```

[Federal Register Volume 76, Number 133 (Tuesday, July 12, 2011)]
[Rules and Regulations]
[Pages 40798-40804]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-17472]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 121

[Docket No.: FAA-2002-11301; Amendment No. 121-315]
RIN 2120-AH14

Antidrug and Alcohol Misuse Prevention Programs for Personnel 
Engaged in Specified Aviation Activities; Final Regulatory Flexibility 
Determination

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: On January 10, 2006, the FAA issued a final rule to require 
that each person who performs a safety-sensitive aviation function 
directly for an employer, including contractors and subcontractors, is 
subject to drug and alcohol testing. This document announces the 
completion and availability of the final regulatory flexibility 
certification for this final rule. The rule will not have a significant 
economic impact on a substantial number of small entities.

DATES: Effective July 7, 2011.

FOR FURTHER INFORMATION CONTACT: Nicole Nance, Office of Aviation 
Policy and Plans, APO-300, Federal Aviation Administration, 800 
Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-
3311; e-mail nicole.nance@faa.gov. For legal questions concerning this 
document, contact Anne Bechdolt, Regulations Division, AGC-220, Office 
of the Chief Counsel, Federal Aviation Administration, 800 Independence 
Avenue, SW., Washington, DC 20591; telephone (202) 267-7230; e-mail 
anne.bechdolt@faa.gov.

SUPPLEMENTARY INFORMATION:

Background

    On February 28, 2002, the FAA issued a notice of proposed 
rulemaking seeking to revise the drug and alcohol testing regulations 
by amending the definition of employee (67 FR 9366, 9377, Feb. 28, 
2002). The FAA action addressed those individuals performing safety-
sensitive functions under contract who may not have been subject to 
testing under the drug and alcohol testing regulations established in 
1988 and 1994, respectively. Upon review of comments, the FAA, in 2004, 
issued a supplemental notice of proposed rulemaking to seek comment 
regarding how small entities would be impacted by this rule (69 FR 
27980, May 17, 2004). From the comments received the FAA certified 
under 5 U.S.C. 605(b) that the rule would not have a significant impact 
on a substantial number of small entities.
    On January 10, 2006, the FAA issued the final rule (71 FR 1666). 
This rule requires that each person who performs a safety-sensitive 
aviation function directly for an employer is subject to testing and 
that each person who performs a safety-sensitive function at any tier 
of a contract for that employer is also subject to testing. This 
requirement includes contractors and subcontractors. Contracting 
companies have two testing options: Option one is for the contracting 
company to obtain and implement its own FAA drug and alcohol (D&A) 
testing programs. Under this option, the company would subject the 
individuals to testing. The other option is for the regulated employer 
to maintain its own testing programs and subject the individual to 
testing under these programs. To establish a D&A program a company 
would need to develop and maintain testing, training, and annual 
reporting requirements.
    To comply with the Regulatory Flexibility Analysis (RFA), and to 
evaluate the impact on small businesses, the FAA described and 
estimated the number of affected businesses and estimated the economic 
impact. In the certification for the final rule the FAA estimated that 
the costs were minimal, and that contractors would absorb some of these 
costs. In order to estimate the maximum impact of this regulation on 
regulated entities, the FAA assumed that all of the additional cost 
would be passed along to regulated employers. Since costs were minimal, 
the FAA again certified that the rule would not have a significant 
economic impact on a substantial number of small entities. 71 FR 1666, 
1674 (Jan. 10, 2006)
    The Aeronautical Repair Station Association, Inc., (ARSA) and other 
affected businesses challenged the final rule on several grounds, 
including the FAA's compliance with the Regulatory Flexibility Act. The 
entities argued that contractors and subcontractors were directly 
affected by the final rule, and in failing to consider them as part of 
the basis for the certification, the FAA failed to comply with the RFA. 
Upon review, the U.S. Court of Appeals for the

[[Page 40799]]

District of Columbia upheld ``the substance of the 2006 final rule'' 
and remanded ``for the limited purpose of conducting the analysis 
required under the RFA, treating the contractors and subcontractors as 
regulated entities.'' The Court found that contractors and 
subcontractors were directly affected by the final rule and that the 
FAA failed to comply with the RFA by not considering them in the 
analysis. To comply with the court's order, the FAA extended the 
regulatory flexibility analysis to include contractors and 
subcontractors and published the analysis for comment on March 8, 2011 
(76 FR 12559). The FAA again certified that although the rule would 
affect a substantial number of small entities, the economic impact on 
these entities would not be significant.
