Requirement for notice. 120.211 Applicable Federal regulations. 120.213 Falsification. 120.215 Covered employees. 120.217 Tests required. 120.219 Handling of test results, record retention, and confidentiality. 120.221 Consequences for employees engaging in alcohol-related conduct. 120.223 Alcohol misuse information, training, and substance abuse professionals. 120.225 How to implement an alcohol testing program. 120.227 Employees located outside the U.S. Authority: 49 U.S.C. 106(g), 40101-40103, 40113, 40120, 41706, 41721, 44106, 44701, 44702, 44703, 44709, 44710, 44711, 45101-45105, 46105, 46306. Subpart A--General Sec. 120.1 Applicability. This part applies to the following persons: (a) All air carriers and operators certificated under part 119 of this chapter authorized to conduct operations under part 121 or part 135 of this chapter, all air traffic control facilities not operated by the FAA or by or under contract to the U.S. military; and all operators as defined in 14 CFR 91.147. (b) All individuals who perform, either directly or by contract, a safety-sensitive function listed in subpart E or subpart F of this part. (c) All part 145 certificate holders who perform safety-sensitive functions and elect to implement a drug and alcohol testing program under this part. (d) All contractors who elect to implement a drug and alcohol testing program under this part. Sec. 120.3 Purpose. The purpose of this part is to establish a program designed to help prevent accidents and injuries resulting from the use of prohibited drugs or the misuse of alcohol by employees who perform safety- sensitive functions in aviation. Sec. 120.5 Procedures. Each employer having a drug and alcohol testing program under this part must ensure that all drug and alcohol testing conducted pursuant to this part complies with the procedures set forth in 49 CFR part 40. Sec. 120.7 Definitions. For the purposes of this part, the following definitions apply: (a) Accident means an occurrence associated with the operation of an aircraft which takes place between the time any individual boards the aircraft with the intention of flight and all such individuals have disembarked, and in which any individual suffers death or serious injury, or in which the aircraft receives substantial damage. (b) Alcohol means the intoxicating agent in beverage alcohol, ethyl alcohol, or other low molecular weight alcohols, including methyl or isopropyl alcohol. (c) 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 subpart F of this part. (d) Alcohol use means the consumption of any beverage, mixture, or preparation, including any medication, containing alcohol. (e) Contractor is an individual or company that performs a safety- sensitive function by contract for an employer or another contractor. (f) Covered employee means an individual who performs, either directly or by contract, a safety-sensitive function listed in Sec. Sec. 120.105 and 120.215 for an employer (as defined in paragraph (i) of this section). For purposes of pre-employment testing only, the term ``covered employee'' includes an individual applying to perform a safety-sensitive function. (g) DOT agency means an agency (or ``operating administration'') of the United States Department of Transportation administering regulations requiring drug testing (14 CFR part 61 et al.; 46 CFR part 16; 49 CFR parts 199, 219, and 382) in accordance with 49 CFR part 40. (h) Employee is an individual who is hired, either directly or by contract, to perform a safety-sensitive function for an employer, as defined in paragraph (i) of this section. An employee is also an individual who transfers into a position to perform a safety-sensitive function for an employer. (i) Employer is a part 119 certificate holder with authority to operate under parts 121 and/or 135 of this chapter, an operator as defined in Sec. 91.147 of this chapter, or an air traffic control facility not operated by the FAA or by or under contract to the U.S. Military. An employer may use a contract employee who is not included under that employer's FAA-mandated drug testing [[Page 22654]] program to perform a safety-sensitive function only if that contract employee is included under the contractor's FAA-mandated drug testing program and is performing a safety-sensitive function on behalf of that contractor (i.e., within the scope of employment with the contractor.) (j) Hire means retaining an individual for a safety-sensitive function as a paid employee, as a volunteer, or through barter or other form of compensation. (k) Performing (a safety-sensitive function): an employee is considered to be performing a safety-sensitive function during any period in which he or she is actually performing, ready to perform, or immediately available to perform such function. (l) Positive rate for random drug testing means the number of verified positive results for random drug tests conducted under subpart E of this part, plus the number of refusals of random drug tests required by subpart E of this part, divided by the total number of random drug test results (i.e., positives, negatives, and refusals) under subpart