### Respondent's Exhibit List

#. 

### Description

1 Fit Std FSIMS dtd 20070913 -1 pp 2 Ltr FAA to Dr Selig

- dtd 20040402

- 2 pp 3 Helicopters Inc ADPP Rep- 1 pp- OBJECTION 4 ERA Rodriquez dtd 20101117- 1 pp 

### 5 Inspector Sta undtd

- 

### 1 pp 6. Ltr FAA to Selig 20070619

- 1 pp 

### 7 PA Corp Bureau name chg M&R to DR Helicopters OBJECTION OR 

### 8 CFR Sec 135.251 chg

- 2 pp 

### 9 Unk doc- OBJECTION 10 11 12 13 14 15 16 17 

## 18 19 20 

### 10 IN
X X
X X 

### X X



## x NO
X X
X X 

### X X

X X


## x NO

### U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION National Policy 

## ORDER 

# 8900.1

Effective Date: 09/13/2007



### SUBJ: Flight Standards Information Management System (FSIMS)



## 1. Purpose ofThis Order. This order establishes the Flight Standards Information Management System (FSIMS) as the repository ofall Flight Standards policy and guidance concerning aviation safety inspectorjobtasks. Technically speaking, FSIMS is a Flight Standards directive, which aviation safety inspectors use as the system ofrecord for all Flight Standards policy and guidance.

2. Audience. The primary audience for this order is Flight Standards aviation safety inspectors, their managers and supervisors, and other operational and administrative employees. The aviation industry uses this order as a reference only, and the general public may find it of interest.



## 3. Where You Can Find This Order. Flight Standards personnel can find this order at <http://fsims.avs.faa.gov/>. Operators and the public can find this order at <http://fsims.faa.gov>.

4. Cancellation. This order cancels the following Federal Aviation Administration (FAA) orders and incorporates their entire content into this directive (See Appendix A.):

• FAA Order 8300.10, Airworthiness Inspector's Handbook, and all numbered changes

• FAA Order 8400.10, Air Carrier Operations Inspector's Handbook, and all numbered changes

• FAA Order 8700.1, General Aviation Operations Inspector's Handbook, and all numbered changes

5. Explanation ofChanges;·

a. Sole Source for Policy and Guidance. FSIMS is now more than a data repository of Flight Standards policy documents. The Director, Flight Standards Service, intends for FSIMS to be the sole source ofpolicy and guidance for aviation safety inspectors.
(l) The establishment ofFSIMS as an agency directive does not mean we have removed the contents ofthe cancelled directives. We have included the contents ofthe cancelled orders in this directive.
(2) The functional capabilities ofFSIMS, e.g., searches conducted according to inspector specialty, etc., have not changed. Rather, to simplify coordination, to eliminate confusion between electronic and printed versions ofvarious orders, and to confirm FSIMS as the single Flight Standards policy document, we have made FSIMS a stand-alone, electronic directive.



### Distribution: Electronic Only lnitiate_d By: AFS-1

# ~**~--z-** 0 ( "(_ 

### 6 ) '?.. 

# =It ' 

### U.S. Department of Transportation 

### Federal Aviation Administration

.**~!c'l,: r;}~-** **CertifiG~d~R.eturn** 

### Receipt

File Number: 2004EA91 0073

Dr. Michael Selig, CEO Mand R Helicopters LLC Office ofAviation Medicine



### 2045Westgate Drive, Suite 

### 101 Bethlehem, PA 18017

Dear Dr. Selig BOO Independence Ave., S.W. Washington, D.C. 20591



# APR 2 2004

On March 3, 2004, you were informed that the Federal Aviation Administration (FAA) was investigating alleged violations of 49 CFR Part 40 and 14 CFR Part 121, Appendices 1

### and 

### J. After reviewing the evidence compiled during the inspection of M and R Helicopters LLC on February 26, 2004 and the documentation submitted in your response dated March 18, 2004, it appears that M and R Helicopters LLC did not comply with all provisions of the Antidrug and Alcohol Misuse Prevention Programs as detailed below:



### 1. M and R Helicopters LLC's specimen collection procedures do not 

## meet the**requiremen~s** 

### of49 CFR 

## Part 40. Specifically:

M and R Helicopters LLC's collector (Denese Miller/CHS 02) failed to complete Step 1 itom E, Test to Be Performed, on the Federal Drug Testing Custody and Control Form.

Corrective Action: At the inspection outbriefing, M and R Helicopters LLC agreed to ensure the collector would complete Step 1on the Federal Drug Testing Custody and Control Form. In the response dated March 18, 2004, M and R Helicopters LLC submitted a copy of an Error Correction Training Checi\)Jst from Clinical Laboratories, Inc. documenting traini!lg for Denese Miller.



### 2. M and 

### R Helicopters lLC's breath alcohol**~esting** 

### procedUires do**no~ mee~**  

### the requirements of49 CFR !Part 40. Specifically:

M and R Helicopters LLC's Breath Alcohol Technician (Denese Miller/CHS 02) failed to complete Step 1 item C, the Designated Employer Representative, on the Department of Transportation Alcol1ol Testing Form.

Corrective Action: At the inspection outbriefing, M and R Helicopters LLC agreed to immediately ensure that the Breath Alcohol Technician would complete Step 1of the Alcohol Testing Form. In the respc>nse dated March 18, 2004, M and R Helicopters LLC submitted a copy of an Error Correction Training Checklist from Clinical Laboratories, Inc. documenting training for Danese Miller.

# ·~~~ 

# 1{v

--z..o 1

# c P 

## r '2. 

# 7

### 3. lVI and R Helicopters LLC f(lliied to maintain recon:ls as required 

### by 49 CFR Part 40. 

### Specifically:

Mand R Helicopters LLC's laboratory failed transmit the employer specific aggregate statistical summary for 2003 to the employer on 

## a semi··annual basis.

Corrective Action: At the inspection outbriefing, 

### Mand 

### R Helicopters LLC agreed to immediately ensure the lab 

## will send statistical summaries for 2003. In the response dated March 18, 2004, 

### M and H 

### Helicopters LLC submitted a copies of

### aggregate statistical summaries for 2003 from LabCorp.

This is 

### to confirm that you 

### have satisfactorily corrected the 

### above issues. We have given consideration to all available facts and concluded that these issues do not warrant legal enforcement action. 

### lt11ieu of such action, we 

### are issuing this letter, which will be made 

### a matter of record. We expect that in the future M 

### and R 

### Helicopters LLC's Antidrug and 

### Alcohol Misuse Prevention Programs will be in compliance with applicable regulations. Sincerely,

# -Q tl

## ~ ""\

·--- 

## ' <:'.--···

• i

..., -**~**

# ~· /I 

# (]C,(2;.

Vincent 0. Roots Inspector, Compliance and Enforcement 2

### Helicopters Inc. 

### Anti-Drug Program Policy Receipt

In connection with any employment application to Helicopters Inc. (the Company), I have received a copy of, read, and understand the Company's Anti-Drug Program Policy.

In consideration of being considered for employment, 

### I hereby acknowledge receipt of requirements pertaining to the collection and testing by the Company or its representative of a urine sample. I understand that testing will be conducted to determine the presence of marijuana, cocaine, opiates, phencyclidine (PCP), and amphetamines or a metabolite of those drugs in my system, and that the presence of such drugs will disqualify me from employment.

I also understand that, to work in 

## a safety-sensitive position (as defined in 14 CFR Part 121 Appendix 

### 1), I will be subject to random, post-aqcident, reasonable suspicion, return-to-duty and follow-up testing, and that failure of any such test may result in termination.

Finally, 

### I represent 

### that I have never failed or refused to take 

## a drug test conducted in accordance with 14 CFR Appendix 

### f.

Print Name

- .., ., - '),.-y· /
'-

..·,-;,...._ c.r-t..."\.....) .; 

### Date



### 6 Anti-Drug-Updated 2005.11l



# ·j 

# I I**~-, -~~~,-** **_,~--~~·~** _ ••**-i~•--, r~~-o--·~...--.....,..,.......-.** 

. .. .**~ ~.**  . ' '

. 

### . . 

### . ... '
. . .**:~;** 

### :

. :.:. ",·



### 1 Earhart Drive 0 

### Suite 0 

### 11 ° 

### Coatesville, PA 19320 ° 

### 484-288-2800 wwwoeramedllcocom



### VVednesday,Novernber17,2010

Edward Baker 5 Sarah's Lane East Stroudsburg, PA 18302

Dear 

### Ed,

This letter is being written 

### to verify that 

### Edward Bakerwas included 

### In EraMED's drug program during his dates ofemployement: 5-1-2006 to 11-4-2007.



### Ifyou have any questions or concerns please contact me atyour convenience. .. ·· ..

0

·-, 

### Thanks, 

# .,.

....

0 

### Melissa Rodriguez Accounting Manager mrodriguez@eramedflc.cofl'!

.

# -~ '**--~**



## ..

# ·-- IOP9 Inspector Statement



## On Tuesday, July 21, 2009, 

## the FAA inspection team (Latonya Williams and Kimmy Poon) conducted an inspection of Mand R Helicopters, LLC's drug and alcohol programs. During the inspection, it was identified that Mand R Helicopters, LLC did not determine that Eugene Mcintosh and Edward Baker (contractors) were covered under a FAA-mandated drug testing program and an alcohol misuse prevention program prior to using their services. · ·
In regards to Eugene Mcintosh, the ·president/drug program manager of M and R Helicopters, LLC, Dr. Michael Selig, stated that Eugene Mcintosh was worl<ing for Scott Richard Aviation, which is a Part 145 certificate holder that has FAA mandated drug and alcohol testing programs. The inspection team visited Scott Richard Aviation on July 21,

- 2009, 

## and confirmed with Scott Richard Aviation that it does have an active drug and alcohol testing program. It was also verbally confirmed through Scott Richard Aviation that Eugene Mcintosh is covered under Scott Richard Aviation's programs. However, Eugene Mcintosh was compensated by Dr. Michael Selig and not Scott Richard Aviation.

In regards to Edward Baker, Dr. Michael Selig stated that Mr. Bal<er works for Flight Methods as a 9hief Medivac pilot. The inspection team inquired of information pertaining to Flight Methods from Dr. Selig and he indicated that he**~id** 

## not have any ·information such as atelephone number or address for the company. A review of the FAA's databases (SPAS and iCETS) did not reveal that Flight Methods has an FAA approved drug and alcohol testing program. Furthermore, a review of FAA's databases (SPAS and iCETS) also does not identify Edward Bal<er, Ill as having an FAA approved drug and alcohol testing program.

# ~~ Latony illiams, Inspector Eastern Compliance and Enforcement Center Drug Abatement Division
,, Office ofAerospace Medicine



## FOR OFFICIAL USE ONLY

# ~

# ~s \ t-. 

# ..:+---

# ~O(V Public availability

# to be determined under 5 USC 552**-------==========-·-==---=-=------_·:=-~------ =~------**  

# --U.S. Department of Transportation 

### Federal Aviation Administration



### June 19, 2007 Flight Standards District Office



### Mr. Michael 

## B. Selig President, M 

### & R Helicopters, LLC. 2045 Westgate Drive Bethlehem, PA 18017

Dear Mr. Selig: 961 Marcon Blvd., Suite 111 Allentown, Pennsylvania 18109 610-264-2888; Fax 610-264-3179



### On Friday, June 15, 2007, Michael B. Selig failed his Airman Competency 

## I Proficiency Check during the oral portion ofthe examination.

A competency 

### I proficiency check is required for operations under the provisions ofFederal Aviation Regulations 14 CFR Part 135. Michael 

## B. Selig 

### is not to act as a pilot during 14 CFR Part 135 operations under the provisions ofyour air carrier operation until satisfactory completion ofsaid check.



## Ifyou have any questions relative to this matter, please feel .free to contact me.

## S~nc7y, .

# ~L~£w.rl

v- 

### Frank Alotta Jr. Principal Inspector OperatiO:QS

# ( 

# \

PENNSYLVANIA DEPARTMENT OF STATE CORPORATION BUREAU

## Certificate ofAmendment-Domestic (15 Pa.C.S.)

# ~imited Partnership(§ 8512) 

# Q**~imited** Liability Company(§ 

### 8951) Entity #: 2999729 I Date Filed: 09/09/2008 i Pedro A. Cortes ! Secretary of the Commonwealth



# r-------..:._-----.-. ----------,Dotument will be returned to the Name 

# fl\
,( l-

_{ 

# (\ell h name and address you enter to 1 

### 'TC>'e -..__)1 :1_ tbe left.
Address

### &DLf~ 

# 'vJcl**~offe** 

# Dr\re**~& ~**  ¢::

### ~~**Stater~.** ZipCode \()() 

# 17

Fee: $70

\ In compliance with the requirements ofthe applicable provisions (relating to certificate ofamendment), the undersigned, desiring to amend its Certificate ofLimited Partnership/Organization, hereby certifies that:

I. The name ofthe limited**~~p/limited** liability compariy is: 

## f!\ 

# &R Hiltc IS. 

# LLC.

2. The date offiling ofthe original Certificate ofLimited Partnership/Organization:

# 4-pr./ ] ) ;<cf) (

3. Check, and 

### if appropriate complete, one of thefollowing:

# ~e amendment adopted by the limited partnership/limited liability company, set forth in full, is as follows: 

# V

CL

# ~- 

# c**~ct**

# 1\.1-t. 

# 4-o 'PR**~It**

# cw**ft~** 

# UL

D The amendment adopted by the limited partnership/limited liability company is set forth in full in Exhibit A attached hereto and made a part heteof.

..

4. 

### Check, and

## if appropriate complete, one of thefollowing:

0The amendment shall be effective upon filing this Certificate ofAmendment in the Department ofState. 

### [J_ The amendment shall be effective on:

____at

__ _ Date Hour

Commonwealth of Pennsylvania LIMITED PARTNERSHIP AMENDMENT 4 Page(s)



## ZUOBSEP -9 

# fi>: iJ·; 

## 49


## PA. OE.PT. OF**Sf~,** 

## ·- 111111111111

# IIIIIIiiii

# IIIII111111111111111

# IIIII11111111111111I Iii T0825311005



### '--------- 

## \' 

# \-z-

### t DSCB: 15-8512/8951-2

5. Check 

### if the amendment restates the Certificate of LimitedPartnership/Organization:

# ~he restated Certificate ofLimited Partnership/Organization supersedes the original Certificate ofLimited Partnership/Organization and all previous amendments thereto.

IN TESTIMONY WHEREOF, the undersigned limited partnershipl!imited liability company has caused 

### this Certificate ofAmendmentto be executed 

### this

# ~day**of~()**

Name ofLimited Partnership/Limited Liability Company

# ()i:ia~~~

itle <

NOTARIAL lEAl.

USAA 

## em

. Notary Public I!THLEHEM CITY, UiHIGH COUNn' My Commllllon 

### lxptr., May 10, 2011· em wo 

### ;:,ec. 1ao.Dl 

### ettecti'1:.•e asdf**.r::::i.~ra)'.P** 

## ·· ·· --**·~** 

## ·**~-- ...,-~r~·':l** **~-~-~**

1 nf1 '



### ..**--~-~-----····** 

### -- ----- ---**··-~-** 

### --- .. .. . ... -· ···---- .. ------------ .. - -· ... . -... - ·-·-····! 

## Part 135 OPERATING REQUIREMENTS: COMMUTER AND ON-DEMAND 1 

## OPERATIONS AND RULES GOVERNING PERSONS ON BOARD SUCH 

# I

. AIRCHAFT I

## --------·------------··---··-·---··-·--· -··........-·--····-·-··-·······-'

····---·-------··-···--- ·---·---··---·---···---·--···-··-·--------··-·-···----! Subpart E--Fiight Crewmembelr 

# I 1 

## Requirements 

# I
i

....

