Federal Register, Volume 77 Issue 127 (Monday, July 2, 2012)

[Federal Register Volume 77, Number 127 (Monday, July 2, 2012)]
[Proposed Rules]
[Pages 39194-39201]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-16009]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 120

[Docket No.: FAA-2012-0688; Notice No. 12-04]
RIN 2120-AK01

Combined Drug and Alcohol Testing Programs

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: This rulemaking would allow air carrier operators and commuter
or on-demand operators that also conduct commercial air tour operations
to combine the drug and alcohol testing required for each operation
into one testing program. The current rule requires those operators to
conduct separate testing programs for their air

[[Page 39195]]

tour operations. This results in an unnecessary duplication of effort.
The intended effect of this rulemaking is to decrease operating costs
by eliminating the requirement for duplicate programs while maintaining
the level of safety intended by the current drug and alcohol testing
regulations. This proposal would also clarify existing instructions
within the rule, correct an inadvertent typographical error, clarify an
existing requirement by rearranging its numerical order, and remove
language that describes a practice that has been discontinued.

DATES: Send comments on or before August 31, 2012.

ADDRESSES: Send comments identified by docket number FAA-2012-0688
using any of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your
comments electronically.
Mail: Send comments to Docket Operations, M-30; U.S.
Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room
W12-140, West Building Ground Floor, Washington, DC 20590-0001.
Hand Delivery or Courier: Take comments to Docket
Operations in Room W12-140 of the West Building Ground Floor at 1200
New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.
Fax: Fax comments to Docket Operations at 202-493-2251.
Privacy: The FAA will post all comments it receives, without
change, to http://www.regulations.gov, including any personal
information the commenter provides. Using the search function of the
docket Web site, anyone can find and read the electronic form of all
comments received into any FAA docket, including the name of the
individual sending the comment (or signing the comment for an
association, business, labor union, etc.). DOT's complete Privacy Act
Statement can be found in the Federal Register published on April 11,
2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov.
Docket: Background documents or comments received may be read at
http://www.regulations.gov at any time. Follow the online instructions
for accessing the docket or go to the Docket Operations in Room W12-140
of the West Building Ground Floor at 1200 New Jersey Avenue SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: For technical questions concerning
this action, 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; email: drugabatement@faa.gov.
For legal questions concerning this action, contact Neal O'Hara,
Attorney, Regulations Division, AGC-240, Federal Aviation
Administration, 800 Independence Avenue SW., Washington, DC 20591;
telephone (202) 267-5348.

SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

The FAA's authority to issue rules on aviation safety is found in
Title 49 of the 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 Agency's authority.
This rulemaking is promulgated under the authority described in
Subtitle VII, Part A Chapter 451, Section 45102--Alcohol and Controlled
Substances Testing. Under that section, the FAA is charged with
prescribing regulations for air carriers to establish and to conduct
pre-employment, reasonable suspicion, random and post-accident drug and
alcohol testing. Parts of this rule, for example those sections dealing
with contract air traffic controllers, were promulgated under the FAA's
general rulemaking authority in 40 U.S.C. 44701(a)(5). This regulation
is within the scope of that authority.

I. Overview of Proposed Rule

Some part 121 air carrier operators and part 135 flight-for-hire
and on-demand operators also conduct commercial air tours. Parts 121
and 135 each contain requirements for drug and alcohol testing and,
until 2007, commercial air tour operators were required to be tested
for drugs and alcohol under those parts.
In 2007, the National Air Tour Safety Standards rule (72 FR 6884,
February 13, 2007) established a separate subpart in part 91 to govern
commercial air tour operators. That rule contained requirements for
drug and alcohol testing for commercial air tour operations that were
separate from, and in addition to the testing required by parts 121 and
135. This proposal is intended to give part 121 and 135 operators with
commercial air tour operations the option of administering one drug and
alcohol testing program for both operations. The intent of this action
is to lessen the administrative burden on such operators. In addition,
this rulemaking would make it clear that operators must obtain a Letter
of Authorization from the local Flight Standards District Office in
order to conduct air tour operations. It would correct the omission of
a reference indicating that on-duty use of alcohol is grounds for
permanent disqualification from service. That reference was
inadvertently left out of the May 2009 Drug and Alcohol Testing Program
final rule. This rulemaking would reorganize existing rule text to
alleviate any confusion about the requirement that supervisory
training, as well as employee training, must be documented as part of
each employer's employee assistance program (EAP). Finally, this
rulemaking would make it clear that the agency's practice of approving
the employer's drug and alcohol testing plan has been discontinued