    The FAA received comments from the U.S. Small Business 
Administration's Office of Advocacy (SBA), Aeronautical Repair Station 
Association, Inc. (ARSA), Aviation Suppliers Association (ASA), 
Modification and Replacement Parts Association (MARPA), National Air 
Transportation Association (NATA), and four individuals. SBA noted that 
the March 2011 certification relied too heavily on the ARSA survey that 
was submitted in response to the analysis published for comment on 
August 24, 2005, as well as the SBA analysis of which entities may be 
impacted by this rule. ARSA, ASA, MARPA, and NATA also questioned the 
use of the ARSA survey and whether the FAA had attempted to verify, 
through other data sources, the information provided by ARSA and SBA to 
identify the subcontractors that would be impacted by this rule. ARSA 
asserted that there was no factual basis for the FAA's assumption that 
these entities employed, on average, 25 individuals, considering that 
43% of the entities ARSA surveyed employed 11-50 individuals. SBA 
stated that the FAA needed to identify all regulated small entities 
that would be covered by this final rule and provide additional 
analysis on the size and revenue characteristics of these entities. The 
FAA has addressed these issues below.
    SBA, ARSA, ASA, MARPA, and NATA also raised concerns that the 
source information for the projected wage, training, education, program 
development, and annual documentation costs was not provided. ASA and 
MARPA asserted that the cost estimates failed to account for travel 
costs for the employee to take the tests, as well as increased rates 
charged by contract companies for administering these programs, and 
testing that occurs after an accident. ARSA noted that the FAA should 
also consider the costs to change existing processes, conduct alcohol 
and drug testing background checks, as well as the revenue lost when 
the employee has to undergo testing. MARPA stated that the FAA 
underestimated the administrative costs of managing the program by 
assessing this cost based on the assumption that an administrative 
person on staff would oversee the program, rather than the costs of 
either outsourcing the administration of the program or assuming that a 
management employee would be assigned to administer the program.
    Finally, ARSA, ASA, and MARPA assert that this final rule does have 
a significant economic impact. MARPA and ASA noted that the FAA's use 
of a 2% threshold of annual revenues exceeds SBA's 1% of annual 
revenues threshold for determining significant impact. ARSA asserts 
that if the FAA considers the profit margins of these entities, the 
impact is significant. The FAA has addressed these issues below.
    Upon review of the comments and further analysis provided below, 
the FAA certifies under 5 U.S.C. 605(b) that this rule will not have a 
significant impact on a substantial number of small entities.
    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) 
establishes ``as a principle of regulatory issuance that agencies shall 
endeavor, consistent with the objectives 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 this principle, the RFA requires 
agencies to solicit and consider flexible regulatory proposals and to 
explain the rationale for their actions to assure that such proposals 
are given serious consideration.'' 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 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 RFA. 
However, if an agency determines that a rule is not expected to have a 
significant economic impact on a substantial number of small entities, 
section 605(b) of the 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. Based on the 
analysis below, the FAA certifies that this rule does not have a 
significant economic impact on a substantial number of small entities. 
While there are a substantial number of affected small entities, the 
compliance cost is not a significant economic cost. A full discussion 
follows.

I. Basis for the Final Rule

    This final rule amends the FAA regulations governing drug and 
alcohol testing to clarify that each person who performs a safety-
sensitive function for a regulated employer by contract, including by 
subcontract at any tier, is subject to testing. These amendments are 
necessary because in the 1990s, the FAA issued conflicting guidance 
about which contractors were subject to drug and alcohol testing. The 
FAA did not consider any alternatives to this rule because the rule was 
designed to clarify that the FAA intended that each person who performs 
a safety-sensitive function for a regulated employer by contract, 
including by subcontract at any tier, is subject to testing. The FAA 
specifically addressed this issue in the final rule 71 FR 1666 (January 
10, 2006). The applicability of the drug and alcohol requirements to 
sub-contractors, including those not certificated by the FAA is the 
sole purpose of the rule. Accordingly, the agency determined in 2006 
that no other alternative was available, a decision upheld by the court 
in the subsequent lawsuit. These matters were addressed by the FAA when 
publishing the final rule when we said:

    [T]he level of the contractual relationship should not limit the 
requirement for all safety-sensitive work to be performed by drug-
free and alcohol-free employees. If individuals are performing 
safety-sensitive functions for a regulated employer, the individuals 
must be subject to testing, regardless of the tier of contract under 
which they are performing.