### -------·--·------· --- ---------- ··--·--·-· - 

### ------···· ------- .. --··· 

### ·------- -- ---·· 

### ------------ --------· ---·- ------ --· 

### ----**·---~** 

## Sec. 135.251
[Removed and Reserved]

Arndt. 135-117, Eff. 7/13/09

·**Do«.a.nme~~ in~tm·y**  

### 1\!otice of**Pt·opo$~~d Rulemaldn~J**  

### Actiom•: 

## Not Applicable.

Final Rule Actim1s: 

## Final Rule. Docket No.**6_QQ~::Qg;}Z;** 

## Issued on May 7, 2009**FJU!~.gov** Home ! Pt•lvaey Polley ; Web Policies & Notices ; Contact Us ; Help

Recaders & Viewers: PDF Reader

### ~1S Word Viewer l\15 Poweti>oint ViGwer : fViS 

### r:xcel Viewer

. !.ip 

# -z,-C

# Iz..__O 

# I2..

# +**~··** 

# R-)

./! .h

# ~/~~

# .J Subpart E""Fiight Crewmember Requirements

-**"---~---** .**-~~-** .... -. --···· 

### ·--

. ·--. ···-- 

### ··- .. 

### ---. 

## Sec. 135.255
[Removed and Reserved]

Arndt. 135"117, Eff. 7/13/09 -·--·--
... ·--··-·. ··-·--· ·-·

## ~-- 135.251 f\11 

## & R Helicopters, LLC. will be a member of an 

# FAAa approvedConsortium, or will have its own approved program, 

# with membership initiated 

# at the time 

# ATCO certificate is issued. Consortium membership will 

# insure compliance with Appendices I of FAR Part 121. 

# M

# & RHelicopters, 

# LLC. will insure 

# that any contractor who

## per~Q_r~s**tlla..iD.t~DJm_ce** 

# _ort

# i_t_s

__**qircr~_fi_li_~9v.~r~cfJ?Y**

# -~!1:.~~~-~~P.eroy~9_.9.!~9.~t~~-~!Xl_g__

# P.r29_~af'!1..:. 135.253(a) M 

# & R Helicopters, LLC. will comply with the provisions of FAR Part 135.253, in regard to employees who per.form
a function listed in Appendix 

# J 

# to Part 121 of this chapter,
as set forth below.
135.253(b) M 

# & R Helicopters, LLC. will allow no covered employee, as described in Appendix I of FAR Part 121, to report for duty or to remain on duty, and no covered employee shall report for duty for any covered position, if that person has an alcohol concentration of 0.04 or greater.
135.253(c) M & R Helicopters, LLC. will not permit the use of, and no covered employee of M & R Helicopters, LLC., will use, alcohol while performing any safetyosensitive function.
135.253(d) M 

# &R Helicopters, LLC. will not allow, nor will any covered employee perform, any flight crewmember duties within 8 hours of using alcohol. M 

# & R Helicopters, LLC. does not have any covered employees other than flight crewmembers.
135.253(e) NoM & R Helicopters, LLC. covered employee will use alcohol**\~** 

## for 8 hours following an accident involving an aircraft for G'

# ~**fe>:r~t~** which that employee has performed a safety-sensitive**~** 

## function, unless and until he has been given a post-accident 

# ;U' 1


## alcohol test, or unless M & 

## R Helicopters, LLC. has determined 

# M ""'

# ~ that the employee's performance could not have contributed to the accident. 

# /,V
_..--/



## 38

## i

.**~** 

# 135.253(f) No covered employee of M**(~t** 

# RHelicopters, LLC. shall refuse to 

# submit to a post.,accident, random, reasonable suspicion,
or follow

..up alcohol test 

# required 

# by Appendix J 

# of Part 1 21 of this chapter; and M**8~** 

# RHelicopters, LLC. will not permit 

# any employee 

# who refuses such a test·to perform any safety"· 

# sensitive function.
135.255(a) M& RHelicopters, LLC. 

# will furnish to the FAA a certification & (b)**statemE~nt,** 

# and will implement a formal Alcohol Misuse 

# Prevention Program, in accordance with Appendix 

# J of Part 

# 121
, no later than the start of operations 

# under FAR 1 35. All 

# M

# 8t RHelicopters, LLC. employees who perform a safety-sensitive function**wili'be''s'l.11Je~(~o** 

# testing_for

# _?lcoholmTsuse--fn-accorda-nce.with Appendix 

## J of Part '121.



## 39 

# l l

### # Description 1 Opn Spec MR3A0201<- DTD 20080329

- 2 pp 2 Opn Spec AA Misuce Prev Prgm

- 20050815

- 2 pp 3 Opn Spec AC Using N98CM #4056- dtd 20050815

- 1 pp 4 AC Maint N98CM

- dtd 20080724- Baker performed wk on that date- 1 pp 5 Flight log N98CM 2-10-07 to 10-17-04 6 Random Eligibility Rpt 01/01/2007-07/21/2009-6 pp 7 NPCP dtd 20090814- 3 pp 8 Rresponse dtd 20090829 - 3 pp 9 Email trail Hargleroad

- 2 pp 10 Ltr Baker to Stevenson

- dtd 20101019

- 1 pp 11 14 CFR 121, final rule for DAA program- pp 1840-1860 12 FR, Vol 74, no 92, May 14, 2009

- pp 22649-2268 13 Legal_lnterpretation

- 2006WL3792063 : 2 pp 14 Sanctions Table3 2150.38

- 

### TAKEJN OF2150.38 15 FSAD/TAP- Cert MR3A020K- pp 2 16 Record of surveillance MR3A- 3 pp 17 18 19 20 21 22 23 24 25 26 27 28 29 ID 

### IN

X X

X X
X X

X X
X X

X X
X X
X X

X X

X X

X X
X X
X X

X 

### NO

X X

X X

X

X
X
X

X
X
X

## EXHIBIT

# ----------------------------------------~

# I 1\-J

u.s. Department ofTransportation Federal Aviation Administration



### AOOl. Issuance and Applicability Operations Specifications



### HQ Control: HQ Revision: 05/09/03 02c

a. These operations specifications are.issued toM AND R HELICOPTERS LLC, whose principal base of operation is located at:
Primary Business Address: 2045 Westgate Drive Bethlehem, PA 18017 Mailing Address: 2045 Westgate Drive Bethlehem, PA 18107

The holder ofthese operations specifications is the holder ofAir Carrier CertificateNumber MR3A020K and shall hereafter be referred to as the certificate holder. The certificate holder is authorized to conduct:

On Demand (135) operations in Common carriage pursuant to Title 14 Code of Federal Regulations (CFR) Section 119.25(b)- On DemandHEL and provided, at all times, the certificate holder has appropriate written economic authority issued by the Department ofTransportation.

The certificate holder shall conduct these kinds ofoperations in accordance with the specific authorizations, limitations, and procedures in these operations specifications and all appropriate Parts ofthe CFR.

b. These operations specifications are effective as ofthe "Date Approval is effective" listed in each paragraph and shall remain ineffect as long as the certificate holder continues to meetthe requirements ofPart 119 as specified for certification.

c. The certificate holder is authorized to use only the business name which appears on the certificate to conductthe operations described in subparagraph a.

d. The certificate holder is authorized to conduct flights under 14 CFR Part 91 for crewmember training, maintenance tests, ferrying, re-positioning, and the carriage ofcompany officials using the applicable authorizations in these operations specifications, without obtaining

# aLetter ofAuthorization, provided the flights are not conducted for compensation orhire and no charge ofany kind is made for the conduct ofthe flights.

Print Date: 3/29/2008 A001-l CertificateNo.: MR3A020K M AND R HELICOPTERS LLC.. ¥4' . -5 -# s.s

..;
U.S. Department ofTransportation Federal Aviation Administration @f ·--4* ' • t.&i



### Operations Specifications

I. 

### Issued by the Federal Aviation Administration. r· fl ·¥9 3!



### 2. These Operations Specifications are approved by direction ofthe Administrator.

ALOTTA, FRANK Principal Operations Inspector g. !if-t&#



### EA05

3. DateApproval is effective: 2/4/04 AmendmentNumber: 3 4. I hereby accept and receive the Operations Specifications in this paragraph.

Selig, Michael B. 

### Agent for Service Date: 2/4/04

Print Date: 3/29/2008 AOOl-2 Certificate No.: MR3A020K M AND R HELICOPTERS LLC

## EXHIBIT 

# I 

# A-z

U.S. Department ofTransportation Federal Aviation Administration Operations Specifications

A449. Antidrug and AlcoholMisuse PreventionProgram HQ Control: HQ Revision: 01/22/04 000

a. The certificate holder who operates underTitle 

### 14 Code ofFederal Regulations (CFR) Part 

### 135 certifies that itwill complywiththerequirements of 

### 14 CFR Part 

### 121 Appendices

### I and J and 49 CFRJ>azt40 for itsAntidrug and Alcohol Misuse PreventionProgram.

b. Antidrug and Alcohol Misuse Prevention Programrecords are maintained and available for inspection by the FAA's Drug Abatement Compliance and Enforcement Inspectors atthe location listed in Table 1 below:

Table 1 Location ofAntidrugand Alcohol Misuse Telephone Number: Prevention ProgramRecords: Address: 2045 Westgate Drive (610) 769-7000 Address: City: Bethlehem State: PA Zip code: 18017

c. Limitations and Provisions.
(I) Antidrug and AlcoholMisuse PreventionPrograminspections and enforcement activitywill be conducted exclusivelybythe DrugAbatementDivision. 

### All questions regarding thls program should be directed to the DrugAbatement Division. (2) The certificate holdermustimplementits Antidrug and Alcohol Misuse Prevention Programs fully in aCcordancewith 14 CFRPart 121, AppendicesI and J, and 49 CFRPart40. (3) The certificate holderis responsible for ensuring thatits contractors whoperfonn safety-sensitive work for the certificate holder are subjectto Antidrug and Alcohol Misuse Prevention Programs. 

### (4) The certificate holderis responsible for updating this operations specificationwhen any changes

occur inthe following: 1 '' ',. •

. ,· ••, ., ..., . (a) Location orphone number where the Antidrug and Alcohol Misus(fPrev.ention Records are kept (as listed in Table 1above).· · · · . '· (b) Ifthe certificateholder's number-·efsafety..sensitive employees goes to

## ·so and above, or falls below 50 safety-sensitive employees. CJ;;_i "" .: :

.. :· .;.•:· (5) The certificatehol.der with 50 ormore employeesperforming a**safety-sensiti~e** function on January 1 ofthe calendar yearmust submit an annual reportto the DrugAbatement Division ofthe FAA. The**certifica~** holder with fewer than50 employees performing a safety-sensitive function

onJanuary 1 ofany Calendar yearmust submitan annual reportupon request of theAdministrator,


### as specified intheregulations.

The certificateholder has fewer than 50 safety-sensitive employees.

PrintDate: 8/15/2005 A449-l CertificateNo.: 

### MR3A020K M AND R HELICOPTERS LLC 

# FOROFFICIAl USEONLY 

# Publicavailablfi1y

# to be determined under

# 5USC552U.S. Department ofTransportation Federal Aviation Administration Operations Specifications

1. Issued bythe Federal Aviation Administration. 2. These Operations Specifications are approvedby direction ofthe Administrator.

ALOIT A, FRANK Principal Operations Inspector EA05

3. Date Approval is effective: 214/04 Amendment Number: 0 4. I hereby accept and receive the Operations Specifications inthis paragraph.

Selig, Michael B. Agent for Service Date: 2/4/04



## ..

__

### ,. .



### .**·~ ·~** 



### . '\ 

## '

.)· 

## .. .

# . .. ·,. . .'

## •.**~~~-**

Print Date: 8/15/2005 

### A449-2 CertificateNo.: MR3A020K 

### MAND R HELICOPTERS LLC



# _ FOROFFICIALUSEONLY 

# Publicavailabilityto bedetermined under5 USC552U.S. Department ofTransportation Federal Aviation Administration

DOSS. Aircraft Listing Operations Specifications

HQControl: HQ Revision: 02/06/98 02a

a. The certificate holder is authorized to conduct operations under 14 CPRPart 135 using the aircraft identified onthis operations specification.

SerialNo. AircraftM!M/S 

### 4056 BELL-206-B

1. Issuedbythe Federal AviationAdministration. 2. These Operations Specifications are approved by direction oftheAdministrator.

Henninger, Gerald Principal Maintenance Inspector EA05

3. DateApproval is effective: 12120/04 AmendmentNumber: 2 

### 4. Ihereby accept and receive the Operations Specifications in this paragraph.

Selig, Michael B. Agent for SerVice Date: 12/20/04

.(**•,"~** \
.._ "\ ' : ' I



## .·
....

PrintDate: 8/15/2005

.D085-l CertificateNo.: MR3A020K M AND R HELICOPTERS LLc 

# FOR OFFICIALUSEONLY 

# Publicavailabilityfo be

# determinedunder5USC552 EXHIBIT 

# A- 3·**~ ~**  - •- -**~** A Subsidiary ol Textron Inc. 

# htii!oPTERLUof1 

# 1;-'1**·~** POST OFFICE BOX 482 • FORT WORTH, TEXAS 76101 

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## .**~and**

## om Eligibility Report

Customer: M & R HELICOPTERS**~** 24913

Date Range: 01/01/2007- 07/21/2009

Location: M & R HELICOPTERS

- MRH001
Mode: FAA

Location: M & R**HELICOPTERS~** MRH001
Mode: FAA

Location: M & R HELICOPTERS- MRH001
Mode: FAA

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- MRH001
Mode: FAA**,.,...,...,..,....,.~,.....,...,..,......,--...,.-.::.,...·::r::-.~""~!n,...,.,:,....!t·,..,··** 

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Location: M & R HELICOPTERS

- MRH001
Mode: FAA

pullyeli!r · 2007

Location: M & R HELICOPTERS

- MRH001
Mode: FAA

Run on: 7/21/2009 3:43:31 PM ReportVersion: 1.0 

# . . FOR OFFICIAL USE 

# ONLY 

# Pub/tcavaffabllily

# tobe determined

# under51/SC552 EXHIBIT 

# A-/;

1of6emplno XXX-XX-Gl SELIG, MICHAEL

SELIG, MICHAEL

name

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. . SELIG, MICHAEL



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## name SELIG, MICHAEL 

## .,andom Eligibility Report

Customer: M 

### &R HELICOPTERS

- 24913

Date Range: 01/01/2007- 07/21/2009

Location: 

### M& R HELICOPTERS

- MRH001
Mode: FAA

Location: M& R HELICOPTERS'" MRH001
Mode: FAA

Location: M & R HELICOPTERS

- MRH001
Mode: FAA

pull-year.
2007

Location: M & R HELICOPTERS- MRH001
Mode: FAA

Location: M & R HELICOPTERS

- MRH001
Mode: FAA

pull year
2007

Location: 

### M & R HELICOPTERS

- MRH001
Mode: FAA

pull year
2007



# FOR OFFICIAl USEONLY .,.-; r

Run on: 7/21/2009 3:43:31 PM Report Version: 1.0 

# PublicavaKabilityto bedeterminedunder5USC552 ·,i,.

2of6SELIG, MICHAEL

SEL,IG, MICHAEL

name .·.::·.:·. SELIG, MICHAEL

SELIG, MICHAEL

SELIG, MICHAEL

SELIG, MICHAEL

Run on: 7/21/2009 3:43:31 PM Report Version: 1.0 

# nandom Eligibility Report
Customer: M & R HELICOPTERS- 24913

Date Range: 01/01/2007- 07/21/2009

Location: M & R HELICOPTERS- MRH001
Mode: FAA

Location: M & R HELICOPTERS

- MRH001
Mode: FAA

P.ullyear
2008

Location: M & R HELICOPTERS

- MRM001
Mode: FAA

. Location: M & R HELICOPTERS- MRH001
Mode: FAA

Location: M & R HELICOPTERS- MRH001
Mode: FAA

Location: M & R HELICOPTERS

- MRH001
Mode: FAA



# . FOROFFICIAL USE 

# ONLY 

# Publicavailabilitytobe determined under

# 5 

# usc552 3 of6 ·empl.rio SELIG, MICHAEL

SELIG, MICHAEL

SELIG, MICHAEL

SELIG, MICHAEL 

## .,andom Eligibility Report

Customer: M & R HELICOPTERS- 24913

Date Range: 01/01/2007.- 07/21/2009

Location: M & R HELICOPTERS- MRH001
Mode: FAA

Location: 

### M& R HELICOPTERS- MRH001
Mode: FAA

Location: M & R HELICOPTERS

- MRH001
Mode: FAA

. pull.year 2008

Location: M & R HELICOPTERS

- MRH001
Mode: FAA

Locatior: M &R HELICOPTERS

- MRH001
Mode: FAA

Location: M & R HELICOPTERS

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Mode: FAA

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# . ·FOROFFlCtAlUSEONLY 

# PublicavaUabintyto 

# bedetermined under5 USC552 4of6SELIG, MICHAEL

SELIG, MICHAEL 

# .....andom Eligibility Report

Customer: M & R HELICOPTERS

- 24913

Date Range: 01/01/2007- 07/21/2009

Location: M 

### &R HELICOPTERS

- MRH001
Mode: FAA

Location: M & R HELICOPTERS

- MRH001
Mode: FAA

Location: M & R HELICOPTERS

- MRH001
Mode: FAA

pull year.
2009

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Mode: FAA

___ __._ ___________ _..... ____**~--------"1--...;.._--:....;.:.....J.>,.~'** ·,: ··:. 1.

name. Location: M & R HELICOPTERS_.-:.fv1RH001
Mode: FAA**p~Uyear** 2009

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Mode: FAA**·~:** '· I I 1:,.

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### ·-

....... ···· -·····-**~··•·:** . ......: -·-
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... Pl!llyear SELIG, MICHAEL 2009



# FOR OFFICIAl USEONlY

Report Version: 1.0 

# Publicavailabilityto bedetermined under5 USC552 Run on: 7/21/2009 3:43:31 PM '
. 5 of6SELIG, MICHAEL**~-- ~----------------,-----------------** 



# •'"andom Eligibility 

# Report

Customer: M & R HELICOPTERS- 24913

Date Range: 01/01/2007- 07/21/2009

Location: M & R HELICOPTERS- MRH001
Mode: 

### FAA

.' 