E of this part. (m) Prohibited drug means marijuana, cocaine, opiates, phencyclidine (PCP), and amphetamines, as specified in 49 CFR 40.85. (n) Refusal to submit to alcohol test means that a covered employee has engaged in conduct including but not limited to that described in 49 CFR 40.261, or has failed to remain readily available for post- accident testing as required by subpart F of this part. (o) Refusal to submit to drug test means that an employee engages in conduct including but not limited to that described in 49 CFR 40.191. (p) Safety-sensitive function means a function listed in Sec. Sec. 120.105 and 120.215. (q) Verified negative drug test result means a drug test result from an HHS-certified laboratory that has undergone review by an MRO and has been determined by the MRO to be a negative result. (r) Verified positive drug test result means a drug test result from an HHS-certified laboratory that has undergone review by an MRO and has been determined by the MRO to be a positive result. (s) Violation rate for random alcohol testing means the number of 0.04, and above, random alcohol confirmation test results conducted under subpart F of this part, plus the number of refusals of random alcohol tests required by subpart F of this part, divided by the total number of random alcohol screening tests (including refusals) conducted under subpart F of this part. Subpart B--Individuals Certificated Under Parts 61, 63, and 65 Sec. 120.11 Refusal to submit to a drug or alcohol test by a Part 61 certificate holder. (a) This section applies to all individuals who hold a certificate under part 61 of this chapter and who are subject to drug and alcohol testing under this part. (b) Refusal by the holder of a certificate issued under part 61 of this chapter to take a drug or alcohol test required under the provisions of this part is grounds for: (1) Denial of an application for any certificate, rating, or authorization issued under part 61 of this chapter for a period of up to 1 year after the date of such refusal; and (2) Suspension or revocation of any certificate, rating, or authorization issued under part 61 of this chapter. Sec. 120.13 Refusal to submit to a drug or alcohol test by a Part 63 certificate holder. (a) This section applies to all individuals who hold a certificate under part 63 of this chapter and who are subject to drug and alcohol testing under this part. (b) Refusal by the holder of a certificate issued under part 63 of this chapter to take a drug or alcohol test required under the provisions of this part is grounds for: (1) Denial of an application for any certificate, rating, or authorization issued under part 63 of this chapter for a period of up to 1 year after the date of such refusal; and (2) Suspension or revocation of any certificate, rating, or authorization issued under part 63 of this chapter. Sec. 120.15 Refusal to submit to a drug or alcohol test by a Part 65 certificate holder. (a) This section applies to all individuals who hold a certificate under part 65 of this chapter and who are subject to drug and alcohol testing under this part. (b) Refusal by the holder of a certificate issued under part 65 of this chapter to take a drug or alcohol test required under the provisions of this part is grounds for: (1) Denial of an application for any certificate, rating, or authorization issued under part 65 of this chapter for a period of up to 1 year after the date of such refusal; and (2) Suspension or revocation of any certificate, rating, or authorization issued under part 65 of this chapter. Subpart C--Air Traffic Controllers Sec. 120.17 Use of prohibited drugs. (a) Each employer shall provide each employee performing a function listed in subpart E of this part, and his or her supervisor, with the training specified in that subpart. No employer may use any contractor to perform an air traffic control function unless that contractor provides each of its employees performing that function for the employer, and his or her supervisor, with the training specified in subpart E of this part. (b) No employer may knowingly use any individual to perform, nor may any individual perform for an employer, either directly or by contract, any air traffic control function while that individual has a prohibited drug, as defined in subpart E of this part, in his or her system. (c) No employer shall knowingly use any individual to perform, nor may any individual perform for an employer, either directly or by contract, any air traffic control function if the individual has a verified positive drug test result on, or has refused to submit to, a drug test required by subpart E of this part and the individual has not met the requirements of subpart E of this part for returning to the performance of safety-sensitive duties. (d) Each employer shall test each of its employees who perform any air traffic control function in accordance with subpart E of this part. No employer may use any contractor to perform any air traffic control function unless that contractor tests each employee performing such a function for the employer in accordance with subpart E of this