    It would be inconsistent with aviation safety for individuals 
performing maintenance work within the certificated repair station 
to be subject to testing, while individuals performing the same 
maintenance work under a subcontract would not be subject to drug 
and alcohol testing.''

71 FR 1670.

    Additionally, the FAA expressly discussed comments that 
subcontractors that are not primarily aviation-related businesses 
should not be subject to testing. In the preamble to the final rule, 
the FAA rejected this premise, noting that ``[w]hen subcontractors 
choose to perform safety-sensitive functions for regulated employers, 
they are choosing

[[Page 40800]]

to comply with the FAA drug and alcohol testing regulations. The impact 
these subcontractors have on aviation safety is not related to whether 
they hold a repair station certificate. Instead, they have an impact 
because they actually perform safety-sensitive functions.'' 71 FR 1673. 
The FAA went on to note that the commenters provided no data to support 
the premise that non-certificated subcontractors would cease providing 
service to the aviation industry. Indeed, in the final regulatory 
evaluation, the data provided by the commenters showed the majority of 
such contractors would continue doing business with the aviation 
industry after the final rule became effective. Id.
    For safety reasons, the FAA wanted to ensure that all persons 
performing safety-sensitive functions were tested. This remains the 
case today and as such, there are no alternatives to the final rule 
that could have been considered and implemented.
    The final rule is promulgated under the authority described in 49 
U.S.C. 45102, which charges the FAA with prescribing regulations to 
establish programs for drug and alcohol testing of employees performing 
safety-sensitive functions for air carriers and to take certificate or 
other action when an employee violates the testing regulations. The 
final rule does not duplicate or otherwise conflict with another 
provision of law. A description and an estimate of the number of small 
entities to which the rule will apply, as well as a description of the 
projected reporting, record keeping and other compliance costs, is 
provided below and forms the basis for the FAA's certification under 5 
U.S.C. 605(b).

II. Description of Small Entities Impacted by This Rule

    The entities impacted by this rule are repair stations certificated 
under 14 CFR part 145, and their subcontractors. The size standards for 
determining whether these entities constitute small businesses vary and 
the FAA offers the following discussion to support the definition of a 
small business for this certification.

A. Size Standard

    The Small Business Administration (SBA) has established small 
business size standards pursuant to the Small Business Act (Act) (Pub. 
L. 85-236, as amended) and related legislative guidelines. The SBA 
classifies ``small'' businesses based on their employment or annual 
revenue as set forth in the North American Industrial Classification 
System (NAICS) classifications. See 13 CFR 121.201. Under NAICS 488190 
``Other Support Activities for Air Transport'', repair stations, which 
constitute some of the entities affected by this final rule, are 
defined as small businesses if they have annual revenues of $7 million 
or less. Subcontractors, conversely, overlap several industries and 
have multiple NAICS classifications. In attempting to identify all of 
the subcontractors impacted by this rule, the FAA examined the 
submitted list of 21 NAICS codes provided by SBA and ARSA. Using these 
NAICS codes, the definition of a small business for subcontractors 
could range, based on the number of employees alone, from 500 to 1,000 
employees, or based on annual revenues of $7 million or less. The FAA 
reviewed all of the NAICS codes and notes that the SBA defines the 
average industry as having the following standards for a small 
business: 500 employees for most manufacturing and mining industries, 
and $7 million in average annual receipts for most non-manufacturing 
industries.\1\ Given the variance in these NAICS codes, the FAA has 
determined that the appropriate definition for determining whether a 
subcontractor is a small business under this rule is to use the most 
conservative criteria set forth in NAICS classification. Thus, the FAA 
will classify a subcontractor as a small business if it employs 500 
employees or fewer, or has annual revenues of $7 million or less. The 
FAA uses both criteria to analyze the impact on subcontractors.
---------------------------------------------------------------------------

    \1\ http://www.sba.gov/content/summary-size-standards-industry.
---------------------------------------------------------------------------

B. Repair Stations Impacted by This Rule

    Certificate holders, such as part 121, 135 and 145 have operating 
certificates issued by the FAA, allowing the FAA to determine the 
number of certificate holders impacted by this rule. The FAA National 
Vital Information Subsystem (NVIS) Air Agency records indicate there 
are 4,105 part 145 certificated domestic repair stations. To determine 
how many of these repair stations would be classified as small business 
under NAICS 488180, the FAA reviewed a recent study completed by the 
U.S. Transportation Security Administration.\2\
---------------------------------------------------------------------------

    \2\ Aircraft Repair Station Security (49 CFR Part 1520 and 
1554). Regulatory and Economic Analysis: Transportation Security 
Administration Department of Homeland Security, October 15, 2009 
[Docket No. TSA-2004-17131] http://www.nbaa.org/ops/security/programs/repair-station/part-145-security-nprm-20091118.pdf.