### ..



# FOR·OFFICIAlUSE

# ONLY •**~** • f

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Run on: 712112009 3:43:31 PM

. Report Version: 1.0 

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## ·""·· 

# EXHIBIT 

# ! 

# A-7 D .1!1

U.S. Department of Transporration Federal Aviation Administration



### August 14, 2009

File Number: 200980950434



## Dr. 'Michael B. Selig President M and R Helicopters LLC 2045 Westgate Drive Bethlehem, PA 18017

Dear Dr. Selig: 1701 Columbia Avenue College Park, GA 30337



## Certified Mail- Return Receipt Requested

On July 21 and 23, 2009, we inspected M and R Helicopters LLC's drug and alcohol testing programs to determine compliance with 49 CFR part 40 and 14 CFR part 120 (formerly 14 CFR part 121, appendices I and J). As a result ofthis inspection, the following apparent violations were discovered: ·
1. M and R Helicopters LLC did not determine that Eugene Mcintosh and Edward Baker (contractors) were covered under a FAA-mandated drug testing program and an alcohol misuse prevention program priorto using their services.

2. M and R Helicopters LLC did not conduct pre-employment.drug tests and receive verified negative test results P.fior

# to hiring Eugene Mcintosh and Edward Baker to perform safety-sensitive functions. ·

This letter is to inform you that these matters are under investigation by the FAA. You may discuss these matters with me or submit a written statement, or both, within 10 days of receiving this letter. Please contact me at (404) 305-6175 ifyou have questions about these matters. A written statement should include all pertinent facts and mitigatilig circumstances that you believe may have

# abearing on these matters. Send yourwritten statementto:
Attentjon: Latonya Williams, AAM-862 Federal Aviation Administration Office ofAerospace Medicine Drug Abatement Division

. 1701 Columbia Avenue

College Park, GA 30337

## hFoffCiFFiCi~rusforftve_arg/headquarters_

# affices/avstaffices/aam/drug_alcohov Public availabilityto bedetermined under5 USC55.2 ONCURRENCES fR?UTING SYMBOL AAM-862

rNtTlALS!SIG LWilllams

AT!; 08/14/2009

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## '

Ifwe do not hearfrom you within the specified time, our report 

## will be processed without the benefit ofyour statement. Sincerely,

I 

## 11tl8Ri'f'Pft.

# ~e.1rlf.I.WM

Latonya Williams, Inspector Eastern Compliance and Enforcement Center Drug Abatement Division Office ofAerospace Medicine

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# fQR 

# OFFICIALUSE ONlY Federal Aviation Administration 

# Publicqvailabi!Hyto bedetermined under5 USC552"f""

• Complete"items 1, 2, and 3. Also complete Item 4 If Restricted Delivery Is desired.
• print your name and address on the reversE!

so that we can return the card to yciu. · · • Attach this card to the beck ofthe mallpleca,
or on the front If space permits.
1. MieleAddressed to;



### Dr. Michael B. Selig President M and RHelicopters LLC 2045 Westgate Drive Bethlehem, PA 18017

# -~~~~c~~N~um~~~~·~~------~==7~0~0~7~1~4=9~D==D=O=D~2~3=7=5=4========~li (r1ansferfrom servlcs/abel}
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### 3811, February 2004 Domestic Return Recalpt 102595-02-M-1540 

### 1l



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### •

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### A'ii'N: AAM-862/Latonva Williams 

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# FOROFFICIALUSEONlY 

# Publicavailabilityto be 

# determined**unde~** 

# 5 USC552

## August 29, 2009


## Latonya

## Williams, AAM-862 

# FAA Office ofAerospace Medicine 1701 

## ColumbiaAvenue College Park, 

## GA 30337

Sent by 

## Regular Mail-CS 

## M&R Helicopters DR 

## Helicopters (DRH)'



## 2045 

## Westgate Dr 

## Suite 205 

## Bethlehem, Pa 18017

Re: July 23, 2009 Inspection file 200980950434



## Dear Ms Williams: 

# I EXHIBJ'T 

# A-8

In response to yourletter dated August 14, 2009 

## and our conversation on August 24, 2009 

## regarding alleged violations, I would like to direct your attention and haveyou refer to mypriorcorrespondence dated July 23, 2009 

## that addresses some ofthe initial items you made me aware ofduring the inspection.

Item Number 1: 

## states that DRH 

## did not determine that Eugene Mcintosh and Edward Baker were covered under an FAA-Mandated drug testing program prior to using their services.

This assumption is in error; Eugene Mcintosh was continuously engaged in 

## a drug program with Scott Richards Aviation in his capacity as a full-time IA for



# .a part 

## 13-5 air**charler~·ri:ianagmg** 

## 6 

# multi.:.eiigiiie fui-bfue.arrcratfpnor to and

during his performance ofmaintenance on the DRH 

## aircraft. Scott Richards Aviation is located across the street from the Allentown FSDO.
Also, Edward Bakerwas continuously engaged in a drug program in 

## his

-- - -· ·----------·capacity·as

## -a-full-time-Medivae- Pilot-andA&P-mechanicwith Air Methods Inc-, prior to and during his performance ofmaintenance on the DRH aircraft.

Item Number 2: This is erred because itwas determined that drug testing protocols were in order with both mechanics viatheir full-time employers 

# FOROFFICIAl USEONlY J.Di1fc**availabiU~**

# to be determined 

# under

# 5**usc·~**

## dating back before 2004.

Please note that the DRH aircraft is located across the streetfrom the Allentown FSDO, at Lehigh Valley International Airport. FAA Maintenance Inspector, Gerry Henninger, who performs bi-annual records inspections, never notified DRHs Director ofOperations, Dr Selig ofthe drug consortium policy changes. Perhaps during his last 5 years ofinspecting DRH aircraft, Mr Henninger was not made aware ofpolicy changes either by the FAA.. By lack of deficiencies through repetitive inspections by FAA officers, in this regard, over this timeframe, validates that regulations were followed, that DRH was in compliance and further indicates that the FAA has contributed to the ongoing alleged violations.

DRH is investigating.the 2 

## possibilities discussed withyou. I have calls into FAA officers'JeffStooky and Steve Heche for further options as to how to become compliantwith 

## the newly disclosed regulations without any additional inconvenience to the mechanics (double testing programs), while containing costs.

I am hopeful that we can work together and come to a reasonable resolution and have this violation dismissed, thereby satisfactorily closing this matter.

Thankyou for your consideration.
Sincerely,

Michael B. Selig, MD, FACC, CFI-H



# FOROFRCtAl**~E**

# ONlY 

# ?ublfc avnitabiity

# rot-e**dt~rmined unde~** 5 

# me552

## CERTIFICATE OF SERVICE



## I hereby certifY thatI have served a true and correct copy ofthe forgoing document(s) upon the following person(s) byregular, first class mail, postage prepaid, addressed to the following:
Latonya V/illiarns, i\.A.l.VI-862 

# FAA Office ofAerospace Medicine 1701 

## ColumbiaAvenue College**Par~,** 

## GA 30337

By



## Michael Selig, MD, FACC. 2816 Orefield Rd Allentown<g**P~8104** 

## Dated

- 

# ;=e:a



# . ?!\**~**



# FOROFFICIAL

# USfONnr 

# 1\U(Cavc1fabilityto be determined

# undef

# 5USC

# 552

### 11/29/2010 10:08PM FAX



## . ' 

### 1410038/0043


## Page I of2



# EXHIBIT =m=-se=li::::M_a,;__

______ --..
________ 

# _.j A-- · tr;
From; 

## io: 

## Sent: SubjGct: 

### ''Ed Baker'' <abaker@airmethods.corri> <mselig@ptd.net> Su'lday, 

### November 28, 2010 10:41 PM 

## FW: Edward 

### L. Baker 

### Ill

Mike, 

### below is the letterfrom our Drug program manager

# to the 

### FAA. ·



## Ed Betker Base 

### lead 

## Pilot East Stroudsburg Base Air Methods Corporation 

### (570) 476-2129 phone 

### (570) 476-2128 

### fax · (570} 73Q..3l3J cell @gker@afrr:netbods.gmJ

# -----------------------------------------------------------~------------ From: 

### John Hargleroad 

### Sent; Mon 11/15/lOlO 11:40 AM To: Ed 6aker SubJect= FW: Edwatd L, 

## Baker

# m

Ed.

Hete Is a 

### c6py of

### the email that I sent Chet Stevenson with fAA drug abatement. Please feel free to call me If you need anything.
Regards,

John 

### Hatgleroad Anti-Drug and 

### Alcohol Program .Manager 

### PRIA Manager. Pilot Records Supervisor 

## Air Methods Corp 7301 

# s. Peoria St. Erzglewood, 

# co 80112 

### Off; 303-749·1373 Fax; 303-749-1383 Cell: 314-753-2482

### Jharatw-oad.Q~th.o.ds.Q.Qm



## - -..

# __,,

## ···-**-·-·-~-** 

### ......,_

### ...

## __ 

## -"-·--······--·

. 

### ·-- 

### From: John 

### HargleromJ· Sent: Thursday; October 14, 

### 2010 9:45AM 

## To: chet.stevenson@fcia.gov 

### SUbject: Edward L Baker

# m
Chet, 

## OOo

..O OMO--OO**~** 

### M---.,

...**~----·-··--·-·-H._**

## ..__ _

Edward L Baker

# fll~s been 

### continually In theAir Methods DOTAnti-Drug and 

### Alcohol

·ogram since 11/5/2007. 

### He Is 

### a. pilotwho 

## also holds a A&P 

### certlfJcate. however. he Is onder our

# m~ster

.**~** 

### . . .



## ll/29/2010tl/ 29/2010 10:09PM FAX**~0037/0043**



# --- -----··--·------·----·-------·-- --·--·

# -

... 

### -
.. 

## --
..

### -·---·-··------ 

## Page 2 of2

certificate QMIA253U and does not perform any maintenance underour repairstation certificate QMlR253U, and is notauthorl>ed orcontracted 

### byAir Methods to do 

### anyoutside maintenancefor M&R Helicopters orany 

### other operator.



### Please reply to let me know thatyou have received 

### this email, 

### Regards,

John Hargleroad Anti-Drug and Alcohol Program Manager 

### PRIA Manager Pilot Records 

### SupeNisor 

# Air Methods Corp 730 1 

### S. Peoria 

### St Englewood, CO 80112 

### Off: 303-749-1373 Fax: 303-749-1383 Celt 314-753-248.2

### jhargleroC~d@airmethods..com



# _____ _;_ 

# _________**~----** 

## ---·---- 11/29/2010

## EXHIBIT 

# I A- Ill

10/19/2010-



### Chet Stevenson Federal AviationAdministration



## Mr. Stevenson,

This is regarding ourtelephone conversation on the 15th ofOctober2010 for maintenance performed onBell 206B3 registration numberN98CM onthe dates you requested November2"d and 18th 2007 and on July 24th 2008.

Onthe 2"d ofNovember I performedrequired Main RotorHub strap replacement due to 24 month manufacturerretirementrequirements and on the 18th ofNovemberI performed therequired MainRotor RetentionNut re-torque check for this maintenance. I was compensated·via check in the amount of$880.00 Dollars.

OnJuly 24th 2008 Iperformed a main rotor trackand

# b~aJ:l~ checkperthe.request ofthe aircraft owner and for this I was compensatt!d via cheddn'themnount of$200.00 Dollars.

,.. .... :: '_._-.".:_. _._.;·.::**~incer~ly,** 

### -·

Edward 

### L. BakerIII A&P 3458278 "I • • ··.., .. ! I. 

## '



# .

.. 

## .**...~** ·:. 

### ..

/

I :' 

### il 

# J/

## EXHIBIT 

# ! 

# ------il**A~t.l** Monday, 

## January**12~** 

## 2004



# Part IV 

# Department· of T

.. ansportation

Federal Aviation Administration

14 CFR Part 121 Antidrug and Alcohol Misuse Prevention Programs for Personnel Engaged in · 

### Specified Aviation Activities; Final Rule

### 1840 Federal Register/Val. 69, No. 7/Monday, January 12, 2004/Rules and Regulations

DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration

14 CFR Part 121**.[Dock~t** No. FAA-2002-11301; Amendment No. 121-302)
RIN 2120-AH14 Antidrug and Alcohol Misuse Prevention Programs for Personnel Engaged in Specified Aviation Activities

AGENCY: Federal Aviation

- Administration (FAA), DOT.

ACTION: Finalrule.

SUMMARY: As a result ofa number of years ofexperience inspecting the aviation industry's Antidrug and Alcohol Misuse PreventionPrograms, the FAA is clarifying regulatory language, increasing consistency betweenthe antidrug and alcohol misuse preventionprogram regulations where possible, and eliminating regulatory provisions that are ·no longer appropriate. The major changes the FAA is making include the requirements for submission ofantidrug plans and alcohol misuse prevention certification statements by employers and contractors; and the timing ofpreemploymenttesting. The effect ofthese changes is to improve safety and lessen administrative burdens onthe regulated public. DATES: These amendments become effective February 11, 2004.
FOR FURTHER INFORMATION CONTACT: Diane]. VVood,Manager,Drug AbatementDivision, AAM-800, Office ofAerospace Medicine, Federal Aviation Administration, 800 IndependenceAvenue SVV., VVashington, PC 20591, telephone number (202) 267-8442.
SUPPLEMENTARY INFORMATION: Availability ofRulemakingDocuments

You can get an electronic copyusing the Internetby: ·

(1) Searching t:l).e Department of Transportation's electronic Docket Management System (DMS) VVeb page 

### (http://dms.dot.gov/search);

(2) Visiting the Office ofRulemaking's VVeb page at 

### http://www.faa.gov/avrl armlindex.cfm; or

(3) Accessing the Government Printing Office's VVeb page at

### http:// www.access.gpo.gov/su_docs/aces/ aces140.html.

You can also get a copyby submitting
a request to the Federal Aviation Administration, Office ofRulemaking, ARM-1, 800 IndependenceAvenue SVV., VVashington, DC 20591, or by calling (202) 267-9680. Make sure to identify the amendment number or docket number ofthis rulemaking.

Anyone is able to search the electronic form ofall comments · received into any ofour dockets by the
name ofthe individual submittingthe comment (or signing the comment, if submitted onbehalfofan association, business, labor union, 

### etc.). You may review DOT's complete PrivacyAct statement inthe Federal Register published on April11, 2000 (Volume 65, Number 70; Pages 19477-78) oryou may visit 

### http://dms.dot.gov. Small Business RegulatoryEnforcement FairnessAct

The Small Business Regulatory EnforcementFairness Act (SBREFA) of 1996 requires FAA to comply with small entityrequests for information or advice about compliance with statutes andregulations withinitsjurisdiction. If you are a small entity and you have a question regarding this document, you may contact its local FAA official, orthe person listed under FOR FURTHER INFORMATION CONTACT. You can find out
more about SBREF A onthe Internet at 

### http:/ !wW-w.faa.govlavr/armlsbr.efa.htm,
or bye-mailing us.at 

### -AWASBREFA@faa.gov. General Information

The General Information portion of the preamble is organized as follows:

.• Background information about the drug and alcohol rules (14 CFR part 121, appendices I and

### J, respectively).

• Two charts highlighting the principal changes in appendices I and

### J.

• Two charts highlighting the clarifying changes in appendices I and 

### J.
• Discussion ofcomments received. 

### BackgroundInformation Aboutthe Drug andAlcoholRules

The Antidrug and Alcohol Misuse Prevention Program regulations are part ofa long history ofF AA actions to combatthe use ofdrugs and alcohol in the aviation industry. For many decades the FAA has hadregulations prohibiting crewmembers from operating aircraft underthe influence ofalcohol or drugs that impairtheir ability to operate the aircraft. Because ofthebroaduse of drugs inAmerican society, the FAA adopted rules in the 1980s to require testing ofpersons performing safety functions inthe commercial aviation industry

### for certain illegal drugs. On· November 14, 1988, the FAA published
a final nile entitled, Antidrug Program for Personnel Engaged in Specified Aviation Activities (53 FR 47024), which required specified aviation employers and operators to initiate antidrug programs for personnel performing safety-sensitive functions.

Congress enacted the Omnibus TransportationEmployee Testing Act of 1991 (49 U.S.C. 45101, 

### etseq.) (the Act), requiring d,rug and alcohol testi:q.g ofair cqrrier employees. To conform with the Act, the Office ofthe Secretary of Transportation (OST) coordinated the efforts ofDepartment ofTransportation (DOT) modal administrations to address the issue ofalcohol use inthe transportation industries. OnAugust 19, 1994, the FAA published a final rule entitled, Antidrug Program for Personnel Engaged in Specified Aviation Activities (59 FR 42911), which made clarifying and substantive changes in the FAA's antidrug rule to comport withrevised DOT drug testing procedures. On February 15, 1994, the FAA published a final rule entitled, Alcohol Misuse Prevention Program for Personnel Engaged in Specified Aviation Activities (59 FR 7380). The final rule required certain aviation employers to conduct alcohol testing.

The FAA's regulatory efforts have proven to be effective in detecting and deterring illegal druguse and alcohol misuse inthe aviation industry. From 1990 through 2001, aviation employers required to reporthave told the FAA that approximately 19,400 positive preemploymenttest results have occurred. Hence, pre-employment testing has proven to be an effective detection tool for the aviation industry.

In additionto these pre-employment testresults, between 1990 and 2001 there were approximately 11,100 positive drug test results reported to the FAA by employers. For alcohol tests conducted between 1995 and 2001,· employers have reported a total of approximately 900breath alcohol test results of0.04 or greater. This is further evidence ofthe success ofthe FAA's drug and alcohol testing regulations.