part. Sec. 120.19 Misuse of alcohol. (a) This section applies to covered 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 US military. (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. [[Page 22655]] (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 subpart F 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. A covered employee may not refuse to submit to any alcohol test required under subpart F of this part. An employer may not permit an employee who refuses to submit to such a test to perform or continue to perform safety-sensitive functions. Sec. 120.21 Testing for alcohol. (a) Each air traffic control facility not operated by the FAA or the U.S. military must establish an alcohol testing program in accordance with the provisions of subpart F of this part. (b) No employer shall use any individual who meets the definition of covered employee in subpart A of this part to perform a safety- sensitive function listed in subpart F of this part unless that individual is subject to testing for alcohol misuse in accordance with the provisions of that subpart. Subpart D--Part 119 Certificate Holders Authorized To Conduct Operations under Part 121 or Part 135 or Operators Under Sec. 91.147 of This Chapter and Safety-Sensitive Employees Sec. 120.31 Prohibited drugs. (a) Each certificate holder or operator shall provide each employee performing a function listed in subpart E of this part, and his or her supervisor, with the training specified in that subpart. (b) No certificate holder or operator may use any contractor to perform a function listed in subpart E of this part unless that contractor provides each of its employees performing that function for the certificate holder or operator, and his or her supervisor, with the training specified in that subpart. Sec. 120.33 Use of prohibited drugs. (a) This section applies to individuals who perform a function listed in subpart E of this part for a certificate holder or operator. For the purpose of this section, an individual who performs such a function pursuant to a contract with the certificate holder or the operator is considered to be performing that function for the certificate holder or the operator. (b) No certificate holder or operator may knowingly use any individual to perform, nor may any individual perform for a certificate holder or an operator, either directly or by contract, any function listed in subpart E of this part while that individual has a prohibited drug, as defined in that subpart, in his or her system. (c) No certificate holder or operator shall knowingly use any individual to perform, nor shall any individual perform for a certificate holder or operator, either directly or by contract, any safety-sensitive function if that individual has a verified positive drug test result on, or has refused to submit to, a drug test required by subpart E of this part and the individual has not met the requirements of that subpart for returning to the performance of safety-sensitive duties. Sec. 120.35 Testing for prohibited drugs. (a) Each certificate holder or operator shall test each of its employees who perform a function listed in subpart E of this part in accordance with that subpart. (b) Except as provided in paragraph (c) of this section, no certificate holder or operator may use any contractor to perform a function listed in subpart E of this part unless that contractor tests each employee performing such a function for the certificate holder or operator in accordance with that subpart. (c) If a certificate holder conducts an on-demand operation into an airport at which no maintenance providers are available that are subject to the requirements of subpart E of this part and emergency maintenance is required, the certificate holder may use individuals not meeting the requirements of paragraph (b) of this section to provide such emergency maintenance under both of the following conditions: (1) The certificate holder must give written notification of the emergency maintenance to the Drug Abatement Program Division, AAM-800, 800 Independence Avenue, SW., Washington, DC 20591, within 10 days after being provided same in accordance with this paragraph. A certificate holder must retain copies of all such written notifications for two years. (2) The aircraft must be reinspected by maintenance personnel who meet the requirements of paragraph (b) of this section when the aircraft is next at an airport where such maintenance personnel are available. (d) For purposes of this section, emergency maintenance means maintenance that-- (1) Is not scheduled and (2) Is made necessary by an aircraft condition not discovered prior to the departure for that location. Sec. 120.37 Misuse of alcohol. (a) General. This section applies to covered employees who perform a function listed in subpart F of this part for a certificate holder. For the purpose of this section, an individual who meets the definition of covered employee in subpart F of this part 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 to 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 [[Page 22656]] 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 