II. Background

On May 14, 2009, the FAA published a final rule titled ``Drug and
Alcohol Testing Program'' (74 FR 22653) that moved the drug and alcohol
testing regulations into a new part 120.
Part 120 of Title 14 prescribes, in pertinent part, a drug and
alcohol testing program designed to prevent accidents and injuries that
result from the use of prohibited drugs and the misuse of alcohol.
Specifically, the rule requires implementation of a drug and alcohol
testing program by three groups of operators:
[ssquf] Part 119 certificate holders authorized to conduct part 121
operations.
[ssquf] Part 119 certificate holders authorized to conduct 135
operations.
[ssquf] Air Tour operators defined in Sec. 91.147.
These requirements are meant to ensure that any person who performs
safety-sensitive functions, directly or by contract (including
subcontractor at any tier), is subject to drug and alcohol testing.
Under the current rules, operators who are conducting part 121 or
part 135 operations and also conducting commercial air tour operations
must implement separate drug and alcohol testing programs as if each
operation is conducted by different companies. These operators are
petitioning the FAA for exemption from the requirement to maintain two
drug and alcohol testing programs. They are asking to have a single
FAA-regulated drug and alcohol testing program because having two such
programs often requires testing the same employees twice. This
duplication of testing unnecessarily adds administrative and financial
burdens for the operator. The operators also suggest that the
additional burden of

[[Page 39196]]

maintaining two separate testing programs yields no corresponding
increase in safety for the public.
Between 2008 and 2010 the FAA has granted approximately 50
exemptions allowing operators to implement a single testing program.
Given the large number of exemptions that the Agency has granted, the
FAA believes it is appropriate to simply amend the existing rule. This
approach relieves operators from seeking an operator-specific
exemption. In granting these exemptions, the FAA has recognized that in
most cases, the same employees and equipment are used interchangeably
between the part 121 or 135 operation and commercial air tour
operation. Therefore, the FAA has found that when a part 119
certificate holder operates both a part 121 or a part 135 operation and
a Sec. 91.147 air tour operation, combining the two testing programs
maintains a level of safety equivalent to that provided by the current
regulations. Under one testing program employees are still subject to
drug and alcohol testing in accordance with part 120.