· · VVhile the drug and alcoliol testing regulations have proven successful, experience has led the FAA to identify**so~e** aspects ofthe regulations that

. need to be amended. These amendments change requirements regarding: reasonable cause drug testing; periodic drug testing; the approval process of antidrug program plans; and the approval process ofcertification statements for alcohol misuse preventionprograms. The FAA is also clarifying regulatory language, · increasing consistencybetween the antidrug and alcohol misuse prevention program regulations where possible, and eliminating regulatory provisions that
are no longer appropriate.

### Federal**Regist~r/Vol.** 

### 69, No. 7/Monday, January 12, 2004/Rules and Reguiations 1841

On February 28, 2002, the FAA published a Notice ofProposed Rulemaking (NPRM), Notice 02-04 (67 FR 9365). We proposed clarifying regulatory language, increasing consistencybetweenthe antidrug and alcohol misuse prevention program regulations wherepo.ssible and eliminatingregulatory provisions that
were no longer appropriate. We proposedthese changes to improve safety and lessen administrative burdens. The commentperiod for Notice 02-04 was scheduled to close May 29, 2002, but was extended until July 29, 2002 (67 FR 37361; May 29, 2002) as a result ofpublic requests for extension.

Current section number and title In Notice 02-04, the FAA proposed to make it clear that each person·who performs a safety-sensitive function directly orby any tier ofa contract for
an employer is subject to testing. Several commenters stated thatthis was more than a clarifying change. The commenters suggested that, because
more people would have to be tested, there wouldbe an economic impact from this proposed change. In order to gather more information onthe
concerns expressed by the commenters, the FAA is not adopting the proposed revision inthis final rule and will be publishing a Supplemental Notice of Proposed Rulemaking (SNPRM) in the
near future. All other issues and comments related to Notice 02-04 are addressed and resolved inthis final rule.

This amendment also replaces "Office ofAviation Medicine" with "Office of Aerospace Medicine," wherever it appears intheregulations. 

### Charts Summarizing the Changes

The following charts summarize the principal and clarifying changes to appendices I and

### Jto 14 CFR part 121. Where the proposed change is modified inthis final rule, the FAA's reason.is discussed inthis preamble.

Summary
Principal Changes-Appendix I (Drug Testing)

Section II. Definitions

Section V. Types of Testing Required

................

Section IX. Implementing an Antidrug Program • Changes the definition of "Employer" to clarify that employer may use a contract employee to perform a safety-sensitive function if the contract employee is included in the: 1. Employer's FAA-mandated antidrug program; or 2. Contractor's FAA-mandated antidrug program while performing a safety-sensitive function

on behalf of that contractor (i.e., within the scope of employment with the contractor.)

• Changes paragraph A., "Pre-employment Testing," to require pre-employment testing before hiring or transferring an individual into a safety-sensitive position.
• Requires an employer to conduct another pre-employment test before hiring or transferring

an individual into a safety-sensitive position if more than 180 days elapse between a preemployment test and placing the individual into a safety-sensitive position.
• Eliminates periodic drug testing.
• Changes the title of the section.
• Eliminates the requirement for plan approvals. Instead requiring that: -New and existing part 121 and 135 certificate holders obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification. Only one operations specification is required for both the drug and alcohol programs. · -New and existing part 1.45 certificate holders obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification if they opt to have the drug and alcohol programs because they perform safety-sensiiive functions for an employer. Only one operations specification is required for both the drug and alcohol programs. -All other entities required or opting to have· Antidrug and Alcohol Misuse Prevention Programs register with the FAA. Only one registration is required for both the drug and alcohol programs.
• Eliminates the 60-day grace period before employers must ensure that contractors and part

145 certificate holders that perform safety-sensitive functions are subjeci to an antidrug program

. • • Requires updates to registration information as changes occur.

• Makes it clear**~hat** employers may use contractors (including part 145 certificate holders) to

perform safety-sensitive functions only if the contractors are subject to an antidrug program for the entire time they are performing safety-sensitive functions. Clarifying Changes-Appendix I (Drug Testing)

Section I..General

Section II. Definitions

..........................................

Section Ul. Employees Who Must Be Tested

.....

Section V. Types of Drug Testing Required

....... • Adds a paragraph that lists applicable Federal regulations.
• Adds a paragraph that prohibits falsification of any logbook, record, or report.
• Changes the defined term "ContraCtor company" to "Contractor" to emphasize that· "Contractor" could mean an individual or a company. • Changes the definition of "Employee" to eliminate unnecessary language.
• Adds a definition of "Hire" to ensure that we do not inadvertently eliminate anyone who was

required to submit to pre-employment testing under the 1994 pre-performance provision.
• Makes it clear that all employees who perform safety-sensitive functions, e.g., assistant,

helper, or individual in a training status, whether they are full-time, part-time, temporary, or intermittent employees, are subject to an antidrug program regardless of the degree of supervision.
• Clarifies pre-employment notification requirements.
• Clarifies random testing requirements.

### 1842 Federal Register/Vol. 69, No. 7/Monday, January 12, 2004/Rules and Regulations

Current section number and title Summary
Principal Changes-Appendix J (Alcohol Testing)

Section VII. Implementing an Alcohol Misuse

Prevention Certification. Program. • Eliminates the FAA-required Alcohol Misuse Prevention Certfication Statement. Instead the FAA is requiring: -New and existing part 121 and 135 certificate holders· to obtain an Antidrug and Alcohol

Misuse Prevention Program Operations Specification. Only one operations specification is required for both the drug and alcohol programs. -New and existing part 145 certificate holders to obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification if they opt to have the drug and alcohol programs because they perform safety-sensitive functions for an employer. Only one operations specification is required for both the drug and alcohol programs. -All other entities required or opting to have Antidrug and Alcohol Misuse Prevention Programs to register with the FAA. Only one registration is required for both the drug and alcohol programs. · • Eliminates the 180-day grace periOd before employers must ensure that their contractors

and part 145 certificate holders that perform safety-sensitive functions are subject to an alcohol misuse prevention program. • Requires updates to registration information as changes occur. • Makes it clear that employers may use contractors (including part 145 certificate holders) to

perform safety-sensitive functions only if the contractors are subject to an alcohol misuse prevention program for the entire time they are performing safety-sensitive functions. Clarifying Changes-Appendix J (Alcohol Testing)

Section I. General • Eliminates in paragraph D. the definition of "Administrator," because it is defined elsewhere in the regulations.

. • Eliminates in paragraph D. the definition of "Consortium."
• Changes in paragraph D. the defined.term "Contractor company" to "Contractor" to emphasize that "Contractor" could mean an individual or a company. • Adds paragraph H. that lists applicable Federal regulations.
• Adds paragraph I. that prohibits falsification of any logbook, record, or report. II. Covered Employees

........................................ Makes it clear that all employees who perform safety-sensitive functions,**e.g~.** assistant, helper, or individual in a training status whether they are full-time, part-time, temporary, or intermittent employees, are subject to an alcohol misuse prevention program regardless of the degree of supervision.

Discussion ofComments Received 

### General Overview

The FAA received approximately 30 comments inresponse to Notice 02-04, including comments from theAir Transport Association ofAmerica (ATA), Regional Airline Association (RAA), National Air Transportation Association (NATA), Airline Pilots Association, International (ALPA), and a joint filing by the Aeronautical Repair StationAssociation (ARSA) and 14 other entities. Appendix I-Drng Testing Program
I. 

### General

In Notice 02-Q4, the FAA proposed to add two paragraphs to this section: "ApplicableFederal Regulations" and "Falsification." These paragraphs.were designated "D." and "E." respectively. Proposed ParagraphD. included a list of Federalregulations dealing with the antidrug and the alcohol misuse preventionprogranis. ParagraphE., "Falsification," proposed to specifically prohibit falsification ofany logbook, record, orreport required to be maintained under the regulations to show compliance with appendix I. Similarlanguage prohibiting falsification is used in 14 CFR 21.2,

. 61.59, 63.20, and 65.20. The FAA received only one comment, which was supportive. The FAA is adopting the changes as proposed. 

### II. Definitions Contractor

InNotice 02-04, the FAA proposed to change the term "Contractorcompany"

. -to "Contractor" to emphasize that a contractor canbe an individual or a company who contracts with an aviation employer

..

The FAAreceived one comment regarding the proposed change from "Contractor company" to "Contractor." The commenterbelievedthat the term "Contractor company" was adequate.

The FAAhas determined that the proposed clarification more clearly articulates the intended meaning ofthe term. Therefore, we are adopting the change as proposed. Employee

InNotice 02-04, the FAA proposed to change the definition of "Employee"to clarify that an employee is either a person hired, directly orby contract, t.o perform a safety-sensitive function for
an employer or a person transferred into a position to perform a safety-sensitive function. ·

We also proposed eliminating the sentence "Provided, however, that an employee who works for an employer who holds a part 135 certificate and who holds a part 121 certificate is consideredto be an employee ofthe part 121 certificate holder for purposes of this appendix." This sentence was included atthe inception ofthe drug testing regulations, when part 121 certificate holders were required to implement drugtestirig earlier than part 135 certificate hqlders. Because all existing part 121 and part 135 certificate holders have implementedthe drug

.testing regulations, this language is no longer necessary.

The FAA did not receive any comments on the proposed changes to the definition of "Employee." We are adopting the changes as proposed. Employer

InNotice 02-Q4, the FAA proposed to change the definition of "Employer." Theproposed change was intended to make it clearthat no employer canuse a contract employee to perform a safetysensitive function unless the contract employee: is included under that employer's FAA-mandated antidrug

### Federal 

### Register/Val. 69, No. 7/Monday, January 12, 2004/Rules and Regulations 

### 1843

program; or is included underthe contractor's FAA-mandated antidrug program and is performing a safety-· sensitive function on behalfofthe contractor 

### (i.e., within the scope of employment with the contractor.)

We proposed to change the definition of "Employer" to close a loophole that
was sometimes referred to as "moonlighting." Under the moonlighting loophole, when an employee was covered under an employer's drug testing program (Employer A), another employer (Employer B) could have used that employee to perform safety-sensitive functions even when the work was unrelated to the employee's work with Employer A. In many cases, however, Employer A was unaware ofits

. employee's activities for Employer B. One problem arising from this was that ifEmployerA terminated the employee, Employer B might not know that the · employee was no longer covered by Employer A's drug testing program.

Anotherproblem was that, inthe event of

### an accident while an employee
was working for Employer B, Employer B could nothave post-accidenttested the employee because the employee was not included inEmployerB's drug testing program. EmployerA might not have been aware ofthe need to test the employee, or it might not have agreed to test the employee ifthe employee had notbeenperforming a safety-sensitive function withinthe scope of employment withEmployer A. In adopting the original rule, it was not the FAA's intentto create a situation where
a person performing a safety-sensitive function could avoidbeing tested. With adoption ofthis change, employers will onlybe permitted to rely on companies with whom they have contractual · relationships to cover testing oftheir employees.

The FAAreceived comments from

· several submitters, includingARSA and

RAA, on the definition of "Employer." Two commenters approved ofthe proposed definition ofemployer. One of the commenters stated that the proposed definition clarified therelationship between employees and employers. Also, this commenter noted "thatthe stated problems with 'moonlighting' and the adverse experiences that ithas generated overthe past yearsjustify the blanket elimination ofthe practice of moonlighting. 

### * * * .

ARSA noted that the proposed elimination ofthe moonlighting exception would cause great difficulty because, ifa non-certificated subcontractor did not want to have its
ownprogram, it would need to be covered by the programs ofall ofthe · contractors for whom it performed safety-sensitive work. ARSA believed that many ofthese companies would refuse to establish programs oftheir
own.

ARSA correctly understands that under the final rule certificated and non-certificated contractors performing safety-sensitive functions must either obtain their own drug and alcohol programs or obtain coverage under each company for whom they are performing safety-sensitive functions. This is a business choice that each entity must make. Since thebeginning ofthe drug and alcohol programs, companies have made these choices. Ifa certifi{;ated or non"certificated contractor has its own program, it does not need to be included inthe program of each company for whom it works.

InNotice 02-04, the last sentence of the definition of ''Employer" read as follows: "An employer may use a contract employee who is not included under that employer's FAA-mandated antidrug program to perform a safetysensitive function only ifthat contract employee is subject to therequirements ofthe contractor's FAA-mandated antidrug program and is performing work within the scope ofemployment

· with the contractor." RAA

recommended that the FAA delete the phrase "and is performing work within the scope ofemploymentwith the contractor." RAA.believed that the phrase places a burden on an employer to determine whether the work it requires ofthe contract employee is substantially similarto the work the employee performs for the contractor. RAA believed the language was an attemptto remedy a post-accident testing issue, and inthis light, RAA found the language "withinthe scope of employment" to be "vague, ambiguous, ,subjectto multiple interpretations and shouldbe deleted." Instead, RAA proposed that the language ofpostaccident testingbe amended to allow an

· employer to post-accidenttest a contract ·employee. ·

The examples provided inNotice 02- 04 mayhave confused some commenters. The language "inthe scope ofemployment" was not intended to be limited to post-accident testing. Upon further review ofthe proposal, we decided to include additional language to better explain that "withinthe scope ofemployment" means that it is part of the employee's job with the contractor to perform a safety-sensitive function for the employer. · .

In proposing to revise the definition of "Employer," the FAA intendedto
ensure that an individual performing a safety-sensitive function for an employer is covered by eitherthe employer's program or the program of the contractorwhen the individual is performing work for the employer within the scope ofhis or her

. employment with the contractor. The previous language allowed an employer to use an individual for any safetysensitive function, so long as the individual was covered by someone else's program. Underthis final rule, if.
an individual is "performing a safetysensitive function onbehalfofthat contractor 

### (i.e., within the scope of employment with the contractor)," then the contractor is fully knowledgeable of what workthe individual is doing, and the contractor can, therefore, remove from service any individual who tests positive while working for a client. This way, theregulation permits the employer to use an individual without directly covering him or her, but also

.ensures that the contractor willbe in a position to knowwho is working where,
so that safety and individual privacy are correctly balanced should a positive test result bereceived.

Two colhmenters had concerns.about ensuring that contractor employees are actually coveredbythe contractor's program. One commenter suggested that "language be added to the final rule to require documentation that a contract employee is enrolled inthe contractor's FAA mandated drug and alcohol testing program." The other commenter questioned whether or not it is an absolute requirement for FAA-approved repair stations to have actual copies of vendor plans onfile at their facilities or whether an electronic means such as an updated listing that the FAA could maintainwouldbe considered acceptable.

The FAA notes an employer must verify that the contract employee is subject to the contractor's FAAmandated testing program on an ongoing basis. While theregulation does notrequire specific documentationtobe kept onfile, the employer remains responsible for demonstratingthat ithas ensured that ithas onlyused a contract employee who is included under the contractor's testirig programs. Inthe past, the FAA's Drug Abatement Division maintained an Internet Web site with a list ofaviation companies that had approved drug and alcohol testing programs. The intent ofthis list
was to assist employers in identifying contractors that were operating drug and alcohol testing programs in compliance with 14 CFR part 121, appendices I and 

### J. However, the information onthis list
was current only atthe time the list was placed onthe Web site. For example, the list did not indicate whether the

### 1844 Federal Register/Val. 69, No. 7/Monday, January 12, 2004/Rules and Regulations

companyhad implemented or continued to implement its drug and alcohol testing programs. Therefore, the information could notbe used to determine compliance with the regulations, and the FAA removed the list from the Internet. The FAA has not imposed a specific documentation requirement for ensuring contractor coverage because we want to give employers the flexibility to meetthis .requirement on a· continuing basis in any manner that is practical and effective for eachparticularemJ>loyer.

Another commenterrequested that the FAA include within the rule text itself, the examples provided in the preambleto Notice 02-04. The FAA considered this proposal and decided that including examples inthe rule text for this definition is unnecessary since
we have cl8.rified this definition in the final rule.

The FAA notes that under this change to the regulation, an employer who currentlyhas a "moonlighting"· employee performing a safety-sensitive function is notrequired to conduct a pre-employmenttest on the employee. However, the employer must include the employee under its antidrug and alcohol misuse preventionprograms. With the effective date ofthis final rule, the "moonlighting" exception is elimhiated and the employer may not hire ortransfer any employee into a safety-sensitive function before the employer conducts a pre-employment test onthe employee and receives a negative drug testresult onthe employee. In addition, one ofthe commenters stated that as a consortium administering drug and alcohol services, he has noticed that§ 135.1(c) operators do notread and comply withpart 135. The commenterrecommended addressing this concernby adding the term "scenic aircraft operations;, inthe definition ofemployer when§ 135.1(c) is mentioned.

The FAA has determined that it is onlynecessary to reference§ 135.1(c) to describethese employers. Section 135.1(c) refers to "anyperson or entity conducting non-stop sightseeing flights for compensation orhire in an airplane
orrotorcraft thatbegin and end atthe
same airport and are conducted within
a 25 statute mile radius ofthat airport." "Scenic aircraft operations" does not accurately describe these employers. A
more elaborate descriptionwould not better notify these commercial operators oftheirregulatory dutyto comply with the drug and alcohol testing regulations. As commercial operators, they must read part 135. Section·135.1(c) explicitly directs these operators to §§ 135.249,

· 135.251, 135.253, 135.255, and 1'35.353, whichrequire these operators to conducttesting underpart 121, appendices I and

### J. We have concluded that the regulatory requirements are adequate as stated inthe existing regulations. Consequently, we are not adopting the commenter's suggestion on this issue

..