---------------------------------------------------------------------------

    In this study, TSA compiled both revenue and employment records 
from Dun & Bradstreet for approximately 2,276 domestic repair stations. 
From this total, they identified 2,123 repair stations that meet the 
small business size standard reflected in NAICS 488190. This analysis 
indicates that most repair stations are small businesses. Accepting the 
TSA percentage of small entities for domestic repair stations, the FAA 
has estimated that out of 4,105 domestic U.S. certificated repair 
stations, 3,829 are small businesses with revenues of $7 million or 
less. The FAA has determined that this rule would impact a substantial 
number of small business repair stations.

C. Subcontractors Impacted by This Rule

    After estimating the number of small entity repair stations, we now 
focus on describing subcontractors impacted by this rule. Many of the 
subcontracting companies impacted by this rule are not certificated by 
the FAA. Their primary function is not aviation related, but rather a 
business outside of aviation. Because these businesses are based on 
NAICS codes from other industries, the FAA could not easily determine 
the appropriate codes. The FAA first reviewed the comments submitted by 
SBA and ARSA in response to the Antidrug and Alcohol Misuse Prevention 
Programs Regulatory Evaluation including a preliminary list of 21 NAICS 
codes for suppliers, parts fabricators and metal finishers, and others 
that may perform safety sensitive repairs and would be considered a 
subcontractor under the rule. The FAA examined the submitted list of 21 
NAICS codes to determine which activities would be covered by this 
rule. There was some duplication in the codes, reducing the actual 
number of codes to be examined. The results of this analysis are 
presented in Table 1.
    In addition to the list of NAICS codes, ARSA also provided 
information on a Non-Certificated Maintenance Subcontractor (NCMS) 
Survey it conducted. Some of the information from the survey proved to 
be useful in determining the small business impact on subcontractors, 
particularly the responses to questions 1 (number of employees), 2 
(annual revenue), 3 (an existing contract with a US air carrier to 
perform maintenance), 4 (type of work). These responses are used, in 
this analysis, to determine the characteristics of these companies.
    The FAA finds it appropriate to start with the responses to 
question 4, which deals with the work-related functions of

[[Page 40801]]

the respondents, as a snapshot of some of the types of companies that, 
would need to be included in this analysis. The FAA grouped the 
responses to question 4 into the NAICS codes that both ARSA and the SBA 
provided and the FAA was able to correlate 98 of the 134 survey 
respondents with these codes; these 98 are shown in Table 1 below. 
While there are discrepancies with regard to the count, we can validate 
98 of the 134 responses. This shows the wide spectrum of businesses 
providing contracting support.

         Table 1--Survey Results--NAICS Codes and Work Functions
------------------------------------------------------------------------
                                                           Require D&A
    Number of NCMS       NAICS code     Work functions       program?
------------------------------------------------------------------------
1....................          313311  Fireproofing of                Y
                                        fabrics.
14...................          313320  Metallizing                    S
                                        (including
                                        plating).
9....................          332322  Manufacturing                  N
                                        airframe parts
                                        (mostly sheet
                                        metal).
                       ..............  Manufacturing                  N
                                        per approved
                                        drawing or data.
                       ..............  Manufacturing                  N
                                        small parts;
                                        some of which
                                        are used by
                                        part 121
                                        operators.
23...................          332710  Chemical milling               S
                                        (reduction of
                                        weight).
                       ..............  Machining.......               S
                       ..............  Machining and                  N
                                        welding of
                                        ground support
                                        parts for
                                        planes.
                       ..............  Machining of                   S
                                        turbine engine
                                        components.
                       ..............  Machining;                     S
                                        chrome plating;
                                        anodize; metal
                                        finishing; shot
                                        peening.
3....................          332722  Manufacturer of                N
                                        miniature
                                        turned parts.
                                        Screws and like.
2....................          332811  Heat treating...               Y
1....................          332812  Painting........               Y
8....................          332813  Chrome plating;                S
                                        nickel plating
                                        (metal
                                        finishing).
                       ..............  Machining;                     S
                                        chrome plating;
                                        anodize; metal
                                        finishing; shot
                                        peening.