III. Discussion of the Proposal

This proposal would give part 121 and 135 operators the option to
combine the drug and alcohol testing programs for a part 121 or part
135 operation with the program for a part 91 commercial air tour
operation. It is expected that this proposal would relieve the existing
regulatory burden of requiring a part 121 or 135 operator to maintain a
separate testing program for its part 91 commercial air tour operation.
We believe that this will have a positive economic impact.
This proposal would amend Sec. Sec. 120.117 and 120.225 to give a
part 121 or part 135 operator the option of including its commercial
air tour operation employees under Sec. 91.147 in a combined drug and
alcohol testing program.
The removal of duplicate testing requirements would eliminate an
unnecessary financial burden for the operators while still ensuring the
level of safety required by the current rules. This proposal would also
benefit such operators by eliminating the need to request an exemption
from the FAA to combine drug and alcohol testing programs.
The part 121 or 135 operator is ultimately responsible for
compliance with all requirements of part 120 for both the air carrier
and air tour operations. For example, under a combined program, if the
Sec. 91.147 air tour operator hires a new pilot to conduct only air
tour operations, and the operator fails to conduct the pre-employment
drug test, the part 121 or part 135 operator will be responsible for
the error. Any civil penalties for regulatory violations will be
assessed at the part 121 or part 135 operator level, not at the level
for a part 91 air tour operator. The part 121 or 135 air operator would
be responsible for and would accept all compliance responsibility,
regardless of the type of operation, when choosing to combine testing
programs. This is consistent with the exemptions issued to part 119
certificate holders allowing them to combine their part 121 or part 135
operation drug and alcohol testing program with their Sec. 91.147 air
tour drug and alcohol testing program.
Current Sec. 91.147 specifies that operators intending to begin
commercial air tour operations must obtain a Letter of Authorization.
The current Sec. 120.117, which contains the drug and alcohol testing
requirements that apply to air tour operations, refers to a need for
operators intending to begin commercial air tours to ``register with
the FAA''. This proposal would change that reference in Sec. 120.117
to ``Obtain a Letter of Authorization'' in order to align it with the
wording of Sec. 91.147 and clarify the requirements--to make it clear
that operators must obtain a Letter of Authorization from their local
Flight Standards District Office if they intend to begin commercial air
tour operations. This correction would provide clarity to such
operators in the process of implementing their drug and alcohol testing
program.
Finally, other errors in the Agency's 2009 Drug and Alcohol Testing
Program final rule have been brought to our attention. In Sec.
120.221(b), ``(c)'' was inadvertently omitted in the reference to
Sec. Sec. 120.19 and 120.37. The omitted reference would indicate that
one occurrence of on-duty alcohol use as described in Sec. Sec.
120.19(c) and 120.37(c) carries the consequence of permanent
disqualification from service. We are proposing to correct this error.
Additionally, when we combined part 121 appendices I and J to form part
120, we renumbered the requirements. This reorganization has created
some confusion. The requirement remains such that employers must
include documentation of the training given to both supervisors and
employees in their employee assistance programs. However, the
requirements are currently numbered in such a way that it appears that
employers need only retain employee training records. We propose to
reorder the wording to make the requirement clear that supervisory
training must be documented as well. Finally, in 2004, we discontinued
the practice of approving drug and alcohol testing plans. That language
was never removed from the Code of Federal Regulations. However, we are
proposing to remove it now.

IV. Regulatory Notices and Analyses

Introduction

Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 and Executive Order 13563 direct
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). This portion of the preamble summarizes the FAA's
analysis of the economic impacts of this proposed rule.

Regulatory Evaluation

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 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 proposed rule. The
reasoning for this determination follows:
(1) The proposed rule is voluntary. It does not impose new
regulatory requirements. For entities that choose to follow this
proposed rule, it is likely that regulatory requirements and costs
would be reduced.
(2) The proposed rule is not an economically ``significant
regulatory

[[Page 39197]]

action'' as defined in section 3(f) of Executive Order 12866;
(3) The proposed rule would not have a significant economic impact
on a substantial number of small entities;
(4) The proposed rule would not have a significant effect on
international trade; and
(5) The proposed rule would not impose an unfunded mandate on
state, local, or tribal governments, or on the private sector by
exceeding the monetary threshold identified.
This rulemaking would allow part 119 certificate holders with
operations under part 121 or 135 who also conduct commercial air tour
operations under Sec. 91.147 to combine drug and alcohol testing
programs. The current rule requires the part 121 operator or part 135
operators to conduct a separate testing program for its air tour
operations resulting in an unnecessary duplication of effort. The
intended effect of this rulemaking is to decrease operating costs by
eliminating the requirement of duplicate programs while maintaining the
level of safety required by the current drug and alcohol testing
regulations. In addition, this rulemaking would allow the agency to
clarify that air tour operators must obtain a Letter of Authorization
from the local Flight Standards District Office. This rulemaking would
allow the agency to address the omission of a reference indicating that
on-duty use of alcohol is grounds for permanent disqualification from
service. The reference was inadvertently omitted from the May 2009 Drug
and Alcohol Testing Program final rule. This rulemaking would also
allow the agency to clarify the requirement that documentation of both
employee training as well as supervisory training must be a component
of each employer's employee assistance program (EAP). Finally, this
rulemaking would make it clear that the practice of agency approval of
the employer's drug and alcohol testing plan has been discontinued.
Although the FAA cannot quantify the benefits of the proposed rule,
the FAA believes that the cost savings associated with reducing the
costs of compliance could be significant. The FAA therefore believes
that the proposed rule would be cost beneficial.