Therefore, the FAA is adopting the definition ofemployer as proposed, with minor editorial changes for clarity. OtherDefinitions

We received two comments that suggested we clarify the definition of "Safety-sensitive." One ofthe commenters also suggested that we add definitions for "Performing maintenance" and "Cease.to perform." The commenter stated, "To be able to interpret what is meant when safetysensitive is used thereader mustbe able to understand the phrase explicitly." The commenter also stated, "without a clear definition ofperforming maintenance, a clear understanding of safety sensitive can never be comprehended."

Tlie FAA has determined that these terms are already sufficiently defined. The definition of "Safety-sensitive function" cross-references the sections in appendices I and

### J, respectively, that describe which employees mustbe tested. Itis :not necessary to address specific examples ofthe tasks performed within safety-sensitive {unctions. Instead, therule identifies the duties that are subject to drug and alcohol testing because oftheir relationship to aviation safety.

Inrequesting a definition for "Performing maintenance" the commenter stated, "Many people can perform reguhir maintenance on an aircraft engine and its components. Normally, only one or two ofthese "individuals 'release-to-service' the aircraft engine and/or its components ·afterthis maintenance is performed." The commenter noted that "performing maintenance is a routine procedure on an aircraft engine," and asked whenthis becomes safety-sensitive. In addition, the commenter questioned when an employer should start drug and alcohol testing.

.

The commenter seems to be confusing performance ofmaintenance with releaseto service. In fact, release to service is only one aspect ofthe broader

. concepts ofmaintenance and preventive

maintenance, which are defined bythe FAA in 14 CFR § 1.1, and 14 CFR part 43. Maintenance and preventive maintenance are not defined differently for the purposes ofdrug and alcohol testing. Consequently, the FAA has determined that a definition for "Performing maintenance" is not necessary.

Inthe course ofdiscussing "Safetysensitive" and "Performing maintenance" the commenter noted that manufacturing duties are "just as safetysensitive, ifnot more so" than maintenance duties. The commenter questioned whythe FAA does not require drug testing for manufacturing duties. ·

· The purpose ofthis rulemaking was not to add or remove categories of safety-sensitive employees. Anychanges to the types ofsafety-sensitive employees who mustbe subjectto testing would need to be accomplished by notice and commentrulemaking procedures. The FAA did not propose any such changes; therefore, it would notbe appropriate to consider the commenter's issues in this·rulemaking. ·

Inrequesting that we define "Cease to perform," the commenter stated that: "In a commercial business some procedures are time critical. In a small business where there are no 'extra' people available to finish a time critical process, removing one person for a random drug test canhave significant financial consequences.".

Under the regulations, the employer is responsible for determining when to · notify its employees to immediately report for random testing. Therefore, a · small business can allow an employee to finish a "time critical process" before notifying the employee to report immediately for a random test. For further discussion ofrandom testing, see SectionV.B. Consequently, the FAA has determined that a definition for "Cease to perform" is not necessary. Hire

Another commenter suggested that we add a definition of "Hire" to clarify whenpre-employment testing needs to be done for a person who performs services as a volunteer, through barter,
or in some other manner that maynot
seem to include a clear "hiring event." This commenter also suggested that we "specificallyprohibit the performance ofsafety-sensitive duties by an applicant or as part ofthe application process."

TheFAA agrees with the commenter regarding the need for a definition of "Hire." Therefore, we have added a definition of "Hire" to Section Il

. Definitions. The addition ofthis definition is not a substantive change, rather it is a clarificationto ensure that the new pre-employmenttesting · requirement does not inadvertently eliminate anyone who was required to submitto pre-employmenttesting under the 1994 provision. The FAA has

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determined that the rule language and the new definition ofhirehave made it clear that an applicant is prohibited from performing safety-sensitive duties until a pre-employment test is given and
a negative result is received. 

### III.. Employees Who MustBe Tested

InNotice 02-04, the FAA proposed to make it clear that the employer's · decision to include an employee in its drug and alcohol testing program must be based onthe safety-sensitive duties that the individual performs rather than employment status (full time, parttime, temporary, orintermittent). The

. proposed language was not intended to change the currentrule's scope.

We received several comments regarding this clarification, including a

.comment from RAA. Some commeilters supported the clarification, while.others expressedconcerns.

RAA stated that the phrase "regardless ofthe degree of supervision" confuses thereader on exactly which individuals are required to be tested. RAA saw this language as broadening the scope ofcoverage beyond individuals who perform safetysensitive functions. As an example, RAA stated that many air carriers do not currently consider a mechanic's helper
as performing a safety-sensitive

.function, since anytask affecting the aircraft is reviewed and signed offby another individual licensedto perform
a safety-sensitive function. RAA felt that this change significantly broadened the scope oftesting for manyair carriers

· and would increase their expenses. One commenter stated that the change makes it clear thatthe determination of who needs tobe in a testing program is based onthe safety-sensitive duties the individual performs. The commenter noted, however, that "helpers" are not mentioned in the regulatorytext and that this omission could cause some confusion.

Another commenterbelieved thatthe rule change wouldrequire a mechanic's helper, who is supervisedby a maintenance technician, to be covered bythe drug and alcohol testing requirements. · .

The FAA's drug and alcohol testing regulations have always required testing ofany employee who performs a safetysensitive function regardless ofthe degree ofsupervision. Communications. with the aviation industry, as well as compliance inspections and investigations, showthat employers do not always understand which employees mustbe tested. Therefore, the FAA is specifying that the testing obligations applyto any individual who is full-time, part-time, temporary, intermittent, orin a training status,.if that individual is performing a safetysensitive function. The revision does not change the scope ofthe regulation, it merely clarifies that any employee performing a safety-sensitive function mustbe tested even ifthat employee is being supervised during the performance ofthe safety-sensitive .function. Section Til lists safety-sensitive functions and it does not listjob titles. The determination ofwho shouldbe tested is notbased onthe title ofthe position or the degree ofsupervision, butthe actual functions performed. For ·example, it is possible that a mechanic's helper in one company might not perform safety-sensitive functions and would not need to be tested, while a mechanic's helperin another company might perform safety-sensitive functions and, therefore, mustbe subject to testing. The revision does notbroaden the scope oftesting or the costs associated with testing, but it may help employers to better understand whether they are properly testing all employees who perform safety-sensitive functions.

The FAA agrees, however, that revising the regulatory text to include assistants and helpers would help avoid confusion and this change is made in the final rule.

A commenter onpre-employment testing stated that,."in small companies especially 

### * * * an individual could begin to perform safety-sensitive duties (withoutbeing formally transferred into
a safety-sensitive position). Possible examples include a parts warehouseman who performs maintenance on an asneededbasis or a reservations clerk who is trained to do weight and balance calculations."

TheFAA has considered the commenter's concerns. However, we ,have not adopted thelanguage proposed by the commenterbecause webelieve Section ITI. Employees Who Must Be Tested, clearly states thatthe employer must test an employeebefore allowing the employee to accomplish any safetysensitive task, evenifthe task only is accomplished on an as-needed basis. For example, a reservations clerk could be trained inthe s8fety-sensitive duties ofweight and balance calculations. However, the employee would only be tested ifthe employeridentifies this person as someone who couldbe called upon to perform safety-sensitive duties
on an as-neededbasis. On the other hand, ifthe employerhas not identified this person as someone who could be called upon to perform safety-sensitive duties and has not tested the employee, the employer may not use the person to perform.safety-sensitive duties. 

### V. Types of Drug TestingRequired A. Pre-Employment Testing

As discussed earlier, approximately 19,400 positive pre-employmenttests have been reported to the FAA inthe last decade, demonstrating that such tests are an effective detection tool. Preemploymenttesting is directly tied to ayiation safety, in that it is a gateway to safety-sensitive positions. Failure ofa pre-employment test is a direct barrier to an individual's entryinto safetysensitive work. Thus, it is vital that the language requiring pre-employment testing be as clear as possible in order to maximize the efficiency ofits use.

Originally, the antidrugregulation

. published in 1988 said, "No employer may hire any personto perform a function, listed in section

## m. ofthis appendix, unless the applicant passes a drug test for that employer." The regulation required pre-employment testingbefore an individual could be hired to perform a safety-sensitive function specified in the appendix.

In 1994, the FAA revised its antidrug rule to require pre-employmenttesting ofan individual prior to the first time the individual performed a safetysensitive function for an employer instead ofrequiring this testing "priorto hiring." Under the 1994 revisions, an individual was required to have a

. verified negative drug testresult on a pre-employment test priorto performing
a safety-sensitive function, and the employer could not allow the**indi~idual** to perform such a function until the employerreceived the verified negative pre-employment testresult.

Communications with the aviation industry and enforcement cases have shown that, in the absence ofthe very clear "hiring" event, some employers have misunderstood the preemploymenttesting requirement. They neglected to conduct a pre-employment test and receive a negative testresult .before allowing employees to perform

. safety-sensitive functions. In the worst cases, this resulted inthe performance ofsafety-sensitive functions by employees who subsequentlytested. positive for illegal drug use. Before the

. 1994 change, misunderstandings were

. notprevalent. The original language was

. a clearer standard for employers to follow. Therefore, the FAA proposed to change the language in paragraph V.A.1. back to requiring testing and receipt of
a negative drug test result priorto hiring
an individual for a safety-sensitive function.

Inparagraph V.A.2., the FAA proposed to require that employers drug test employees prior to transferring them into safety-sensitive functions. I'

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This paragraph proposed to clarify to the employer that testing is required and
a negative test resultmustbe received before an employee is "hired" for a safety-sensitive function, even ifthat "hiring" is simply an internal transfer from a nonsafety-sensitive function to a safety-sensitive function.

InparagraphV.A.3., the FAA ·proposedto.address circumstances where iridividua:ls are givenpreemployment drug tests (and receive negative test results) but a significant period oftime passes between the date ofthe test and the date ofhire or transfer into a safety-sensitive function and thus into the employer's FAA-mandated drug testing program. TheFAA proposed 60 days as an acceptable time between beinggiven a pre-employmenttest and beingbrought into a drugtesting · program.

The FAA received comments on each ofthe subparagraphs ofV.A. Several commenters, includingthe Drug & Alcohol Testing Industry Association (DATIA) supported the clarification in paragraph V.A.l. that a negative test result mustbe received priorto hiring
an employee for a safety-sensitive function, especially in light ofthe number ofpositive pre-employment test results.

Several commenters, includingATA and RAA opposed the requirement in paragraph V.A.1. to conductpreemployment testing with a.negative test result received priorto hiring an individual. These commenters preferred the 1994 version ofthe regulation, which only requiredreceiving the negative test result on

### a pre-

. employmenttest priorto performance.

RAA statedthat the FAA's proposal to have a negative drug test result received prior to hire rather thanpriorto the first performance ofa safety-sensitive function would severely affect the ability ofits members to hire in an. efficient manner. In addition they stated thatthis proposal would unnecessarily increase costs to air carriers, without enhancing safety. RAA noted that, generally, newly-hired pilots receive administrative burdens because they must conduct a pre-employment test and receive a negative test resultprior to beginning training ofeach individual. RAA noted that air carriers would have to conduct increased numbers oftests. RAA stated that air carriers would potentiallybe testing individuals who will never perform safety-sensitive functions, resulting in unnecessary costs to air carriers and infringement on the individual's rights.

ATA commented that FAA should not revertto the "priorto hire".preemployment testing language. ATA stated "that failures to perform preemployment testing have notbeen the result ofconfusion about when these tests mustbe performed, but instead because ofa variety ofotherreasons: simple human error/forgetfulness, inadequate administrative systems, or occasionally the needto get someone in place in a position." They believed that "the change proposedby FAA will not prevent these kinds oferrors from occurring inthe future." ATA asserted, "thebasic reason for the 1994 language-flexibilitythatrealistically reflects the overall hiring process-has not changed and is as valid today as it
was in 1994." Although ATA noted that FAA has a laudable goal intrying to reduce employer's errors inconducting pre-employment testing, they stated this goal "does not outweigh the need for ·flexibility to conductpre-employment testing in a way that is operationally efficient and cost-effective." ATA stated that the flexibility the 1994language afforded its members was critical · "because the hiring and training process for safety-sensitive employees canbe complex and take a long time." ATA felt that its "members need the flexibility to conductthe pre-employment test at a time that makes sense inthe course of -the overall hiring process. For example, the pilot hiring/training process can

.take anywhere from four to six months, and even longer on occasion." ATA noted thatgiven both the length ofthe process and that some individuals ultimately will not make itthrough the process, these individuals should notbe pre-employmenttested before being hired. ATA also stated that the same two to four weeks ofclassroom training before they perform any activity that couldbe considered a safety-sensitive

. function. RAA statedthat classroom training generally occurs at the corporation's headquarters, and, since. most ofthe hires do not live there, air carriers conduct pre-employmenttesting
on a new hire's first day ofclass. They noted that this gives the air carrier . issues and concerns apply to flight attendant and mechanic hiring, although the hiring/training process maybe shorter. For these reasons, ATA requested that FAA retain the current text ofsection V.A.l. ample time to receive and document an individual's results before any safetysensitive work is performed. RAA stated that th.e proposedrule would cause air carriers additional costs and FAA enforcement experience shows

. that pre-employment testing is more ·effectively implemented when there is a clear event triggering the test, such as "hiring" an employee. Although some commenters preferred the 1994 version, the FAA found that the "prior to performance" language caused employers much confusion and made pre-employment testing violations the most frequently occurring enforcement
cases.

Pre-employment violations are extremely serious because they indicate that an employee was placed into a safety-sensitive function without the propertesting. Statistics showthat preemployment testing yields the largest number and percentage ofpositive test -results, a larger number and percentage than.all other FAA-required drug testing combined. Pre-employment testing functions as the gatekeeper inthe FAArequired drug testing program because it prevents the entry into safety-sensitive work ofindividuals who use illegal drugs. Therefore, any pre-employment violation poses therisk ofpermittingthe · entry ofan illegal drug user into the aviation industry. For these reasons, it is imperative that we provide employers with a clear and unambiguous standard for the timing in which to conduct preemploymenttesting. We have determined that the event ofhiring an employee provides an unambiguous standard for the timing ofpre-

. employmenttesting. Although the. "prjorto hire" language may mean that
some employers may conduct testing of individuals who do not complete the employer's training program, this may ultimately save employers moneyby eliminating illegal drug users before employers expendtime, effort, and funds to train those individuals. Consequently, because ofthe safety implications ofallowing undetected drug users to enter into safety-sensitive' functions, the FAA is using the more clear and direct "priorto hire" language.

Furthermore, pre-employment drug testing is a less expensive and more common prerequisite for employment in the United States todaythan it was in 1994. Employers across·the United States are finding that pre-employment, random, and other forms oftesting make economic sense. According to a Substance Abuse·and Mental Health Services Administration (SAMHSA) study, illegal drug use and alcohol misuse cost United States' private employers billions ofdollars each year in costs associated with absenteeism, on-the-job errors, injuries to employees, increased insurance costs and workers compensation payments, etc. Requiring pre-employmenttesting prior to hiring
an individual should actually save employers from expending salary, benefits, and workers compensation on active illegal drug users.

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Therefore, the FAA is adopting paragraphV.A.l. as proposed, with minor editorial changes

..Also, we added the words "conducts a pre-employment test and" to make it clearthat the test for which the employer is receiving a verified negative drug testresult is a pre-employment test. ·

The FAA is adopting paragraph V.A.2.
as proposed, with minor editorial changes. Specifically, we added the words "conducts a pre-employmenttest and" to clarify that the test for which the employeris receiving a verified negative drugtest result is a preemployment test.

Some commenters, including NATA, supported the 60-day provision in paragraph V.A.3. However, several commenters, includingAT A and RAA, opposed theproposed 60-day provision. ATA stated that the 60-day period would nothave any public safety benefit and would have additional cost. They recommended that the 60-day period be deleted. Alternatively, they suggested that the 60-day time period be changed to 180 days because the hiring and training process for pilots and flight attendants can take up to 6 months.

Another commenter opposed the 60- day provision in V.A.3. because he believes "it is not unusual for Bo days to elapse betweenthe time a pilot or dispatcher candidate walks through the front door, until he/she is completely checked out in his/her safety-sensitive functions. To give the newly checkedout employee yet another preemployment drug test makes no sense at all."

RAA opposed the proposed 60-day time frame because this provision would cause many ofits members to conduct more than one pre-employment test and would require its members to
more closely track the time betweenpreemploymenttesting and putting an employee into the testing program. RAA explained that under Postal regulations its members' newhires mustbe preemploymenttested within 90 days. Thus the proposed 60-day window for pre-employment testing newhires is too
narrow for RAA members.

After reviewing the comments, we have determined that 180 days, as suggested byATA, is an acceptable time between conducting a pre-employment test and repeating the test before

. bringing an individual into an FAAmandated drug testing program. While
we wantto ensure that there is not a significant delay between the preemployment test and the individual being subject to a drug testing program, we wantto give the employer some flexibility. However, the longer the delay betweenthe pre-employmenttest and the individual assuming a safetysensitive function, the less the deterrence factor because the individual is not in an on-going testing program. TheFAA has determined that increasing the time period from 60 days to 180 days still provides an acceptable deterrence factor, while giving the employer more flexibility.