subpart F 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. A covered employee must not refuse to submit to any alcohol test required under subpart F of this part. A certificate holder must not permit an employee who refuses to submit to such a test to perform or continue to perform safety-sensitive functions. Sec. 120.39 Testing for alcohol. (a) Each certificate holder must establish an alcohol testing program in accordance with the provisions of subpart F of this part. (b) Except as provided in paragraph (c) of this section, no certificate holder or operator may use any individual who meets the definition of covered employee in subpart A of this part to perform a safety-sensitive function listed in that subpart F of this part unless that individual is subject to testing for alcohol misuse in accordance with the provisions of that subpart. (c) If a certificate holder conducts an on-demand operation into an airport at which no maintenance providers are available that are subject to the requirements of subpart F of this part and emergency maintenance is required, the certificate holder may use individuals not meeting the requirements of paragraph (b) of this section to provide such emergency maintenance under both of the following conditions: (1) The certificate holder must give written notification of the emergency maintenance to the Drug Abatement Program Division, AAM-800, 800 Independence Avenue, SW., Washington, DC 20591, within 10 days after being provided same in accordance with this paragraph. A certificate holder must retain copies of all such written notifications for two years. (2) The aircraft must be reinspected by maintenance personnel who meet the requirements of paragraph (b) of this section when the aircraft is next at an airport where such maintenance personnel are available. (d) For purposes of this section, emergency maintenance means maintenance that-- (1) Is not scheduled and (2) Is made necessary by an aircraft condition not discovered prior to the departure for that location. Subpart E--Drug Testing Program Requirements Sec. 120.101 Scope. This subpart contains the standards and components that must be included in a drug testing program required by this part. Sec. 120.103 General. (a) Purpose. The purpose of this subpart is to establish a program designed to help prevent accidents and injuries resulting from the use of prohibited drugs by employees who perform safety-sensitive functions. (b) DOT procedures. (1) Each employer shall ensure that drug testing programs conducted pursuant to 14 CFR parts 65, 91, 121, and 135 comply with the requirements of this subpart and the ``Procedures for Transportation Workplace Drug Testing Programs'' published by the Department of Transportation (DOT) (49 CFR part 40). (2) An employer may not use or contract with any drug testing laboratory that is not certified by the Department of Health and Human Services (HHS) under the National Laboratory Certification Program. (c) Employer responsibility. As an employer, you are responsible for all actions of your officials, representatives, and service agents in carrying out the requirements of this subpart and 49 CFR part 40. (d) Applicable Federal Regulations. The following applicable regulations appear in 49 CFR or 14 CFR: (1) 49 CFR Part 40--Procedures for Transportation Workplace Drug Testing Programs (2) 14 CFR: (i) Sec. 67.107--First-Class Airman Medical Certificate, Mental. (ii) Sec. 67.207--Second-Class Airman Medical Certificate, Mental. (iii) Sec. 67.307--Third-Class Airman Medical Certificate, Mental. (iv) Sec. 91.147--Passenger carrying flight for compensation or hire. (e) Falsification. No individual may make, or cause to be made, any of the following: (1) Any fraudulent or intentionally false statement in any application of a drug testing program. (2) Any fraudulent or intentionally false entry in any record or report that is made, kept, or used to show compliance with this part. (3) Any reproduction or alteration, for fraudulent purposes, of any report or record required to be kept by this part. Sec. 120.105 Employees who must be tested. Each employee, including any assistant, helper, or individual in a training status, who performs a safety-sensitive function listed in this section directly or by contract (including by subcontract at any tier) for an employer as defined in this subpart must be subject to drug testing under a drug testing program implemented in accordance with this subpart. This includes full-time, part-time, temporary, and intermittent employees regardless of the degree of supervision. The safety-sensitive functions are: (a) Flight crewmember duties. (b) Flight attendant duties. (c) Flight instruction duties. (d) Aircraft dispatcher duties. (e) Aircraft maintenance and preventive maintenance duties. (f) Ground security coordinator duties. (g) Aviation screening duties. (h) Air traffic control duties. Sec. 120.107 Substances for which testing must be conducted. Each employer shall test each employee who performs a safety- sensitive function for evidence of marijuana, cocaine, opiates, phencyclidine (PCP), and