Regulatory Flexibility Determination

The Regulatory Flexibility Act of 1980 (RFA) establishes ``as a
principle of regulatory issuance that agencies shall endeavor,
consistent with the objective of the rule and of applicable statutes,
to fit regulatory and informational requirements to the scale of the
businesses, 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.

Size Standards

Size standards for small entities are published by the Small
Business Administration (SBA) on their Web site at http://www.sba.gov/size. The size standards used herein are from ``SBA U.S. Small Business
Administration, Table of Small Business Size Standards, Matched to
North American Industry Classification System Codes''. The Table is
effective November 5, 2010, and uses the 2007 NAICS codes. Scheduled
Passenger Air Transportation is listed in Sector 48-49--Transportation
and Warehousing; Subsector 481--Air Transportation; NAICS Code 48111.
Non-Scheduled Chartered Passenger Air Transportation is listed under
the same Sector and Subsector with NAICS code 481211. In both cases the
small entity size standard is 1,500 employees.
It is estimated that most of the air carriers involved in this type
of activity are small entities. Therefore the proposed rule would
affect a substantial number of small entities.
However, the proposed rule imposes no costs and may result in a
cost reduction for an entity that should choose to use the proposed
rule. Therefore, the FAA certifies that this proposed rule would not
have a significant economic impact on a substantial number of small
entities.

International Trade Impact Assessment

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 proposed rule and determined that
it would have only a domestic impact, and therefore no effect on
international trade.

Unfunded Mandates Assessment

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 $143.1 million in lieu of
$100 million. This proposed rule does not contain such a mandate;
therefore, the requirements of Title II do not apply.

Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
that the FAA consider the impact of paperwork and other information
collection burdens imposed on the public. According to the 1995
amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an
agency may not collect or sponsor the collection of information, nor
may it impose an information collection requirement unless it displays
a currently valid Office of Management and Budget (OMB) control number.
The FAA has determined that there would be no new information
collection associated with the proposed requirement that would allow
operators to combine drug and alcohol testing programs. Combining
programs would reduce the paperwork burden for drug and alcohol
testing.

[[Page 39198]]

International Compatibility

In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to conform to
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
reviewed the corresponding ICAO Standards and Recommended Practices and
has identified no differences with these proposed regulations.

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 312(d) and involves no extraordinary
circumstances.

Regulations Affecting Intrastate Aviation in Alaska

Section 1205 of the FAA Reauthorization Act of 1996 (110 Stat.
3213) requires the Administrator, when modifying regulations in title
14 of the CFR in a manner affecting intrastate aviation in Alaska, to
consider the extent to which Alaska is not served by transportation
modes other than aviation, and to establish appropriate regulatory
distinctions. Because this proposed rule would only affect operators'
drug and alcohol testing programs and not their operations, it would
not affect intrastate aviation in Alaska.

V. Executive Order Determinations

A. Executive Order 13132, Federalism

The FAA has analyzed this proposed rule under the principles and
criteria of Executive Order 13132, Federalism. The agency has
determined that this action would 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, would not have
Federalism implications.

B. Executive Order 13211, Regulations That Significantly Affect Energy
Supply, Distribution, or Use

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

VI. Additional Information

A. Comments Invited

The FAA invites interested persons to participate in this
rulemaking by submitting written comments, data, or views. The agency
also invites comments relating to the economic, environmental, energy,
or federalism impacts that might result from adopting the proposals in
this document. The most helpful comments reference a specific portion
of the proposal, explain the reason for any recommended change, and
include supporting data. To ensure the docket does not contain
duplicate comments, commenters should send only one copy of written
comments, or if comments are filed electronically, commenters should
submit only one time.
The FAA will file in the docket all comments it receives, as well
as a report summarizing each substantive public contact with FAA
personnel concerning this proposed rulemaking. Before acting on this
proposal, the FAA will consider all comments it receives on or before
the closing date for comments. The FAA will consider comments filed
after the comment period has closed if it is possible to do so without
incurring expense or delay. The agency may change this proposal in
light of the comments it receives.
Proprietary or Confidential Business Information
Commenters should not file proprietary or confidential business
information in the docket. Such information must be sent or delivered
directly to the person identified in the FOR FURTHER INFORMATION
CONTACT section of this document, and marked as proprietary or
confidential. If submitting information on a disk or CD-ROM, mark the
outside of the disk or CD-ROM, and identify electronically within the
disk or CD-ROM the specific information that is proprietary or
confidential.
Under 14 CFR 11.35(b), if the FAA is aware of proprietary
information filed with a comment, the agency does not place it in the
docket. It is held in a separate file to which the public does not have
access, and the FAA places a note in the docket that it has received
it. If the FAA receives a request to examine or copy this information,
it treats it as any other request under the Freedom of Information Act
(5 U.S.C. 552). The FAA processes such a request under Department of
Transportation procedures found in 49 CFR part 7.