In looking at the proposed preemployment testing rule text and accompanying preamble, the FAA has recognized that sonie ofthe discussion about the proposed changes to preemploymenttesting mayhave caused misunderstandings about preemployment testing and performance of
a safety-sensitive function. The FAA believes that some commentei:s may have misunderstood the proposed 60- day provision as requiring that an · employee mustbe tested again ifthe employee does notbegin performing safety"sensitive functions within the 60 days. The final rule requires a second pre-employment test only when the person was not actually hired or transferred within the spedfied period that is now 180 days. Because ofthe apparent confusion about the use ofthe word "perform" inthe pre-employment testing context, the FAA has revised the rule language in paragraph V.A.l. from "hire any individual to perform a function listed * * *"to "hire any individual for a safety-sensitive function listed* * *"We did this to remove the word "perform" from paragraph V.A.1. because it appeared to cause confusion inparagraph V.A.3. In addition, this· change to paragraph V.A.1. more directly mirrors the proposed language inV.A.2., which appears to have been clearer.

Therefore, we are adopting the proposed language inparagraph V.A.3. with the change described above to -increase the 60-dayperiod to 180 days. One commenter correctly recognized thatNotice 02-04 proposedrequiring pre-employment testing ofany · individual hired ortransferred into a safety-sensitive position, evenifthat individual were rehired by a former employer. However, when wereviewed the language inparagraph V.A. we realized that there was a conflict betweenparagraphs V.A.1., V.A.2. and V.A.4. The FAA proposed keeping paragraph V.A.2. with no changes, but redesignating it as V.A.4. Proposed paragraphs V.A.1. and V.A.2. clearly stated that any individual who is hired
ortransferred mustbe subject to preemploymenttesting. Historically, paragraph V.A.2. (redesignated as V.A.4.) allowed but did notrequire an employerto pre-employment test an individual who previously performed a covered function for the employer and
was removed from the random pool for other than a verified positive test result
or a refusal to submitto testing, such as assignment to a nonsafety-sensitive function. This allowed an employerto return an individual to a safety-sensitive .function without subjecting that individual to anotherpre-employment test.

Inthis final rule we have revised the language ofparagraphV.A.4. to be consistent with paragraphs V.A.l. and V.A.2. so that an employer cannotrehire
a former employee without a**pre~** employmenttest andreceipt ofa negative drug testresult. The final rule continues to allow employers to restore
a current employee to a safety-sensitive function without pre-employment testing in limited circumstances. Specifically, ifthe employee is removed from the random testing pool for reasons unrelated to a positive test result or a refusal to test, and the employee is not

· a hire or transfer, the employer may put the employee back intherandom testing pool witb.out a pre-employmenttest. For example, ifan employee is removed from the random pool because ofa ·work-relatedinjury or family medical leave, the employer may place that employee back into the random testing pool after the absence, so long as the employer is not "hiring" or "transferring" the employee into a safety-sensitive position.

In addition, in the introductory text to ·redesignatedparagraph V.A.4., we restored the concept that an employer mustreceive a negative test result on a pre-employment test. Historically, the requirement for the receipt ofa negative test resultwas included in paragraph V.A.3., butitwas inadvertently omitted inthe proposal. ·

Another commenterbelieved that

·requiring rehired employees to be preemploymenttested wouldbe "cost prohibitive" and a large number of employers would need to be educated
onthis change. Therefore, this commenterrequested a long grace periodto allow companies to become · familiar with this change.

The FAA has determined that postponing the effective date ofthis provision is not necessary. While all employers governed bythe drug and alcohol testing regulations mustbecome familiar with all the changes inthis final rule, wehave no data to suggest that a large number ofpre-employment tests will be triggered by this new provision. Furthermore,whilethe commenter notes that shebelieves the change is "costprohibitive", she does not oppose the change or offer data to supportthat a large number of

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employers would need to conduct significantly more pre-employmenttests ·as a result ofthis change. · One commenter suggested that we add a definition of"Hire" to clarify who mustbe pre-employment tested. The FAA agrees with this commenter. For a discussion ofthis issue see Section IT. Definitions.

There were no changes to paragraphs V.A.4.(b) and (c). They are adopted as proposed. · .

Inreviewing the draft final rule text,
we realized that the language in paragraph V.A.5., whichhas been inthe regulation for many years, couldhave caused some confusion. Specifically, proposedparagraph V.A.5. required an employer to notify "each individual applyingto perform a safety-sensitive function at the time ofapplicationthat the individual will be**requ~red** to · undergo pre-employment testing." This language was notintended to require employers who receive hundreds of unsolidted applications everyyear to notify each ofthese individuals ofthe requiremenfto test. Instead, the intent is to ensure that prior to pre-employment

·testing, eachindividual has been notified ofthe requirement to take that test and werevised therule accordingly. Also, we updated the reference in the last sentence ofthe proposed paragraph · because weredesignated paragraph V.A.2. a:s V.A.4. in Notice 02-04. Further we eliminated the reference to sectionv:A.l. inthe proposalbecause it
was redundant.

Inthe final rule, we have made minor

· editorial changes to sectionV.A.,

including substituting the word "individual"for the words**"applicant.~'** · "person," and "employee," as appropriate for clarity.

The FAA has adopted the provisions proposed inparagraph V.A., Pre-

. Employment Testing, with the changes described above and minor editorial changes. testing, the FAA has determined that the elimination ofperiodic drug testing at this time will not compromise safety and will be a cost benefit to those aviation industry employers implementing drug programs. Also, there has never been a periodic testing requirement in appendix

### J. Because of the elimination ofperiodic testing, the remaining paragraphs inthis section are beingrelettered accordingly.

.

Tlie FAA received several comments, including one from ATA, supporting the proposed elimination ofperiodic testing. We agreed with the commenters and are adopting the changes as proposed. C. Random Testing

InNotice 02-04, the FAA proposed adding a paragraph to the random testing section for consistency with appendix

### J. Under the proposed provision, each employermust ensure that each safety-sensitive employee who isnotified ofselection for random drug testing proceeds to the collection site immediately. Under the proposal, even ifthe employee is performing a safetysensitive function at the time ofthe notification, the employer must ensure that the employee ceases to perform the safety-sensitive function and proceeds to the collection site as soon as possible. A similar·requirementhas been included in appendix

### Jsince its issuance in 1994 and has worked well. Two commenters supported the proposed change to the random drug testing section. One commenter stated thatthe proposed change would clear up the misunderstanding ofthe regulation that some companies have had. continued use ofthis means of notification, as it wouldrequire the pilots to cease operating fue aircraft after notification oftesting." Finally, ALPA concluded "there is no reason to preclude a pilot from completing an assigned flight segment and then reporting for the test as soon as practicable." ·

Another commenter noted that "some level ofmanagement oversight and · control as to the timefra:me allowed after
a random drug test notification" is needed in the random testing section.

The FAA has determined that the proposedrule language continues to provide the employer a reasonable degree ofcontrol over when to notify an

· employee ofthe need to take a random

drug test. The proposedrule language does notpreclude pilots from completing a flight segment inprogress in order to submitto random testing. Employers have always had the option ofnotifying employees ofrandom testing after completion oftheir safetysensitive.duties. In addition, the proposedrule language does not permit advance notification ofrandom testing

.ofpilots and flight attendants. Such advance notification is inherentlyunfair because pilots and flight attendants are onlytwo ofthe eight categories of safety-sensitive employees. In other words, six categories ofemployees are not accessiblebyAGARS advance notification. In·additionto fue unfairness issue, AGARS advance notificationhas been linked, through enforcement cases, to dilutions,

.substitutions, and adulterations. AGARS notification could provide the employee with an opportunityto consume large

. quantities offluid immediatelybefore • the test; which may dilute the specimen. Also, AGARS notification could provide the employee wifu an opportunity to substitute a specimen or to obtain access to adulterants to subvert the testing process. · ·

Another commenterquestioned B. Periodic Testing

InNotice 02-04, the FAAproposed to eliminate paragraph V.B, Periodic Testing. Periodic testing was important at the beginning ofthe program when manypeople were grandfathered into· newly approved antidrug programs withoutpre-employment testing. ALPA submitted a commentgenerally opposingrandom testing and specifically stated: "We suggest deleting this newproposed language, and replacing itwith the requirement fuat the employee report for the drug or alcohol test as soon as is practicable after notification offue test." ALPA supported the use ofthe Aircraft ·Communications Addressing and Reporting System (AGARS) "to notify pilots flying an aircraft oftheir obligation to report for a random drug and/or alcohol test upon landing. 

### * * * By using on-board notificationto crewmembers oftheir obligation to submitto urine testing upon landing, the crewmembers are able to defer emptying their bladders and avoid subsequentproblems· wifu producing therequisite urine specimen. Such notification and testing has been working well foremployees and air carriers." ALPA noted that "the new proposed language would prevent the · whefuer "all personnel performing a safety-sensitive function for a repair

Initially, there was also a phase-in period for implementingrandom testing. Employers were notrequired to meet the annualrandom testingrate until the last collection at the end ofthe first year oftesting. Thus, itwas likely that a pilot would notbe tested inthe first year oftesting. Because all flight ctewmembers are subject to preemploymenttesting and annual random . station holding an FAA-approved program mustbe tested equally and throughout the year, regardless ofthe volume ofwork performed by contract to an air carrier, andregardless of whefuer a person actually performs a safety-sensitive function directly on an air carrier's aircraft."

TheFAA notes that ifan employer, who conducts testing in accordance with FAA requirements, decides that an employee will be performing safetysensitive functions at any time, the employer must ensure that the employee is subject to random testing throughout the year. The continuity of

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the testing does not depend on the volume ofwork, but does depend on whether the employee has been designated bythe employerto accomplish safety-sensitive functions. Thus, once an employer de.cides that an employee is subject to the employer's FAA-required testing program, the employee must remain subject to all forms ofFAA-required testing, includingrandom testing, as long as the employee maybe called upon to perform safety-sensitive functions. The FAA has made it clear in Section ill. Employees Who Must Be Tested, that employees who are designated as available to performsafety-sensitive functions even part-time or intermittently mustbe tested. The FAA has determined that the proposed random testing language does not need to be.revised in response to this comment. Therefore, we are adopting therandom testing provision as proposed.
E. Testing Based onReasonable Cause

In Notice 02-04, the FAA proposed to change the reasonable cause language. Specifically, we proposed to allow, but notrequire, an employerto make a reasonable cause determination regarding a contractor's employee. The employer wouldbe allowed'to refer a contract employee for testing under the contractor's drug and alcohol programs without waiting for a supervisor employed by the contractor to confirm the employer's determination.

The FAA received comments from several submitters, includingATA, RAA, NATA, and DATIA, onthe proposed change to reasonable cause testing. Four ofthe commenters, including NATA and DATIA, supported the concept ofallowing an employer to have its supervisors make reasonable
cause determinations regarding contract employees and refer them for testing under the contractor's drug and alcohol programs.

Two ofthe commenters, however, suggested that the FAA did notgo far enough because the proposed reasonable cause testing ofcontractors provisionwas permissive, not

· mandatory. One commenter

recommended thatthe employer should berequired to make a reasonable cause determination regarding anycontract employee who performs a safetysensitive function onthe employer's premises and under the employer's supervision. Also, the commenter recommended that the employer be required to refer the contract employee for a reasonable cause test under the contractor's program. Another commenter similarlybelieved thatthe provision should be mandatory and noted that the proposed rule language did not "indicate what steps the employer can or must take after the contractor employee has been identified
as a possible drug or alcohol user." The commenter listed specific steps for · testing the contract employee and for providing the testresults to the relevant employers.

ATA and RAA opposed the proposed change to reasonable cause testing. ATA and RAA both had concerns over the legal implications ofthe proposed permissive language. In addition, ATA

.stated that it "opposes this proposal bec.ause it would place ourmembers in the middle of a sensitive employeremployee situation withregard to
someone else's employee. This provision, ifadopted, would create administrative burdens and legal risks that are m:iacceptable 

### * * .* Moreover,
even ifan airline-employer makes a proper and timelyreferral there is no guarantee thatthe contractor will conductthe testing in a timely manner."

Afterreviewing the comments received, the FAA agrees with commenters that the permissive nature ofthis provision is not advisable because there are too many contingencies inthe proposal. For example, as ATA pointed out, even ifan employer makes a reasonable cause determination on a contract employee,

.there is no guarantee that the contractor willconductthe testing in a timely
manner. Therefore, the FAA has not adopted the proposed reasonable cause testing ofcontract employees provision.

Itis important to note thatthe FAA proposed the change because there was confusion as to who was responsible for making the determination and conducting reasonable cause testing of contract employees on an employer's premises. The FAA remains concerned that some contract employees are not beingtested for reasonable cause because their actual employers are not on-site. The FAA mayrevisitthis issue in future rulemaking. In the meantime, the FAA encourages employers to continue to make reasonable cause determinations regarding their own employees and continue to contact their ·contractors regarding any reasonable
cause concerns that may arise regarding contract employees.

In addition, in Notice 02-04, we proposed to delete the following two sentences from paragraph V.D.1.: "Each employer shall test an employee's specimen for the presence ofmarijuana, cocaine, opiates, phencyclidine (PCP), and amphetamines, or a.metabolite of those drugs. An employer may test an employee's specimen for the presence of other prohibited drugs or drug

. . metabolites onlyin accordance with this appendix and the DOT Procedures for TransportationWorkplace Drug Testing Programs' (49 CFR part 40)." The first sentence is redundant ofthe requirements in49 CFR part 40. The second sentence is no longer appropriate.

.
· The FAA did notreceive any comments onthe proposed paragraph V.D.1. Therefore, the FAA has adopted this change to paragraph V.D.l. as proposed, nowredesignated as paragraph V.D. 

### IX. Implementing an AntidrugProgram

In Notice 02-04, theFAA proposed eliminating the requirement that each employer submit an antidrug program plan to the FAA for approval. Noncertificated employers or contractors conductingtesting will be required to register with the FAA. Certificate holders must obtain anAntidrug and Alcohol Misuse Prevention Program Operations Specification (OpSpec). This provides the FAA with the information it needs for surveillance ofthese programs. In addition, we proposed changing the title ofthis section so it
more accuratelyreflects the section's content. Replacement ofPlan Approvals With OpSpecs and Registrations

We proposed eliminating the requirement for each employer to submit an antidrug program to the FAA for approval. Part 121 and part 135 certificate holders, and part 145 certificate holders who decide to have their own FAA testingprogram, will be· tracked in the FAA's Operations SpecifiCations Sub-System (OPSS). By using OPSS, certificate holders will not need to go to two separate FAA offices, the Flight Standards Service and the Office ofAerospace Medicine, every time they make a change to data regarding their company.

New and existing part 121 andpart 135 certificate holders must obtain an Antidrug and Alcohol Misuse Prevention Program OpSpec. The air · carrier's FAA Principal Operations Inspector issues the OpSpec. New and existing part 145 certificate holders who choose to have their ownFAA testing program must obtain an Antidrug and Alcohol Misuse Prevention Program OpSpec from their FAA Principal. Maintenance Inspector. Once the Antidrug and Alcohol Misuse Prevention Program OpSpechas been issued, the certificate holder must contact its FAA Principal Operations Inspector or Principal Maintenance Inspector, as applicable, to make any

### 1850 

### Federal Register/Val. 69, No. 7/Monday, January 12, 2004/Rules and Regulations

future changes to.the OpSpec. Under the final rule, an entity will only be required to file one OpSpec that covers boththe drug and the alcohol programs. To clarify the certificate holder's responsibility to update its Antidrug and Alcohol Misuse PreventionProgram OpSpec, we added section IX.D.4. to the final rule. This clarification incorporated language from the sample Antidrug and Alcohol Misuse Prevention Program OpSpec, included inNotice 02-04, regarding the certificate holder's responsibility to update its OpSpec whenever changes to the data occur.

The FAA also proposed changing the antidrug program plan and alcohol misuse preventionprogram certification statementrequirements for new and existing: (1) Air traffic control facilities not operated bythe FAA or by or under contract to the U.S. military; (2) sightseeing operators as defined by § 135

.. 1(c); and (3) non-certificated contractors that elect to have an antidrug and alcohol misuse prevention program. Under the final rule, the first time an entityregisters it will only be required to file one registrationthat
covers both the drug and the alcohol programs. However, a company must amend its registration information whenever changes to the data inthe registration occur.

Generally, the registrationrequires less informationthan the antidrug plan required. The only new item (for the antidrug program) is a statement signed by a companyrepresentative that the companywill comply withpart 121, appendices I and

### J, and 49 CFR part40. Companies willbe able to meettheir registration requirements for boththe antidrug program.and the alcohol misuse prevention programby signing
one statement.