                       ..............  Metal finishing                S
                                        (grinding)
                                        (zinc plating).
                       ..............  Plating;                       S
                                        precision
                                        grinding; non-
                                        destructive
                                        testing.
3....................          332999  Die-cut parts--                N
                                        shims; washers;
                                        gaskets; etc.
1....................          334511  Rebuild electro-               N
                                        mechanical
                                        switches for
                                        aviation use.
1....................          336412  Overhauling of                 Y
                                        engine blocker
                                        doors.
22...................          488190  Minor                          Y
                                        maintenance.
                       ..............  Maintenance on                 Y
                                        135 charter
                                        aircraft line.
                       ..............  Overhauling of                 Y
                                        engine blocker
                                        doors.
5....................          541380  Calibration and                N
                                        repair of test
                                        and measuring
                                        equipment.
                       ..............  Hydrostatic                    N
                                        testing.
                       ..............  Inspection......               N
                       ..............  Machining &                    N
                                        fabrication of
                                        test fixtures &
                                        equipment used
                                        in repair
                                        processes.
                       ..............  Non-destructive                N
                                        testing.
1....................          561740  Cleaning seat                  N
                                        covers.
4....................          811310  Machining and                  N
                                        welding of
                                        ground support
                                        parts for
                                        planes.
                       ..............  Manufacturing &                N
                                        precision
                                        grinding and
                                        testing of
                                        various fuel &
                                        hydraulic/
                                        pneumatic valve
                                        assemblies.
------------------------------------------------------------------------

    Table 1 also indicates whether a specific function would require a 
D&A program. The last column is either marked with ``Y'' meaning yes, 
``N'' meaning no, and ``S'' meaning some in this grouping might need 
such a program, as this work function conceivably could mandate such a 
program. Companies that have work that is strictly manufacturing will 
not be required to comply with the D&A testing rules. Several companies 
mentioned in their survey responses that they do not perform 
maintenance, and would not be included among companies required to set 
up and implement D&A testing. For example, the 14 companies 
characterized as 313320, which involves metal finishing including 
plating, may need to conduct D&A testing if any of the work they 
perform is considered maintenance under 14 CFR part 43.
    The responses to questions 1 and 2 address the number of employees 
and the annual revenue reported by the surveyed companies. These 
responses are helpful in establishing the type of impact that this 
program will have on these companies. Question 1 asked ``How many 
employees does your company have?'' Table 2 summarizes the responses 
provided by the ARSA survey. All but two of the responses are in the 
category of 750 or below. The two responses for ``1501+'' are outliers 
and, for computational purposes, can be ignored. Approximately 75 of 
the respondents stated that they employed between 1 and 50 employees, 
indicating that the majority of subcontracting companies are small 
entities.

              Table 2--Survey Results--Employees by Company
------------------------------------------------------------------------
                      Response                          Count    Percent
------------------------------------------------------------------------
1 to 10.............................................        43     32.09
11 to 50............................................        58     43.28
51 to 100...........................................        10      7.46
101 to 500..........................................        18     13.43
501 to 750..........................................         3      2.24
751 to 1000.........................................         0      0.00
1001 to 1500........................................         0      0.00
1501+...............................................         2      1.49
                                                     -------------------
    Total...........................................       134    100.00
------------------------------------------------------------------------

    Question 2 of the survey asked about the company's annual revenues; 
Table 3 summarizes the survey responses:

           Table 3--Survey Results--Annual Revenue by Company
------------------------------------------------------------------------
                      Response                          Count    Percent
------------------------------------------------------------------------
Under $750,000......................................        43     32.09
$750,000 to $1 million..............................        14     10.45
$1 million to $2 million............................        20     14.93
$2 million to $6 million............................        24     17.91
$6 million to $10.5 million.........................         8      5.97
$10.5 million to $21.5 million......................         7      5.22
$21.5 million to $25 million........................         1      0.75

[[Page 40802]]

 
$25 million to $30 million..........................         4      2.99
More than $30 million...............................        13      9.70
                                                     -------------------
    Total...........................................       134    100.00
------------------------------------------------------------------------

    Most of these companies reported average annual revenue of $7 
million or less.
    As noted above, given the fact that the contractors and 
subcontractors are not certificated entities and the variety of work 
that these contractors perform for repair stations, the FAA believes 
that this study represents only a fraction of the total number of NCMS 
that may be impacted by this rule. Given the SBA's average criteria for 
defining small business as an entity having either 500 employees or 
less, or having revenue of $7 million or less, depending on the NAICS 
code, and that most of the businesses in the ARSA survey satisfy these 
criteria, the FAA has determined that a substantial number of 
subcontractors will be small entities impacted by this rule.