B. Availability of Rulemaking Documents

An electronic copy of rulemaking documents may be obtained from 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/regulations_policies; or
3. Accessing the Government Printing Office's web page at http://www.gpo.gov/fdsys.
Copies may also be obtained 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.
Commenters must identify the docket or notice number of this
rulemaking.
All documents the FAA considered in developing this proposed rule,
including economic analyses and technical reports, may be accessed from
the Internet through the Federal eRulemaking Portal referenced in item
(1) above.

List of Subjects in 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.

The Proposed Amendment

In consideration of the foregoing, the Federal Aviation
Administration proposes to amend chapter I of title 14, Code of Federal
Regulations as follows:

PART 120--DRUG AND ALCOHOL TESTING PROGRAM

1. The authority citation for part 120 continues to read as
follows:

Authority: 49 U.S.C. 106(g), 40101-40103, 40113, 40120, 41706,
41721, 44106, 44701, 44702, 44703, 44709, 44710, 44711, 45101-45105,
46105, 46306.

2. Amend Sec. 120.115 as follows:
a. Revise paragraph (c)(1)(iii) and redesignate it as (c)(5);
b. Revise paragraph (c)(5) and redesignate it as (c)(6);

Sec. 120.115 Employee Assistance Program (EAP).

* * * * *
(c) * * *
(5) Documentation of all training given to employees and
supervisory

[[Page 39199]]

personnel must be included in the training program.
(6) The employer shall identify the employee and supervisor EAP
training in the employer's drug testing plan.
3. Amend Sec. 120.117 as follows:
a. Revise paragraphs (a) and (b);
b. Revise paragraph (e) and redesignate it as (f);
c. Add new paragraph (e).

Sec. 120.117 Implementing a drug testing program.

(a) Each company must meet the requirements of this subpart. Use
the following chart to determine whether your company must obtain an
Antidrug and Alcohol Misuse Prevention Program Operations
Specification, Letter of Authorization or Drug and Alcohol Testing
Program Registration from the FAA:

------------------------------------------------------------------------
If you are . . . You must . . .
------------------------------------------------------------------------
(1) A part 119 certificate holder Obtain an Antidrug and Alcohol
with authority to operate under Misuse Prevention Program
part 121 or 135. Operations Specification by
contacting your FAA Principal
Operations Inspector.
(2) An operator as defined in Sec. Obtain a Letter of Authorization by
91.147 of this chapter. contacting the Flight Standards
District Office nearest to your
principal place of business.
(3) A part 119 certificate holder Complete the requirements in
with authority to operate under sections 1 and 2 of this chart and
part 121 or 135 and an operator advise the Flight Standards
as defined in Sec. 91.147 of District Office and the Drug
this chapter. Abatement Division that the Sec.
91.147 operation will be included
under the part 119 testing program.
(4) An air traffic control Register with the FAA, Office of
facility not operated by the FAA Aerospace Medicine, Drug Abatement
or by or under contract to the Division (AAM-800), 800
U.S. Military. Independence Avenue SW.,
Washington, DC 20591.
(5) A part 145 certificate holder Obtain an Antidrug and Alcohol
who has your own drug testing Misuse Prevention Program
program. Operations Specification by
contacting your Principal
Maintenance Inspector or register
with the FAA, Office of Aerospace
Medicine, Drug Abatement Division
(AAM-800), 800 Independence Avenue
SW., Washington, DC 20591, if you
opt to conduct your own drug
testing program.
(6) A contractor who has your own Register with the FAA, Office of
drug testing program. Aerospace Medicine, Drug Abatement
Division (AAM-800), 800
Independence Avenue SW.,
Washington, DC 20591, if you opt to
conduct your own drug testing
program.
------------------------------------------------------------------------