Every employer must eitherregister with the FAA or obtain an Antidrug and Alcohol Misuse PreventionProgram OpSpec, as appropriate. Part 145 repair stations and non-certificated contractor · companies that are covered under an employer's antidrug and alcohol misuse preventionprogram may continue to be coveredunder the employer's program. As long as they continue to be covered under an employer's program and do not have their owli programs, they need notregister with the FAA or obtain an Antidrug and Alcohol Misuse PreventionProgram OpSpec. A part 145 certificate holder or a non-certificated contractor that performs safety-sensitive functions for an employermay choose to have its owntesting programs instead ofbeing covered by an employer's program. In that case, the part 145 certificate holder wouldbe required to obtain an Antidrug and Alcohol Misuse Prevention Program OpSpec and the non-certificated contractor would register with the FAA as outlined inthe rule.

The FAA received several comments
on Section IX. DATIA supported the proposal to eliminate antidrug plan approvals. Another commenter supported the elimination ofantidrug plan approvals and noted that the

. proposed changes standardized the process for employers and the FAA.

The FAA received several comments concerning OpSpecs. RAA viewed the OpSpecrequirementasan administrative procedure that could be handled in a variety ofother more effective methods instead ofbeing codified. RAA noted that airline individualswho specialize in aircraft navigational and air traffic procedures
are typicallyresponsible for maintaining the OpSpecs. RAA also noted that administering the antidrug and alcohol misuse preventionprograms is typically accomplished by an individual in humanresources. RAA stated that, while such individuals can coordinate their duties withinthe company, it sees no reason why an administrative task has to be regulated. Therefore, RAA requested that references to the OpSpec be deleted from the adopted rule.

In the past, the FAA has required that certificate holders and other entities receive FAA-approval oftheir antidrug and alcohol misuse**pr~vention** programs. Althoughthe FAA has

. eliminated the regulatory requirement for a company to obtain FAA approval ofthese programs, the FAA needs to continue to track companies with programs. The mechanisms inthis rule for the FAA to trackcompanies with programs are OpSpecs for certificate holders or registration for other entities. This results in a more streamlined process thanthe oldplan approval process while still providing the FAA with the.necessary information. The information received continues to be importantto the FAA, and we do not considerthis newprocess merely an administrative taskthat canbe accomplished withoutregulation. In response to RAA's concern regarding personnelresponsibilities, the FAA has determined that while the employer may have to adjust responsibilities within its organization, this initial burden is significantly offset bythe reduction inthe overall paperwork burden. Therefore, the FAA .is adopting the requirement for anAntidrug and Alcohol Misuse Prevention Program OpSpec or registration to replace FAA approval. ATA supported the proposal to track pertinent information throughthe OPSS and to eliminate the requirement for companies to have FAA-approved plans. However, ATA was concerned that this administrative change will create confusion as to who will enforce this requirement within the FAA. ATA recommended that FAA clearly state in the final rule that FAA Principa.l Operations Inspectors are not

. authorized to require different or

additional information and that the Drug Abatement Division has exclusive authority over air carrier OpSpecs submitted in compliance with this appendix.

Another cornmenter did not agree with addingthe new OpSpec because the commenterbelieved that the new OpSpec intermingledthe responsibilities ofthe Drug Abatement Division and FAA Principal Maintenance Inspectors.

Inresponse to these commenters, the FAA notes that under the miw OpSpec process, the role ofthe local Flight Standards District Office is limited to creating and updating the actual Antidrug and Alcohol Misuse Prevention Program OpSpec. TheFAA Principal Operations Inspector and the FAA PrincipalMaintenance Inspector have no responsibilities for oversight of
a**company~s** drug and alcohol testing programs. All oversight responsibility remains with the Drug Abatement Division. We do not see an intermingling ofresponsibilities, rather the new OpSpec process offers separate but complimentary interaction between the Drug Abatement Division and the Flight Standards Service. Therefore, it i-s not necessary to addrule language that clarifies internal FAA responsibilitif:!s for the OpSpec.

NATA agreed with the FAA that there willbe a reduction inthe paperwork burden for certificate holders if programs no·longer require FAA approval and issuance ofplan numbers. However, NATA objected to the FAA placing onthe certificate holders the burden ofobtaining the new OpSpec. NATA noted that since this is a change mandatedbythe FAA, FAA inspectors should initiate contactwith certificate holders undertheir supervision as they routinely do when new or changed OpSpecs are issued. NATA requested thatthe proposed language indicating that certificate holdersbear the responsibility for obtaining the OpSpec be revised to clarify that existing operators willbe issued the OpSpec by theirprimaryinspector.

Althoughthe FAA's Principal Operations Inspectors or Principal Maintenance Inspectors will continue to

### Federal Register/Val. 69, No. 7/Monday, January 12, 2004/Rules arid Regulations 

### 1851

conducttheirroutine interaction with certificate holders, the information needed to prepare the OpSpec must
come from the certificate holder. While this might be an inconvenience, as the commenter noted, there will be a reduction inthe certificate holder's overall paperworkburdenby eliminatingthe plan approval process. The ultimate beneficiary ofthe new OpSpec process will be the certificated entity, which will onlybe required to update its data in oneFAA tracking system, and will no longerbe required to provide infonhation for a separate Drug AbatementDivision tracking system. ·

Several commenters, including ATA and NATA, asked procedural questions about implementing the new OpSpec andregistration processes. ATA -recommended that FAA identify a person withinthe Drug Abatement Division for air carriers to contact inthe event ofa problemregarding its OpSpec under this appendix. ATA statedthat, to avoid confusion, the FAA should specify the documentation that contractors mustprovide to employers to prove that theyhave compliant antidrug and alcohol misuse prevention programs in place. NATA commented that additional information, such as a model certification.statement, wouldbe particularlyhelpful to small operators, including§ 135.1(c) operators.

The changes·requested by the commenters canbe accomplished without modifying the regulatory text. Once the rule becomes effective, the public can obtain information about process and implementationby contacting the Drug Abatement Division

·at the address in Section IX or by referencing the Drug Abatement Division's Web site: 

### http://www.faa.gov/ avrlaam/adap. ·

Another commenter recommended the OpSpec identify the certified · laboratory and medical review officer (MRO) that the company is using, and suggested that the FAA Principal Operations Inspector provide a written confirmation ofapproval/acceptance of the OpSpec. One commenter recommended thatthe FAA allow a transition period, for companies that will be required to have an Antidrug and Alcohol Misuse Prevention Program OpSpec, while another commenter noted that companies were already obtaining this OpSpec.

Inresponse to the recommendation that the. OpSpec containmore detailed information and written confirmation of approval/acceptance, the FAA has determined thatproviding detailed information, including the current laboratory and MRO, could defeat the simplicity ofthe OpSpec and registration requirement under the new rule. Under the antidrug plan approval process, this level ofdetail was required. This led to each company filing numerous amendments because such detailed information changed frequently. Also, waiting for the FAA to approve the contents ofthe antidrug plan added delay. ·

In deciding to move to the OpSpec andregistration requirement, the FAA carefully considered whether it should be evaluating/approving the written information submitted atthe beginning ofthe testing program. The FAA decided that the best evaluation ofhow
a company is testing is done on-site at the company during FAA inspections. Successful implementation ofa: testing program is the employer's responsibility; and is not shown merely
on a paper submission at the beginning ofa testing program. Therefore, the FAA decided to collect only enough information inthe registration statements and OpSpecs to provide a starting pointfor ourinspections.

. The FAA notes that many companies have already obtained the Antidrug and Alcohol Misuse Prevention Program OpSpec. In addition, because the requirementwill notbecome effective until30 days after this final rule is published, there is a built-in transitional period to obtain an OpSpec for any company thathas not already obtained
an Antidrug and Alcohol Misuse PreventionProgram OpSpec.

One commenter was concerned that the plan approval process took a long time and mayhave caused the industry to lose revenue because operations could not begin until the FAA approved the antidrug plans. This commenter expressed hope that the OpSpecs and registration processes would streamline and expedite the beginning of operations, thereby minimizing any time delays.

TheFAA is going forward with the OpSpec and registration processes as proposed, with minor clarifying changes, because we have determined that these, infact, will streamline the gathering ofbasic information that the FAA needs for monitoring the compliance ofcompanies conducting FAA-required drug and alcohol testing. Atthe same time they will lessen the burden onthe operator. As suggested by
one ofthe commenters, we expect that the OpSpecand registratiqn processes will expedite the beginning of operations for employers. Elimination of60-Day Grace Period for Contractors

The FAA also proposed eliminating the 60 days allowed for new employers to ensure that their contractors are subjectto an antidrug program. This provision provi.ded a grace period that
was important a:t the inception ofthe antidrug regulations in 1988 because drug testing was a newregulatory requirement for employers and their contractors. However, since contractor programs mustbe implementedbythe time the contractor performs safetysensitive functions for an employer, this grace period is no longer necessary or appropriate.

The FAA received a supporting commentfrom DATIA onthe proposed elimination ofthe 60-day grace period for contractors ofnew employers to implement an antidrug program. The FAA proposed this change in Section IX for employers to ensure that their contractors are coveredby an FAAmandated antidrug program. We are adopting it as proposed. Adoption ofthe PlainLanguage Format for Section IX

The FAA proposed two formats for the rule language in this section. While bothproposals had the same requirements, they differed greatly in format. The first option was presented intable format as much as possible. The second option followed the format of the current rule. ·

'Fhe FAA received a comment objecting to inclusion ofthe words "a non-certificated repair station, 

### * * * or any other individual or company that provides safety-sensitive service." Thiscommenterbelieved that this language,
as posed in option 1, added a new

·requirementto the regulations. As stated above, the options offered different formats buthad the same requirements. Since the beginning ofthe program, certificated and noncertificated contractors havebeen allowed, butnotrequired, to submit and implement antidrug programs under 14 CFR part 121, Appendix I, Sections IX.A.3-4

.. Therefore, this is not a new requirement.

.

In the final rule we made a clarifying change to section IX.A. to remind·· existing companies that they must continueto follow the regulatory provisions in appendix I. In Notice 02- 04, we articulated this requirement in option 2, but we did not explicitly address it in option 1. Therefore, we have added it to section IX.A. inthe final rule and changed sections IX.C.2.a.iii. and b.iii. for consistency.

The FAA received comments from several submitters, including NATA and

### 1852 Federal Register/Vol. 69, No. 7/Monday, January 12, 2004/Rules and Regulations

DATIA, supportingthe table format. reasonable suspicion determinations Therefore, the FAAjs adopting the table andrefer a contract employee for testing format as proposed withminor editorial under the contractor's alcohol misuse changes. · prevention program. This change was

The FAA also received a comment proposed becausetherehasbeen · from RAA requesting that we give confusion about the reasonable operators the option ofsubmitting suspicion testing ofcontract employees information electronically. RAA noted on an employer's premises. that evenifF AA is not now capable of For the reasons discussed in the receiving information electronically, we preamble to section V.E. ofappendix I, should nonetheless write it into the rule the FAA has not adopted the proposed
so that when we do have the capability,

. reasonable suspicionlanguage. operators can submit itto the FAA 

### IV. Handling ofTestingResults, Record without first requesting an exemption to 

### Retention, and Confidentiality the rule.

The FAA has determined that it is InNotice 02-04, the FAA proposed to pr:emature to incorporate into the change paragraph B.4. by adding the currentrule text any specific reference sentence "No other form, including to electronicfilings. However, we agree anotherDOT Operating with the spirit ofRAA's commentthat Administration's form, is acceptable for the final rule should allowrooni for ·submission to the FAA." The FAA has developments in acceptance and already made this change in a final rule retention ofelectronic filings. Currently, published December 31, 2003 (68 FR
we are not able to receive registration 75455). information electronically. The FAA is 

### VII. Implementingan AlcoholMisuse eager to pursue avenues for electronic 

### Prevention Program filing, and therefore, inresponse to RAA's suggestion, we have added In Notice 02-Q4, theFAA proposed language in paragraph IX.E.2. to allow eliminating the requirement that each for registration information to be sent employer submit anAlcohol Misuse "inthe form and mannerprescribed by Prevention Program Certification the Administrator." Statement. As with the elimination of program approvarunder appendix I, AppendixJ-AlcoholMisuse each employer or contractor conducting PreventionProgram alcohol testing will be required to either 

### I. General register with the FAA or obtain an Antidrug and Alcohol Misuse InNotice 02-04, the FAA proposed Prevention Program OpSpec, as the following changes in paragraph D. specified intheregulation. 

### ·Definitions. We proposed to eliminate Many ofthe comments on appendix I the definition of"Administrator" · addressed this change in appendixJ as because it is defined elsewhere in 14 well. For the reasons discussed under CFR. We also proposed to change appendix I, wehave also adopted this "Contractor company" to "contractor" change for appendix

### J. to emphasize that a contractorcouldbe In Notice 02-04, the FAA also
an individual. proposed eliminatingthe 180 days

TheFAA did notreceive any · allowed for new employers to ensure comments onthe proposed changes and ,that their contractors are subject to an we adopt them as proposed. alcohol misuse prevention program. 

### II. Covered Employees This provision provided a grace period that was important at the inception of InNotice 02-Q4, we proposedto make

. the alcohol misuse prevention program it clear in appendix

### Jas we did with regulations in 1994 because alcohol appendix I that including an employee testing was a newregulatory in a drug and alcohol testing program requirement for employers and their depends onhis orher duties not contractors. However, since contractor employment status (full time, parttime, programs must nowbe implemented by temporary, or intermittent). Inthis final the time the contractor performs safetyrule, we have·further modified appendix sensitive functions for an employer, this 

### Jto ensure thatthis is clear. We made grace period no longer applies and so a similar change in appendix I in the language is being removed. response to a comment. The FAA received one comment on 

### III. Tests Required the proposed elimination ofthe 180-day

. timeframe. The commenter, DATIA,

· D. Reasonable SuspicionTesting supported the proposed change. The In Notice 02-Q4, the FAA proposedto FAA is adopting the elimination ofthe change the reasonable suspicion 180-day timeframe as proposed. language to allow, butnotrequire, an

. As with appendix

## r, the FAA. employerto have its supervisors make proposed two formats for the rule language inthis section, one mostly in table format, the otherin the format of the currentrule. Several commenters supported the table format, and we are adopting it for the final rule.
Miscellaneous Comments

The FAA received a number of comments that are outside the scope of the proposal. We have not addressed them inthis final rule. PaperworkReduction Act.

This final rule contains information collection activities subject to the Paperwork ReductionAct (44 U.S.C. 3507(d)). Inaccordance with the Paperwork ReductionAct, documentation describing the information collection activities was 'submitted to the Office ofManagement

· and Budget (OMB) for review and approval, and assigned q:mtrol number 2120-0685.

This rule constitutes a changeto the data collection burden for existing and
new companies required or electing to implement antidrug and alcohol misuse preventionprograms. The respondents
are part 121 and 135 certificate holders, operators as defined in§ 135.1(c), air traffic control facilities not operated by the FAA or by or under contract to the U.S. military and part 145 certificate
• holders and non-certificated contractors

that elect to obtain antidrug and alcohol misuse prevention programs. Part i21, 135 and 145 certificate holders will obtain an Operations Specification (OpSpec). Operators as defined in § 135.1(c), air traffic control facilities not operatedbythe FAA or by or under contract to the U. S. military, andnoncertificated contractors will register with the FAA.

A protectionprovided by the Paperwork Reduction Act states that an agency may not conduct or sponsor and
a personis notrequired to respond to
a collection ofinformation unless it P,isplays a currently valid OMB control number. As stated above, the OMB control numbers is 2120-0685. InternationalCompatibility ·

In keeping with U.S. obligations underthe Convention on International Civil Aviation, itis FAA policy to comply with 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 regulations.

### Federal Register/Val. 69, No. 7/Monday, January 12, 2004/Rules and Regulations 1853

Executive Order 12866 and DOT RegulatoryPolicies and Procedures

Changes to Federalregulations must undergo several economic analyses. First, Executive Order 12866 directs that eachFederal agency shall propose or adopt a regulation only upon a reasoned determinationthatthe benefits ofthe intended regulationjustifY its costs. Second, the RegulatoryFlexibility Act of 1980 requires agencies to analyze the economic impact ofregulatory changes
on small entities. Third, the Trade Agreements Act (19 U.S.C. §§ 2531- 2533) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce ofthe United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis ofU.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment ofthe costs, benefits, and other effects ofproposed orfinal rules that include
a Federal mandate likely to result inthe expenditure byState, local, or tribal governments, in the aggregate, orby the private sector, of$100 million or more annually (adjusted for inflation.)

In conductingthese analyses; FAA has determined this rule: (1).Has benefits thatjustifY its costs, is not a "significant regulatory action" as defined in section 3(f) ofExecutive Order 12866, and is not "significant" as defined inDOT's RegulatoryPolicies and Procedures; (2) will not have a significant economic impact on a substantial number ofsmall entities; (3) will notreduce barriers to international t:fade; and does not impose an unfunded mandate on state, local, or tribal governments, or onthe private sector. These analyses, available inthe docket,
are summarizedbelow. Cost ofCompliance

The FAA is changing several sections of 14 CFR part 121, appendices I and

### J; not all ofthese changes will have cost implications. Some ofthe changes to appendix I parallel changes to appendix 

### J; the analysis will combine the sectional changes where appropriate. Information related to the number of companies, the costs oftests, and the salaries ofthe employees canbe found inthe full regulatory evaluation, found inthe docket.

