Legal Interpretations
Ray-Rose Aircraft Services 2016
Summary
The Question
What are "specific, contemporaneous physical, behavioral, or performance indicators of probable drug use" for reasonable cause drug testing under 14 CFR 120.109?
Background
Rose Aircraft Services conducted reasonable cause drug tests on employees. The FAA Drug Abatement Division determined its trained supervisor did not meet the requirement of 14 CFR 120.109(d) and directed the company's definition request to the Office of the Chief Counsel.
The FAA’s Interpretation
The FAA explained the term through the rule, its rulemaking preamble, and an FAA form. Under 14 CFR 120.109(d), the decision to test must rest on a reasonable and articulable belief, based on such indicators, that the employee is using a prohibited drug. The preamble describes changes in character or behavior, normally marked by mood swings and changes in appearance, attitude, and speech; the FAA's Reasonable Cause/Reasonable Suspicion Documentation Form offers a checklist.
- Requester
- Ray
- Organization
- Rose Aircraft Services
- Issued
- August 29, 2016
- Subject
- Drug & Alcohol Testing
Regulations Cited
- 14 CFR 120.109
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Page 2
I hope that this response is helpful to you. If you need more information or have additional questions, please do not hesitate to contact my staff at (202) 267-3073. This response was prepared by Neal O'Hara, an attorney in the Office of the Chief Counsel, Regulations Division.
Sincerely,
dCKiCu~
Lorelei Peter
Assistant Chief Counsel for Regulations
Page 3
DATE:
TO:
FROM:
RE:
Rose Aircraft Services, Inc.
Intennountain Municipal Airport (M39)
132 Flight Lane, P.O. Box 1850
Mena, Arkansas 71953
Telephone 479-394-2551or800-392-2551
FAX 479-394-5391
wv..rw.roseaircraft.com
April 18, 2016
FAA/Office of the Chief Counsel
Scott Ray
Legal Interpretation
We had requested the F AA .Drμg Abate Division to define "specific, contemporaneous physical, beh~vioral , or pe1:~ohnance indicators of probable drug use" as stated in regulation 1~ CFR 120..1,09. . . . . ·.
We received the response [copi~d bdo~v] from that division and are now requesting this legal interpretation from your office as directed. .
We would appreciate your interpretation so we can resolve this issue as soon as possible.
Sincerely,
Scott Ray,
H.R. Director
Dear Mr. Ray:
Unfortunately, l cannot provide you with a legal interpretation on behalf of the agency. Please submit your request to the following office:
. .
FAA/Office of the Chief Counsel
International Law, Legislation, & Regulations Division, AGC-200 800 Independence Avenue>SW.
Washington, DC 20~91 · ·
Page 4
When sending your request, I would recommend that you include some additional details to explain the situation that transpired around the tests conducted on March 26: 2015, as it relates to the detennination made for conducting the reasonable cause drug testing. Based on our inspector's review of the information provided during your inspection, we determined that your trained supervisor did not meet the requirement to conduct DOT/FAA-mandated reasonable cause drug testing based on the requirement in 14 CFR § 120.109(d).
To help employers train supervisors, or assist the supervisor in making and documenting the decision whether to condi:lct a DOT reasonable cause/suspicion test, we developed a Reasonable Cause/Reasonable Suspicion D0.cnmentation Form on our web site, Keep in mind that when the trained supervisor observes the employee and the behaviors do not meet the indicators described in part 120 or on the sample form, you do have the option of conducting a company test under your own authority.
Please let us know if you have any additional questions.
Sincerely,
Vicky Dunne
Manager, Program Policy Branch
Drug Abatement Division
Ofc: 202-267-8442
Fax: 202-267-5200
From: Scott Ray [scott@roseaircraft.com]
Sent: Tuesday, April 12, 2016 9:01 AM
To: 9-AWA-AVS-AAM800-DrugAbatement (FAA)
Cc: jkrose@roseaircraft.com
Subject: Question regarding interpretation of regulation Please define "specific, contemporaneous physical, behavioral, or performance indicators of probable drug use" as stated in regulation 14 CFR 120.109.
Scott Ray
Human Resources Manager
Rose Aircraft Services, Inc.
PO Box 1850
132 Flight Lane
Mena, AR 71953
Phone: 479-394-2551
1 am also enclosing the response to the FAA Drug Abatement Division l was requested to send to that office regarding why our company felt the need to perform the DOT reasonable cause/suspicion test on the identified employees.
Snapshot retrieved August 6, 2026.