(b) Use the following chart for implementing a drug testing program
if you are applying for a part 119 certificate with authority to
operate under parts 121 or 135 of this chapter, if you intend to begin
operations as defined in Sec. 91.147 of this chapter, or if you intend
to begin air traffic control operations (not operated by the FAA or by
or under contract to the U.S. Military). Use it to determine whether
you need to have an Antidrug and Alcohol Misuse Prevention Program
Operations Specification, Letter of Authorization or Drug and Alcohol
Testing Program Registration from the FAA. Your employees who perform
safety-sensitive functions must be tested in accordance with this
subpart. The chart follows:

------------------------------------------------------------------------
If you . . . You must . . .
------------------------------------------------------------------------
(1) Apply for a part 119 (i) Have an Antidrug and Alcohol
certificate with authority to Misuse Prevention Program
operate under parts 121 or 135. Operations Specification,
(ii) Implement an FAA drug testing
program no later than the date you
start operations, and
(iii) Meet the requirements of this
subpart.
(2) Intend to begin operations as (i) Have a Letter of Authorization,
defined in Sec. 91.147 of this (ii) Implement an FAA drug testing
chapter. program no later than the date you
start operations, and
(iii) Meet the requirements of this
subpart.
(3) Apply for a part 119 (i) Have an Antidrug and Alcohol
certificate with authority to Misuse Prevention Program
operate under parts 121 or 135 Operations Specification and a
and intend to begin operations as Letter of Authorization,
defined in Sec. 91.147 of this (ii) Implement your combined FAA
chapter. drug testing program no later than
the date you start operations, and
(iii) Meet the requirements of this
subpart.
(4) Intend to begin air traffic (i) Register with the FAA, Office of
control operations (at an air Aerospace Medicine, Drug Abatement
traffic control facility not Division (AAM-800), 800
operated by the FAA or by or Independence Avenue SW.,
under contract to the U.S. Washington, DC 20591 prior to
military). starting operations,
(ii) Implement an FAA drug testing
program no later than the date you
start operations, and
(iii) Meet the requirements of this
subpart.
------------------------------------------------------------------------

[[Page 39200]]

(3) Update the Letter of Authorization information as changes
occur. Send the updates, in duplicate, to the Flight Standards District
Office nearest your principal place of business.
(4) If you are a part 119 certificate holder with authority to
operate under part 121 or 135 and intend to begin operations as defined
in Sec. 91.147 of this chapter, you must also advise the FAA's Drug
Abatement Division at the Federal Aviation Administration, Office of
Aerospace Medicine, Drug Abatement Division (AAM-800), 800 Independence
Avenue SW., Washington, DC 20591.
(f) Obtaining a Drug and Alcohol Testing Program Registration from
the FAA. (1) To obtain a Drug and Alcohol Testing Program Registration
from the FAA, you must submit, in duplicate, the following information
to the Office of Aerospace Medicine, Drug Abatement Division:
(i) Company name.
(ii) Telephone number.
(iii) Address where your drug and alcohol testing program records
are kept.
(iv) Type of safety-sensitive functions you perform for an employer
(such as flight instruction duties, aircraft dispatcher duties,
maintenance or preventive maintenance duties, ground security
coordinator duties, aviation screening duties, air traffic control
duties).
(v) Whether you have 50 or more covered employees, or 49 or fewer
covered employees.
(vi) A signed statement indicating that: Your company will comply
with this part and 49 CFR part 40; and you intend to provide safety-
sensitive functions by contract (including subcontract at any tier) to
a part 119 certificate holder with authority to operate under part 121
or part 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.
(2) Send this information, in duplicate, to the Federal Aviation
Administration, Office of Aerospace Medicine, Drug Abatement Division
(AAM-800), 800 Independence Avenue SW., Washington, DC 20591.
(3) This Drug and Alcohol Testing Program Registration will satisfy
the registration requirements for both your drug testing program under
this subpart and your alcohol testing program under subpart F of this
part.
(4) Update the registration information as changes occur. Send the
updates, in duplicate, to the address specified in paragraph (f)(2) of
this section.
4. Amend Sec. 120.221 by revising paragraph (b) to read as
follows:

Sec. 120.221 Consequences for employees engaging in alcohol-related
conduct.