III. Economic Impact

    Having determined that both a substantial number of small business 
repair stations and subcontractors will be impacted by this rule, the 
next step is to estimate the economic impact on these entities. The FAA 
rule requires small businesses to administer random drug tests to those 
employees who perform safety-sensitive functions. A subcontractor 
company can obtain coverage under another established program, lowering 
the cost compared to implementing its own program. In response to SBA's 
concerns that the program costs were underestimated for subcontractors 
in the March 2011 certification, the FAA based costs on subcontractors 
initiating and then implementing their own programs. It is important to 
note that these costs are much higher than when repair stations or 
contractors at higher tiers absorb some of the cost of D&A testing for 
the smaller firms. Moreover, most repair stations have drug and alcohol 
programs and therefore would not experience a cost burden based on the 
amendments to this rule. However, to estimate the maximum impact of 
this regulation on these employers, the FAA assumes that all of the 
additional cost for D&A testing is absorbed by each NCMS. The costs 
include: (1) Program development and maintenance, (2) training and 
education, (3) testing, and (4) annual documentation. The assumptions 
and calculations are described below and represent the costs associated 
with a fully-approved DOT drug and alcohol testing program:
    General Cost and Salary Assumptions:

Maintenance supervisor salary \3\--$39.35/hour
---------------------------------------------------------------------------

    \3\ 49-1011 First-Line Supervisor/Managers of Mechanics, 
Installers, and Repairers; Bureau of Labor Statistics, http://www.bls.gov--In May 2009, the Employee Benefit Research Institute, 
using a Bureau of Labor Statistics Survey of employee benefits 
estimated the total 2009 benefit as a percentage of payroll at 30.2 
percent; http://www.ebri.org/pdf/publications/books/databook/DB.Chapter2003.pdf.
---------------------------------------------------------------------------

Maintenance employee salary \4\--$34.38/hour
---------------------------------------------------------------------------

    \4\ 49-3011 Aircraft Mechanics and Service Technicians; Bureau 
of Labor Statistics, http://www.bls.gov.
---------------------------------------------------------------------------

Blended Wage \5\--$34.96/hour
---------------------------------------------------------------------------

    \5\ Two of the costs described below, testing costs and employee 
training costs, involve all employees, both supervisors and non-
supervisors. For these two sets of calculations, the FAA uses a 
weighted wage rate from the maintenance supervisor and maintenance 
employee salary that is applicable to all employees.
---------------------------------------------------------------------------

Instructor salary \6\--$26.68/hour
---------------------------------------------------------------------------

    \6\ 25-3099 Teachers and Instructors, All Other; Bureau of Labor 
Statistics, http://www.bls.gov.
---------------------------------------------------------------------------

Administrative employee \7\--$21.41/hour
---------------------------------------------------------------------------

    \7\ 43-0000 Office and Administrative Support Occupations; 
Bureau of Labor Statistics, http://www.bls.gov.
---------------------------------------------------------------------------

1 Supervisor for every 8 employees
1 Instructor for every 20 employees

Program Development and Maintenance

    Each subcontractor will have to devote resources to developing an 
antidrug and alcohol misuse prevention testing program. In addition, 
each of these subcontractors will have to spend time to produce 
information required for their registration and submit it to the FAA. 
At the FAA, this information will have to be processed, and entered 
into the appropriate database. The FAA estimates that development and 
maintenance of a drug program would require a minimum of 16 additional 
administrative hours at $21 per hour for a total of $336 per company 
per year. Data provided by the Office of Aerospace Medicine shows that 
most companies have administrative support staff administering the 
program, however, in response to comments from MARPA and ARSA, the FAA 
also estimated costs using a supervisor ($39.35/hour) as the 
responsible party. For a supervisor with a minimum of 16 hours, the FAA 
estimates that the development and maintenance of a drug program would 
be $629 per year. The FAA believes that the administrative burden on 
subcontractors will be less than or equal to those of small part 121- 
or 135-certificate holders. Moreover, to be conservative and not 
underestimate costs, the FAA used 16 hours of a supervisor's time for 
administering the program to compute startup program development costs.