amphetamines during each test required by Sec. 120.109. Sec. 120.109 Types of drug testing required. Each employer shall conduct the types of testing described in this section in accordance with the procedures set forth in this subpart and the DOT ``Procedures for Transportation Workplace Drug Testing Programs'' (49 CFR part 40). (a) Pre-employment drug testing. (1) No employer may hire any individual for a safety-sensitive function listed in Sec. 120.105 unless the employer first conducts a pre-employment test and receives a verified negative drug test result for that individual. (2) No employer may allow an individual to transfer from a nonsafety-sensitive to a safety-sensitive function unless the employer first conducts a pre-employment test and receives a verified negative drug test result for the individual. (3) Employers must conduct another pre-employment test and receive a verified negative drug test result before hiring or transferring an individual into a safety-sensitive function if more than 180 days elapse between conducting the pre-employment test required by paragraphs (a)(1) or (2) of this section and hiring or transferring the individual into a safety-sensitive function, resulting in that individual being brought under an FAA drug testing program. (4) If the following criteria are met, an employer is permitted to conduct a pre- [[Page 22657]] employment test, and if such a test is conducted, the employer must receive a negative test result before putting the individual into a safety-sensitive function: (i) The individual previously performed a safety-sensitive function for the employer and the employer is not required to pre-employment test the individual under paragraphs (a)(1) or (2) of this section before putting the individual to work in a safety-sensitive function; (ii) The employer removed the individual from the employer's random testing program conducted under this subpart for reasons other than a verified positive test result on an FAA-mandated drug test or a refusal to submit to such testing; and (iii) The individual will be returning to the performance of a safety-sensitive function. (5) Before hiring or transferring an individual to a safety- sensitive function, the employer must advise each individual that the individual will be required to undergo pre-employment testing in accordance with this subpart, to determine the presence of marijuana, cocaine, opiates, phencyclidine (PCP), and amphetamines, or a metabolite of those drugs in the individual's system. The employer shall provide this same notification to each individual required by the employer to undergo pre-employment testing under paragraph (a)(4) of this section. (b) Random drug testing. (1) Except as provided in paragraphs (b)(2) through (b)(4) of this section, the minimum annual percentage rate for random drug testing shall be 50 percent of covered employees. (2) The Administrator's decision to increase or decrease the minimum annual percentage rate for random drug testing is based on the reported positive rate for the entire industry. All information used for this determination is drawn from the statistical reports required by Sec. 120.119. 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 positive rate. Each year, the Administrator will publish in the Federal Register the minimum annual percentage rate for random drug testing of covered employees. The new minimum annual percentage rate for random drug testing will be applicable starting January 1 of the calendar year following publication. (3) When the minimum annual percentage rate for random drug 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 subpart for two consecutive calendar years indicate that the reported positive rate is less than 1.0 percent. (4) When the minimum annual percentage rate for random drug testing is 25 percent, and the data received under the reporting requirements of this subpart for any calendar year indicate that the reported positive rate is equal to or greater than 1.0 percent, the Administrator will increase the minimum annual percentage rate for random drug testing to 50 percent of all covered employees. (5) The selection of employees for random drug 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) As an employer, you must select and test a percentage of employees at least equal to the minimum annual percentage rate each year. (i) As an employer, to determine whether you have met the minimum annual percentage rate, you must divide the number of random testing results for safety-sensitive employees by the average number of safety- sensitive employees eligible for random testing. (A) To calculate whether you have met the annual minimum percentage rate, count all random positives, random negatives, and random refusals as your ``random testing results.'' (B) To calculate the average number of safety-sensitive employees eligible for random testing throughout the year, add the total number of safety-sensitive employees eligible for testing during each random testing period for the year and divide that total by the number of random testing periods. Only safety-sensitive employees are to