* * * * *
(b) Permanent disqualification from service. An employee who
violates Sec. Sec. 120.19(c) or 120.37(c), or who engages in alcohol
use that violates another alcohol misuse provision of Sec. Sec. 120.19
or 120.37, and who had previously engaged in alcohol use that violated
the provisions of Sec. Sec. 120.19 or 120.37 after becoming subject to
such prohibitions, is permanently precluded from performing for an
employer the safety-sensitive duties the employee performed before such
violation.
* * * * *
5. Amend Sec. 120.225 as follows:
a. Revise paragraphs (a) and (b);
b. Revise paragraph (e) and redesignate it as (f);
c. Add new paragraph (e).

Sec. 120.225 How to implement an alcohol testing program.

------------------------------------------------------------------------
If you are . . . You must . . .
------------------------------------------------------------------------
(1) A part 119 certificate holder Obtain an Antidrug and Alcohol
with authority to operate under Misuse Prevention Program
part 121 or 135. Operations Specification by
contacting your FAA Principal
Operations Inspector.
(2) An operator as defined in Sec. Obtain a Letter of Authorization by
91.147 of this chapter. contacting the Flight Standards
District Office nearest to your
principal place of business.
(3) A part 119 certificate holder Complete the requirements in
with authority to operate under sections 1 and 2 of this chart and
part 121 or 135 and an operator advise the Flight Standards
as defined in Sec. 91.147 of District Office and Drug Abatement
this chapter. Division that the Sec. 91.147
operation will be included under
the part 119 testing program.
(4) An air traffic control Register with the FAA, Office of
facility not operated by the FAA Aerospace Medicine, Drug Abatement
or by or under contract to the Division (AAM-800), 800
U.S. Military. Independence Avenue SW.,
Washington, DC 20591.
(5) A part 145 certificate holder Obtain an Antidrug and Alcohol
who has your own alcohol testing Misuse Prevention Program
program. Operations Specification by
contacting your Principal
Maintenance Inspector or register
with the FAA Office of Aerospace
Medicine, Drug Abatement Division
(AAM-800), 800 Independence Avenue
SW., Washington, DC 20591 if you
opt to conduct your own alcohol
testing program.
(6) A contractor who has your own Register with the FAA, Office of
alcohol testing program. Aerospace Medicine, Drug Abatement
Division (AAM-800), 800
Independence Avenue SW.,
Washington, DC 20591 if you opt to
conduct your own alcohol testing
program.
------------------------------------------------------------------------

(b) Use the following chart for implementing an alcohol testing
program if you are applying for a part 119 certificate with authority
to operate under part 121 or 135 of this chapter, if you intend to
begin operations as defined in Sec. 91.147 of this chapter, or if you
intend to begin operations as defined air traffic control operations
(not operated by the FAA or by or under contract to the U.S. Military).
Use it to determine whether you need to have an Antidrug and Alcohol
Misuse Prevention Program Operations Specification, Letter of
Authorization or Drug and Alcohol Testing Program Registration from the
FAA. Your employees who perform safety-sensitive duties must be tested
in accordance with this subpart. The chart follows:

[[Page 39201]]