Training and Education

    Training costs are a combination of supervisor and employee 
training costs, plus the cost to establish and maintain a training 
program. For both the antidrug and alcohol misuse prevention programs, 
the employer will train supervisors to make reasonable cause/suspicion 
determinations. In addition, supervisors and employees will receive 
training on the effects and consequences of drug use on personal 
health, safety, and work environment, as well as the manifestations and 
behavioral cues that may indicate drug use and abuse. For supervisors, 
the FAA requires an initial two hours of training; an hour for the drug 
program and another hour for the alcohol program. For the initial 
training, adding the supervisor salary ($39.35) for 2 hours to the 
instructor salary ($26.68) for the same 2 hours of instruction sums to 
$132 per supervisor. The FAA also requires recurring supervisory 
training for the drug program. Although there is no time requirement 
for this training; the FAA expects that the recurring training will be 
similar to the initial training. Therefore, the FAA estimates that 
companies will provide an annual hourly refresher course for 
supervisors. The recurring annual training would be half the cost of 
the initial training at $66 per supervisor per year. However, the 
recurring training costs are weighted to include any additional initial 
supervisory training for an actual recurring cost of $73 per supervisor 
per year. To include the cost of initial training and the recurring 
training the FAA averaged these costs over the 10 years analyzed in the 
Regulatory Evaluation for this rule. The average training costs per 
year per supervisor is $84.
    For employees, companies are only required to provide initial 
training explaining the program and expectations for employees; a 
refresher course is recommended but not required. Training for 
employees is an hour. Cost to train employees is approximately an hour 
of an employee's time at $34.38 per hour and an hour of the 
instructor's time ($26.68) for a total of $61.06 per employee per year.
    Companies must also establish an education program that includes 
informational material, videos, etc. Training materials are generally 
an expense incurred during the start-up

[[Page 40803]]

phase of a drug and alcohol testing program. Employers can buy a single 
package of materials, and/or a video, which will be used for both 
supervisors and employees. There is also an option to use the Internet 
and/or our Agency materials to provide this training. From information 
provided by the Office of Aerospace Medicine and the cost of training 
materials on several Web sites, the FAA estimates that companies could 
incur an upfront cost for training material of $199 to $400 per 
company.\8\ Since companies reuse these videos, the costs for materials 
are actually spread out over several years. Spreading the material cost 
over the same 10 year period as above, the FAA estimates that companies 
will spend approximately $40 per company per year on training material.
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    \8\ https://secure2.airbase1.com/faadrug/results.asp.
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Testing Cost

    Drug and alcohol tests are required periodically for all employees 
performing safety sensitive functions. The test costs approximately $45 
\9\ or $35, respectively. Several commenters stated that testing costs 
range anywhere from $60-$95 because most businesses contract out the 
administration of the program, including the testing, which results in 
higher costs. Here the testing cost is smaller because it does not 
include outsourcing the administration of the program, rather the 
administration of the program is done internally and those costs are 
listed under program development, maintenance and annual documentation 
below. The test includes specimen collection, laboratory processing, 
and MRO (medical review officer) verification. Testing takes place 
during an employee's shift. This is time not worked but still paid by 
the company and is included as part of the testing cost. In the March 
2011 certification the FAA estimated that the testing process would 
take approximately 2 hours. The FAA adopted this standard based on 
comments to the initial regulatory evaluation published for comment on 
August 24, 2005. Originally, the FAA estimated that it would only take 
45 minutes to conduct these tests. The 45 minutes is composed of 30 
minutes of total travel time, and 15 minutes for the drug test. 
Commenters asserted that this 45 minute timeframe failed to adequately 
account for travel time. In consideration of these comments, the FAA 
estimated in the certification published for comment in March 2011 that 
the total cost of testing is calculated by adding the 2-hour blended 
wage paid to the employee to the cost of the test. Thus, the total cost 
of a drug test, which includes the 2-hour testing process with the 
employee's labor wage for this time as well as travel costs, sums to 
$113 per employee and $102 per employee for an alcohol testing. This is 
consistent with previous FAA methodology for determining labor costs 
attributable to a rule. In its comments to this certification, ARSA 
suggested that the FAA should not use the employee's wage but rather, 
should use the labor rate that the company would charge its customers 
to account for lost revenue while the test is being conducted. The 
difference between the wage rate and the labor rate is a transfer from 
the customer to the company and transfers are not to be included as 
compliance costs based on OMB guidance. Moreover, this is not included 
because companies are being compensated by their customers.