be in an employer's random testing pool, and all safety-sensitive employees must be in the random pool. If you are an employer conducting random testing more often than once per month (e.g., you select daily, weekly, bi- weekly) you do not need to compute this total number of safety- sensitive employees more than on a once per month basis. (ii) As an employer, you may use a service agent to perform random selections for you, and your safety-sensitive employees may be part of a larger random testing pool of safety-sensitive employees. However, you must ensure that the service agent you use is testing at the appropriate percentage established for your industry and that only safety-sensitive employees are in the random testing pool. For example: (A) If the service agent has your employees in a random testing pool for your company alone, you must ensure that the testing is conducted at least at the minimum annual percentage rate under this part. (B) If the service agent has your employees in a random testing pool combined with other FAA-regulated companies, you must ensure that the testing is conducted at least at the minimum annual percentage rate under this part. (C) If the service agent has your employees in a random testing pool combined with other DOT-regulated companies, you must ensure that the testing is conducted at least at the highest rate required for any DOT-regulated company in the pool. (7) Each employer shall ensure that random drug tests conducted under this subpart are unannounced and that the dates for administering random tests are spread reasonably throughout the calendar year. (8) Each employer shall require that each safety-sensitive employee who is notified of selection for random drug testing proceeds to the collection site immediately; provided, however, that if the employee is performing a safety-sensitive function at the time of the notification, the employer shall instead ensure that the employee ceases to perform the safety-sensitive function and proceeds to the collection site as soon as possible. (9) If a given covered employee is subject to random drug testing under the drug testing rules of more than one DOT agency, the employee shall be subject to random drug testing at the percentage rate established for the calendar year by the DOT agency regulating more than 50 percent of the employee's function. (10) If an employer is required to conduct random drug testing under the drug testing rules of more than one DOT agency, the employer may-- (i) Establish separate pools for random selection, with each pool containing the covered employees who are subject to testing at the same required rate; or (ii) Randomly select covered employees for testing at the highest percentage rate established for the calendar year by any DOT agency to which the employer is subject. [[Page 22658]] (11) An employer required to conduct random drug testing under the anti-drug rules of more than one DOT agency shall provide each such agency access to the employer's records of random drug testing, as determined to be necessary by the agency to ensure the employer's compliance with the rule. (c) Post-accident drug testing. Each employer shall test each employee who performs a safety-sensitive function for the presence of marijuana, cocaine, opiates, phencyclidine (PCP), and amphetamines, or a metabolite of those drugs in the employee's system if that employee's performance either contributed to an accident or can not be completely discounted as a contributing factor to the accident. The employee shall be tested as soon as possible but not later than 32 hours after the accident. The decision not to administer a test under this section must be based on a determination, using the best information available at the time of the determination, that the employee's performance could not have contributed to the accident. The employee shall submit to post-accident testing under this section. (d) Drug testing based on reasonable cause. Each employer must test each employee who performs a safety-sensitive function and who is reasonably suspected of having used a prohibited drug. The decision to test must be based on a reasonable and articulable belief that the employee is using a prohibited drug on the basis of specific contemporaneous physical, behavioral, or performance indicators of probable drug use. At least two of the employee's supervisors, one of whom is trained in detection of the symptoms of possible drug use, must substantiate and concur in the decision to test an employee who is reasonably suspected of drug use; except that in the case of an employer, other than a part 121 certificate holder, who employs 50 or fewer employees who perform safety-sensitive functions, one supervisor who is trained in detection of symptoms of possible drug use must substantiate the decision to test an employee who is reasonably suspected of drug use. (e) Return to duty drug testing. Each employer shall ensure that before an individual is returned to duty to perform a safety-sensitive function after refusing to submit to a drug test required by this subpart or receiving a verified positive