------------------------------------------------------------------------
If you . . . You must . . .
------------------------------------------------------------------------
(1) Apply for a part 119 (i) Have an Antidrug and Alcohol
certificate with authority to Misuse Prevention Program
operate under part 121 or 135. Operations Specification,
(ii) Implement an FAA alcohol
testing program no later than the
date you start operations, and
(iii) Meet the requirements of this
subpart.
(2) Intend to begin operations as (i) Have a Letter of Authorization,
defined in Sec. 91.147 of this (ii) Implement an FAA alcohol
chapter. testing program no later than the
date you start operations, and
(iii) Meet the requirements of this
subpart.
(3) Apply for a part 119 (i) Have an Antidrug and Alcohol
certificate with authority to Misuse Prevention Program
operate under parts 121 or 135 Operations Specification and a
and intend to begin operations as Letter of Authorization,
defined in Sec. 91.147 of this (ii) Implement your combined FAA
chapter. alcohol testing program no later
than the date you start operations,
and
(iii) Meet the requirements of this
subpart.
(4) Intend to begin air traffic (i) Register with the FAA, Office of
control operations (at an air Aerospace Medicine, Drug Abatement
traffic control facility not Division (AAM-800), 800
operated by the FAA or by or Independence Avenue SW.,
under contract to the U.S. Washington, DC 20591 prior to
military). starting operations,
(ii) Implement an FAA alcohol
testing program no later than the
date you start operations, and
(iii) Meet the requirements of this
subpart.
------------------------------------------------------------------------

* * * * *
(e) Obtaining a Letter of Authorization from the FAA. (1) To obtain
a Letter of Authorization from the FAA, you must submit, in duplicate,
the following information to the Flight Standards District Office
nearest your principal place of business:
(i) Company name.
(ii) Telephone number.
(iii) Address where your drug and alcohol testing program records
are kept.
(iv) Type of safety-sensitive functions you perform for an employer
(such as flight instruction duties, aircraft dispatcher duties,
maintenance or preventive maintenance duties, ground security
coordinator duties, aviation screening duties, air traffic control
duties).
(v) Whether you have 50 or more covered employees, or 49 or fewer
covered employees.
(vi) A signed statement indicating that your company will comply
with this part and 49 CFR part 40.
(2) This Letter of Authorization will satisfy the requirements for
both your drug testing program under subpart E of this part and your
alcohol testing program under this subpart.
(3) Update the Letter of Authorization information as changes
occur. Send the updates, in duplicate, to the Flight Standards District
Office nearest your principal place of business.
(4) If you are a part 119 certificate holder with authority to
operate under part 121 or 135 and intend to begin operations as defined
in Sec. 91.147 of this chapter, you must also advise the FAA's Drug
Abatement Division at the Federal Aviation Administration, Office of
Aerospace Medicine, Drug Abatement Division (AAM-800), 800 Independence
Avenue SW., Washington, DC 20591.
(f) Obtaining a Drug and Alcohol Testing Program Registration from
the FAA. (1) To obtain a Drug and Alcohol Testing Program Registration
from the FAA you must submit, in duplicate, the following information
to the Office of Aerospace Medicine, Drug Abatement Division:
(i) Company name.
(ii) Telephone number.
(iii) Address where your drug and alcohol testing program records
are kept.
(iv) Type of safety-sensitive functions you perform for an employer
(such as flight instruction duties, aircraft dispatcher duties,
maintenance or preventive maintenance duties, ground security
coordinator duties, aviation screening duties, air traffic control
duties).
(v) Whether you have 50 or more covered employees, or 49 or fewer
covered employees.
(vi) A signed statement indicating that: Your company will comply
with this part and 49 CFR part 40; and you intend to provide safety-
sensitive functions by contract (including subcontract at any tier) to
a part 119 certificate holder with authority to operate under part 121
or part 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.
(2) Send this information, in duplicate, to the Federal Aviation
Administration, Office of Aerospace Medicine, Drug Abatement Division
(AAM-800), 800 Independence Avenue SW., Washington, DC 20591.
(3) This Drug and Alcohol Testing Program Registration will satisfy
the registration requirements for both your drug testing program under
subpart E of this part and your alcohol testing program under this
subpart.
(4) Update the registration information as changes occur. Send the
updates, in duplicate, to the address specified in paragraph (f)(2) of
this section.

Issued in Washington, DC, on June 20, 2012.
Frederick E. Tilton,
Federal Air Surgeon.
[FR Doc. 2012-16009 Filed 6-29-12; 8:45 am]
BILLING CODE 4910-13-P