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    \9\ The source for the information on the drug and alcohol tests 
is the Office of Drug and Alcohol Policy and Compliance, in the 
Office of the Secretary of Transportation. This cost covers, among 
other things, collection of specimens, reporting, recordkeeping, and 
chain-of-custody procedures, as well as the cost of the technician.
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Annual Documentation

    Each subcontractor has to periodically submit documentation. 
Subcontractors will be required to report or submit the following 
documents; training records, reasonable suspicion cases of drug and 
alcohol misuse, a positive drug or alcohol test, an employee's refusal 
to submit to a drug or alcohol test, post-accident alcohol tests, and 
if a post-accident alcohol test is not promptly administered 
documentation stating the reasoning behind the delay. The FAA estimates 
that it will cost \10\ $1.29 to report each training record, to 
document each reasonable suspicious case, or to submit every rationale 
behind tests not being promptly administered. Notification of a 
positive drug or alcohol test or an employee's refusal to be tested is 
estimated to take 0.25 administrative hours at an hourly rate of $21 
totaling roughly $5 per notification. The FAA projects that these 
documents will be submitted annually, but each company on average only 
submits a certain number of reports. Using this average, documentation 
cost is estimated at $50 per company for the first year and $4.50 per 
company for subsequent years.
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    \10\ The FAA and the other DOT modes are directed by DOT to 
price record creation at $1.145, record filing at $0.118, and record 
storage at $0.0228 for all documents related to the alcohol misuse 
prevention program and the antidrug program.
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    As stated above, for this rule the FAA defines a small business as 
a company having 500 employees or fewer, or having revenue of $7 
million or less. To determine if there would be a significant economic 
impact on small businesses, the FAA estimated the cost for what is 
believed to be one of the smallest companies under this definition: A 
company with 2 employees and 1 supervisor. The FAA summed the cost 
information provided above for testing, training and education, program 
maintenance and development, and annual documentation for a total cost 
of $2280er year. Detailed information on how this number was calculated 
is provided below.

2 Employees and Annual Revenue Under $750,000

Cost of Drug Testing Program

$113 Testing Cost x 2 Employees = $226
$84 Supervisor Training x 1 Supervisors = $84
$61 Employee Training x 2 Employees = $122
$40 per Company for Training Material
$629 Program Development per Company
+ $50 for Annual Documentation per Company
    Total Cost = $1,151 per Company

Cost of Alcohol Testing Program

$102 Testing Cost x 2 Employees = $204
$84 Supervisor Training x 1 Supervisors = $84
$61 Employee Training x 2 Employees = $122
$40 per Company for Training Material
$629 Program Development per Company
+$50 for Annual Documentation per Company
    Total Cost = $1,129 per Company
    Per SBA guidance, ``in the absence of statutory specificity, what 
is significant or substantial will vary depending on the problem being 
addressed, the rule's requirements, and the preliminary assessment of 
the rule's impact. The agency is in the best position to gauge the 
small entity impacts of its regulations. Thus, Advocacy relies on 
legislative history of the RFA for general guidance in defining these 
terms.'' \11\ Historically, the FAA uses costs equal to or exceeding 2 
percent of annual revenue as a measure of a significant economic 
impact. For a $2,280 cost to be a significant economic impact, a 
company would need to have annual revenues of less than $103,000. Given 
the wages of a supervisor and two employees, these companies would need 
revenue substantially higher than

[[Page 40804]]

$100,000 to stay in business. ARSA maintains that measuring the impact 
on small businesses based on annual revenues is not appropriate. ARSA 
asserts that the FAA should measure economic impact based on profits. 
The FAA has reviewed ARSA's suggestion and determined that it is not 
appropriate for this analysis. Use of annual revenues is consistent 
with the SBA's measure of the impact on small businesses. See 13 CFR 
121.106; 121.201. Thus, based on the projected costs for the smallest 
of entities that could be affected by this final rule, the FAA 
concludes no firm would incur a significant economic impact. 
Accordingly, although a substantial number of small businesses are 
impacted by this rule, because the economic impact is not significant, 
under 5 U.S.C. 605(b), I certify, as the FAA Administrator, that this 
rule will not have a significant economic impact on a substantial 
number of small entities.
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    \11\ Report on the Regulatory Flexibility Act, FY 2010; http://www.sba.gov/sites/default/files/files/10regflx.pdf.

    Issued in Washington, DC, on July 7, 2011.
J. Randolph Babbitt,
Administrator, Federal Aviation Administration.
[FR Doc. 2011-17472 Filed 7-7-11; 4:15 pm]
BILLING CODE P
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