drug test result on a test conducted under this subpart the individual shall undergo a return-to- duty drug test. No employer shall allow an individual required to undergo return-to-duty testing to perform a safety-sensitive function unless the employer has received a verified negative drug test result for the individual. The test cannot occur until after the SAP has determined that the employee has successfully complied with the prescribed education and/or treatment. (f) Follow-up drug testing. (1) Each employer shall implement a reasonable program of unannounced testing of each individual who has been hired to perform or who has been returned to the performance of a safety-sensitive function after refusing to submit to a drug test required by this subpart or receiving a verified positive drug test result on a test conducted under this subpart. (2) The number and frequency of such testing shall be determined by the employer's Substance Abuse Professional conducted in accordance with the provisions of 49 CFR part 40, but shall consist of at least six tests in the first 12 months following the employee's return to duty. (3) The employer must direct the employee to undergo testing for alcohol in accordance with subpart F of this part, in addition to drugs, if the Substance Abuse Professional determines that alcohol testing is necessary for the particular employee. Any such alcohol testing shall be conducted in accordance with the provisions of 49 CFR part 40. (4) Follow-up testing shall not exceed 60 months after the date the individual begins to perform or returns to the performance of a safety- sensitive function. The Substance Abuse Professional may terminate the requirement for follow-up testing at any time after the first six tests have been conducted, if the Substance Abuse Professional determines that such testing is no longer necessary. Sec. 120.111 Administrative and other matters. (a) MRO record retention requirements. (1) Records concerning drug tests confirmed positive by the laboratory shall be maintained by the MRO for 5 years. Such records include the MRO copies of the custody and control form, medical interviews, documentation of the basis for verifying as negative test results confirmed as positive by the laboratory, any other documentation concerning the MRO's verification process. (2) Should the employer change MRO's for any reason, the employer shall ensure that the former MRO forwards all records maintained pursuant to this rule to the new MRO within ten working days of receiving notice from the employer of the new MRO's name and address. (3) Any employer obtaining MRO services by contract, including a contract through a C/TPA, shall ensure that the contract includes a recordkeeping provision that is consistent with this paragraph, including requirements for transferring records to a new MRO. (b) Access to records. The employer and the MRO shall permit the Administrator or the Administrator's representative to examine records required to be kept under this subpart and 49 CFR part 40. The Administrator or the Administrator's representative may require that all records maintained by the service agent for the employer must be produced at the employer's place of business. (c) Release of drug testing information. An employer shall release information regarding an employee's drug testing results, evaluation, or rehabilitation to a third party in accordance with 49 CFR part 40. Except as required by law, this subpart, or 49 CFR part 40, no employer shall release employee information. (d) Refusal to submit to testing. Each employer must notify the FAA within 2 working days of any employee who holds a certificate issued under part 61, part 63, or part 65 of this chapter who has refused to submit to a drug test required under this subpart. Notification must be sent to: Federal Aviation Administration, Office of Aerospace Medicine, Drug Abatement Division (AAM-800), 800 Independence Avenue, SW., Washington, DC 20591, or by fax to (202) 267-5200. (e) Permanent disqualification from service. (1) An employee who has verified positive drug test results on two drug tests required by this subpart of this chapter, and conducted after September 19, 1994, is permanently precluded from performing for an employer the safety- sensitive duties the employee performed prior to the second drug test. (2) An employee who has engaged in prohibited drug use during the performance of a safety-sensitive function after September 19, 1994 is permanently precluded from performing that safety-sensitive function for an employer. (f) DOT management information system annual reports. Copies of any annual reports submitted to the FAA under this subpart must be maintained by the employer for a minimum of 5 years. [[Page 22659]] Sec. 120.113 Medical Review Officer, Substance Abuse Professional, and Employer Responsibilities. (a) The employer shall designate or appoint a Medical Review Officer (MRO) who shall be qualified in accordance with 49 CFR part 40 and shall perform the functions set forth in 49 CFR part 40 and this subpart. If the employer does not have a qualified individual on staff to serve as MRO, the employer may contract for the provision of MRO services as part of its drug testing program. (b) Medical Review Officer (MRO). The MRO must perform the functions set forth in subpart G of 49 CFR part 40, and subpart E of this part. The MRO shall not delay verification of the primary test result following a request for a split specimen test unless such delay is based on reasons other than the fact that the split specimen test result is pending. If the primary test result is verified as positive, actions required under this rule (e.g., notification to the Federal Air Surgeon, removal from safety-sensitive position) are not stayed during the 72-hour request period or pending receipt of the split specimen test result. (c) Substance Abuse Professional (SAP). The SAP must perform the functions set forth in 49 CFR part 40, subpart O. (d) Additional Medical Review Officer, Substance Abuse Professional, and Employer Responsibilities Regarding 14 CFR part 67 Airman Medical Certificate Holders. (1) As part of verifying a confirmed positive test result or refusal to submit to a test, the MRO must ask and the individual must answer whether he or she holds an airman medical certificate issued under 14 CFR part 67 or would be required to hold an airman medical certificate to perform a safety- sensitive function for the employer. If the individual answers in the affirmative to either question, in addition to notifying the employer in accordance with 49 CFR part 40, the MRO must forward to the Federal Air Surgeon, at the address listed in paragraph (d)(5) of this section, the name of the individual, along with identifying information and supporting documentation, within 2 working days after verifying a positive drug test result or refusal to submit to a test. (2) During the SAP interview required for a verified positive test result or a refusal to submit to a test, the SAP must ask and the individual must answer whether he or she holds or would be required to hold an airman medical certificate issued under 14 CFR part 67 to perform a safety-sensitive function for the employer. If the individual answers in the affirmative, the individual must obtain an airman medical certificate issued by the Federal Air Surgeon dated after the verified positive drug test result date or refusal to test date. After the individual obtains this airman medical certificate, the SAP may recommend to the employer that the individual may be returned to a safety-sensitive position. The receipt of an airman medical certificate does not alter any obligations otherwise required by 49 CFR part 40 or this subpart. (3) An employer must forward to the Federal Air Surgeon within 2 working days of receipt, copies of all reports provided to the employer by a SAP regarding the following: (i) An individual who the MRO has reported to the Federal Air Surgeon under Sec. 120.113 (d)(1); or (ii) An individual who the employer has reported to the Federal Air Surgeon under Sec. 120.111(d). (4) The employer must not permit an employee who is required to hold an airman medical certificate under 14 CFR part 67 to perform a safety-sensitive duty to resume that duty until the employee has: (i) Been issued an airman medical certificate from the Federal Air Surgeon after the date of the verified positive drug test result or refusal to test; and (ii) Met the return to duty requirements in accordance with 49 CFR part 40. (5) Reports required under this section shall be forwarded to the Federal Air Surgeon, Federal Aviation Administration, Office of Aerospace Medicine, Attn: Drug Abatement Division (AAM-800), 800 Independence Avenue, SW., Washington, DC 20591. (6) MROs, SAPs, and employers who send reports to the Federal Air Surgeon must keep a copy of each report for 5 years. Sec. 120.115 Employee Assistance Program (EAP). (a) The employer shall provide an EAP for employees. The employer may establish the EAP as a part of its internal personnel services or the employer may contract with an entity that will provide EAP services to an employee. Each EAP must include education and training on drug use for employees and training for supervisors making determinations for testing of employees based on reasonable cause. (b) EAP education program. (1) Each EAP education program must include at least the following elements: (i) Display and distribution of informational material; (ii) Display and distribution of a community service hot-line telephone number for employee assistance; and (iii) Display and distribution of the employer's policy regarding drug use in the workplace. (2) The employer's policy shall include information regarding the consequences under the rule of using drugs while performing safety- sensitive functions, receiving a verified positive drug test result, or refusing to submit to a drug test required under the rule. (c) EAP training program. (1) Each employer shall implement a reasonable program of initial training for employees. The employee training program must include at least the following elements: (i) The effects and consequences of drug use on individual health, safety, and work environment;