(1) The FAA is amending appendix I, section II, to ensure that employers test all employees, including contractor employees, unless the employees are in
a testing program for a contractor to the employer; this change will impose costs. The currentprovision, which has allowed "moonlighting," is confusing to the industry and is a potential loophole in employee coverage. In most circumstances, the second employer does not and cannot know the employee's status with the first employer.

· Compliance inspections and investigations also show that employers confuse the regulatoryprovisions between the drug and alcohol rules. The current drugrule allows "moonlighting," while the alcohol rule

. does not permit it. Moonlighting occurs mostly among small employers, who often do not know the other employers that the moonlighting employee is working for. Consequently, these employees can potentially escape testing. ·

Only certaintypes ofemployees tend to moonlight; these include part 121/ 135 pilots, mechanics, screeners, sightseer pilots, and part 135 ondemand pilots, primarily single owner operators. The FAAbelieves that the number ofmoonlighting employees is small, but does not know exactly how many ofthese employees moonlight. Accordingly, the FAA will base costs on an additional 1 percent ofthese employees having additional drug tests.

The FAA projects over 10 years, the total number oftests, due to the requirement that moonlighting employees be tested, will sum to 11,100, costing $499,200. Costs for employee time for this testing will sumto $147,200 over 10 years. Total10-year costs oftesting these employees will
sumto $646,300 (present value, $449,900).

(2) The FAA is eliminating section V. B. ofappendix I, periodic testing. The currentregulationrequires that a new employer must periodically drug test part 67 medical certificate holders during the first calendar year of implementation ofIts program; Periodic testing was important at the beginning ofthe program when manypeople were grandfathered into newly approved antidrug programs without.preemploymenttesting. Since all flightcrew members are currently subjectto pree1llployment testing and annual random testing, the FAA believes that the elimination ofperiodic drug testing will

. not compromise safety and will be a cost savings. Cost savings from the elimination ofperiodic drug testing,
over ten years, sums to $122,300 (present value, $85,900).

(3) The FAA will make several changes to section IX ofappendix I and sectionVII ofappendix

### J; two ofthese changes will have cost implications. Provisions that affect part 121, 135, and 145 certificate holders willbe covered in section (3a); and operators as defined by§ 135.1(c);airtraffic control facilities not operatedby the FAA orby or under contractto the U.S. military, and noncertificated contractors in section (3b).

(3a) Part 121, 135, and 145 certificate holders will no longerhave to submit antidrug and alcohol misuse prevention programs to the FAA for approval. The FAA instead will trackthese certificate holders using the Operations Specifications Sub-System (OPSS). Using this system will allow.the FAA to quickly make a change to a specific type ofcertificate holders' operations specifications.

Companies with antidrug and alcohol misuse prevention programs will incur additional costs from these rule· changes. Inthe first year ofthis rule, these companies will have to file new information. New companies will have to do the same in their first year. When the number ofemployees at a company changes to fewer than 50 or greater than
or equal to 50, they will have to send "employment change reports."

The 7,240 existing planholders currently submit 490 amendments each year. The FAA antiCipates that 33 of these amendments will be employment change reports each year after their initial year. In addition, 484 companies submit new plans each year.

Each ofthe existing plan**ho~ders** will. have to spendtime to produce the required information, file and store it, 

# and submit itto the FAA. Total first year costs will be $39,700. Subsequent year costs, which will encompass processing new plans, employment change reports, and amendments sumtQ $5,300. Ten-year costs, at the company level, equal $87,900 (present value, $69,700).

At the FAA, the information being submitted to OPSS will have to be processed. Firstyear costs will be $21,400, while each subsequentyear cost will be about $2,900; costs over ten years sum to $47,400 (present value, $37,600).

All companies will also incur some cost savings, for they will no longer have to file a combined drug plan and
an alcohol·certification statement to the FAA. Thus, each ofthe existing companies will no longerhave to spend time to produce these plans and certification statements. Total first year cost savings willbe $238,100. In subsequent years, new companies would have had to handle plans, while existing companies would have had to process amendments;total annual costs savings, from nothaving to file these amendments and new plans, sum to $18,400. Ten year cost savings, at the

### 1854 Federal Register/Val. 69, No. 7/Monday, January 12, 2004/Rules and Regulations

company level, equal $406,000 (present value, $336,100).

Tenyear net cost savings sum to $270,700 (present value, $228,800).

(3b) These rule changes also will eliminate the antidrug programplan and alcohol misuse preventionprogram certification statementrequirements for
new and existing non-Federal air traffic

· control facilities and operators as

definedby§ 135.1(c). Instead, as with certificate holders, a single registration statementrequirement will suffice for

. both programs. In addition, the FAA will require new and existingnoncertificated contractors·that elect to have
an antidrug and alcohol misuse preventionprogram to register with the FAA.

TheFAA has identified 334 part 135.1(c) operators and 1,228 contractors that will be affected by these rule changes; the contractors include 21 Air Traffic Control (ATC) contractors, and 1,207 other contractors. The FAA does not expect any employment change reports from any ofthese companies.

Each ofthe existing planholders will have to spendtime to producethe required information, file and store it, and submititto the FAA. Total first year costs 

### will be $11,000, while total annual costs for existing company amendments and new companyplans
sumto $1,500. Tenyear costs equal $24,200 (present value, $19,200).

At the FAA, first year costs will be $5,900, while each subsequent year cost 

### will be about $800. Costs overten years sum·to $13,000 (present value, $10,400).

These companies will no longer have to file an alcohol certification statement and a drug plan, resulting in cost savings. Total first year cost savings will be $66,000, while total annual costs for the existing company amendments and
new companyplans sum to $5,400, Ten

. year cost savings equal $111,900 (present value, $92,700).

Tenyearnet cost savings sum to $74,700 (present value, $63,200).

Total cost for these rule changes sums

. to $178,600 (net present cost, $72,000).

The total cost to the industry sums to $239,100 (presentvalue, $119,900) and total costs savings to the FAA sums to $60,400 (present value, $48,000). Analysis ofBenefits

The FAA believes that these new rules canresult in enhanced safety and concludes that several specificbenefits will accrue from these rule changes.

The specific changes to preemploymenttesting will result in a number ofbenefits. The FAAbelieves that certain employers had ·misunderstoodthe current requirements and that therequirements willbe better understood. This will reduce the number ofpre-employment enforcement
cases. From 2000 through 2002, the FAA initiated 197legal enforcement
cases dealing with pre-employment violations, or an average of66 cases per year. The FAA believes that these changes canreduce the number oflegal enforcement cases, saving both the FAA and the industrytime andresources.

Pre-employment testing acts as the "gatekeeper." Sincethis type oftesting has the largest number ofpositives, itis
a major tool that would keep drug users from getting into the aviation industry in the first place. Most ofthe other drug and alcohol tests are largely deterrence based. Clarifying pre-employment requirements is important, as the process will reduce the number.of mistakes by employers that can lead to employees not being pre-employment tested, the consequences including both potential safety impacts and enforcement actions for noncompliance.

Companies no longerhaving to file antidrug plans and alcohol misuse preventionprogram certification statements will bring about some cost savings. In addition to the cost savings discussed above, each company will benefit from a reduction inthe paperworkburden; the FAA will also realize these same benefits. These rule · changes will increase consistency between appendices I and

### J, where possible. Elimination ofunnecessary differences will reduce industry inquiries into the current conflicts between the two, saving both individual companies and the FAA time and resources, as well as better compliance with the regulations. Comparison ofCosts and Benefits

This action will.make a number of 'Changes in orderto make the antidrug

. and alcohol misuse prevention programs more efficient. The modifications to testing requirements, the changes to program submission requ\fements, and the elimination ofthe antidrug plans and the alcohol misuse preventionprogram certification statements should make these programs more effective.

These rules willresult in a net cost of $178,600 (net present value, $72,000). The public will benefit from: -Increased safety, byreducing the

likeli.)10od that a drug userwillbe employed in a safety-sensitive position due to clarified pre-. employmentrequirements; -Reduced paperwork, by companies no

longer having to file an alcohol certification statement and a drug plan; and -Enhanced program management, due to the elimination ofunnecessary differences between appendices I and 

### J. Accordingly, the FAA finds these requirements to be cost-beneficial. RegulatoryFlexibilityDetermination

The Regulatory FlexibilityAct of 1980 (RFA) establishes "as a principle of regulatory issuance that agencies shall endeavor•. consistent with the objective ofthe rule and ofapplicable statutes, to fit regulatory and informational requirements to the scale ofthe business, organizations, and governmentaljurisdictions 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 organization's and small governmentaljurisdictions.

Agencies must perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number ofsmall entities. 

### Ifthe agency determines that it will, the agency mustprepare a regulatory flexibility analysis as described in the Act.·

However, ifan agency determines that

·a ·proposed or final rule is not expected tohave a significant economic impact
on a substantial number ofsmall entities, section 605(b) ofthe 1980 RFA provides that the head ofthe agency may so certify and a regulatory flexibility analysis is notrequired. The certification must include a statement providingthe factual .basis for this detenp.ination, and thereasoning should be clear. · · .

For this rule, the small entity groupis considered to be part 121 and 135 air carriers (Standard Industrial Classification Code [SIC] 4512) and part 145 repair stations (SIC Code 4581, 7622, 7629, and 7699). The FAA has identified a total of98 ofa total of 144 part 121 air carriers and 2,118 ofa total of3,074 part 135 air carriers that are small entities. However, the FAA has been unable to determine how many of the 2,412 part 145 repair stations are considered small entities, and·so called for comments hi Notice 02-04, but received none.

The annualized cost ofthese rule changes to the industry is $17,100. The FAA is unable to isolate the cost savings to each industry group because some of the changes apply to individual companies while others apply to the employees. So, the FAA looked at the average cost impact oneach ofthe small entities and also on all ofthe small entity industry groups. Ifall the cost

### Federal Register/Vol. 69, No. 7/Monday, January 12, 2004/Rules and Regulations 

### 1855

were borne by only small part 121 air carriers, small part 135 air carriers, or applicable repair stations, the average cost per certificate holder wouldbe $174, $8, or $7, respectively. Ifthe cost savings were divided among all ofthese business entities, the average cost savings per entity would be $4 per entity. Consequently, the FAA certifies that the rule will nothave a significant economic impact on a substantial number ofthese entities. International Trade Impact Statement ·

The Trade Agreement Act of 1979 prohibits Federal agencies from establishing any standards or engaging inrelated activities that create unnecessary obstacles to the foreign
commerce ofthe United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration ofinternational standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed thepotential effect ofthis final rule and determined that it will have only a domestic impact and therefore no

. effect on any trade-sensitive activity. Unfunded MandatesDetermination

The Unfunded Mandates Reform Act of 1995 (the Act) is intended, among other things, to curb the practice of imposing unfunded Federalmandates
on State, local, and tribal governments. Title II ofthe Act requires each Federal agency to prepare a written statement assessing the effects ofany Federal mandate in a proposed or final agency rule that may result in an expenditure of$100 million or more (adjusted annually fpr inflation) in any one year by State, local, and tribal governments, inthe aggregate, or bythe private sector; such a mandate is deemed to be a "significant regulatory action." This final rule does not contain such a mandate. The requirements ofTitle IT do not apply. Executive Order 13132, Federalism

The FAAhas analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. We determined thatthis actionwill not have a substantial direct effect onthe States, on the relationship betweenthe. national Government and the States, or onthe distribution ofpower and responsibilities among the various levels ofgovernment. Therefore, we determined that this final rule does not have federalism implications. EnvironmentalAnalysis

FAA Order 1050.1D defines FAA actions that may be categorically excluded from preparation ofa National Environmental PolicyAct (NEPA) environmental impact statement. In accordance with FAA Order 1050.1D, appendix 4, paragraph 4(j), this rulemaking action qualifies for a categorical exclusion. Regulations That Significantly Affect Energy Supply, Distribution, orUse

The FAAhas analyzed this final rule underExecutive Order 13211, Actions Concerning Regulations that SignificantlyAffect Energy Supply,

·Distribution, orUse (May 18, 2001). We have determined that it is not a "significant energy action" under the executive order because itis not a "significantregulatory action" under Executive Order 12866, and it is not likely to have a significant adverse effect
on the supply, distribution, or use of energy. List ofSubjects in 14 CFR Part 121

Air carriers, Aircraft, Airmen, Alcohol abuse, Alcoholism, Aviation safety, Charter flights, Drug abuse, Drug testing, Reporting and recordkeeping requirements, Safety, Transportation

. TheAmendment

• Inconsideration oftheforegoing, the Federal Aviation Administration amends part 121 oftitle 14, Code of Federal Regulations, as follows:

PART 121-0PERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL OPERATIONS.

• 1. The authoritycitationfor part 121 continues to read as follows:

Authority: 49 U.S.C. 106(g). 40113, 40119, 41706,44101,44701-44702,44705,44709- 44711,44713,44716-44717,44722,44901, 44903-44904,44912,45101-45105,46105, "46301.

• 2. Amend appendixIto part 121 as follows:
• A. Insection I., addnewparagraphsD andE·
• B.

# fu**~ection** II., removethe definition ofContractor company; add new definitions for Contractor and Hire in alphabetic order; andrevise the definitions ofEmployee and Employer;
• C. Revise sectionill.;
• D. In sectionV., revise paragraphA.;
remove paragraph B.; redesignate paragraph C. as paragraph B.; redesignate paragraphs B.8., B.9., and B.10. as paragraphs B.9., B.10., and B.11., respectively; add a newparagraph B.8; redesignate paragraph D. as paragraph C.; redesignate paragraph E. as paragraph D. and revise it; redesignate paragraph F.
as paragraph E.; and redesignate paragraph G. as paragraph F.; • E. In sectionVI., revise paragraphD.1;
• F. InsectionVII., reviseparagraphC.5;
• G. Revise sectionIX; and
• H. InsectionXIII., revise introductory text and paragraph B.

The additions and revisions read as follows: Appendix I to Part 121-DrugTesting Program * 

### * * * *

I. General. 

### * * * 

### * *

D. Applicable FederalRegulations. The following applicable regulations appear in 49 CFR or 14 CFR: 1. 49CFR

Part 40-Procedures for Transportation Workplace Drug Testing Programs 2.14 CFR 61.14-Refusalto submit to a drug or alcohol test. · 63.12b-Refusal to submit to a drug or alcohol test. 65.23-Refusal to submit to a drug or alcohol test. 65.46-Use ofprohibited drugs.

·67.107-First-Class Airman Medical Certificate, Mental. ' 67.207-Second-Class AirmanMedical Certificate, Mental. 67.307-Third-Class AirmanMedical Certificate, Mental. 121.429-Prohibited drugs. 121.455-Use ofprohibited drugs. 121.457-Testing for prohibited drugs. 135.1-Applicability. · 135.249-Use ofprohibited drugs. 135.251-Testing for prohibited drugs. 135.353-Prohibited drugs.

E. Falsification. No. person may make, or cause to be made, any ofthe following:

1. Any fraudulent or intentionallyfalse statementin any application ofan antidrug program.

2. Any fraudulent or intentionallyfalse · entry in any record orreport that is made, kept, orusedto show compliance with this appendix.

3. Any rep.roduction or alteration, for fraudulent purposes, ofany report orrecord required to be kept by this appendix.

II. Definitions. * * * 

### * * 

### * * *

Contractoris an individual or company thatperforms a safety-sensitive function by contract for an employer or another contractor. 

### * * * 

### * *

Employee is a person who is hired, either directly orby contract, to perforiil. a safety- · sensitive function for an employer, as defined below. An employee is also a person who transfers into a position to perform a safety-sensitive function for an employer.

Employeris a part 121 certificate holder, a part 135 certificate holder, an operator as defined in§ 135.1(c) ofthis chapter, or an air traffic control facility not operatedby the FAA orby orunder contract to the U.S. military. An employermay use a contract employee who is not included under that employer's FAA-mandated antidrug program to perform a safety-sensitive function only if

### 1856 Federal Register/Val. 69, No. 7/Monday, January 12, 2004/Rules and Regulations

that contract employeeis included under the contractor's FAA-mandated antidrug program and is performing a safety-sensitive function
on behalf ofthat contractor (i.e., within the scope ofemployment with the contractor.) * 

### * 

### * * *

Hire means retaining an individual for a safety-sensitive function as a paid employee,
as a volunteer, or through barter or other form ofcompensation. 

### * * * * *

III. Employees Who Must be Tested. Each employee, including any assistant, helper,"or individual in a training status, who performs
a safety-sensitive function listed in this section directly orby contract for an employer as defined inthis appendixmust be subject to drug testing under an antidrug program implemented in accordance with this appendix. This includes full-time, parttime, temporary, and intermittent employees regardless ofthe degree ofsupervision. The safety-sensitive functions are:

A. Flight crewmember duties. B. Flight attendant duties. C. Flight instruction duties. D. Aircraft dispatcher duties. E. Aircraft maintenance and preventive maintenance duties.

* F. Ground security coordinator duties.

G. Aviation screening duties. H. Air traffic control duties. 

### * * * * V. Types of Drug TestingRequired. * A. Pre-Employment Testing. 1. No employermay hire any indivldual for
a safety-sensitive function listedin section III ofthis appendix unless the employer first conducts a pre-employmenttest and receives
a verified negative drug testresult for that individual.

2. No employer may allow an individual to transfer from a nonsafety-sensitiveto a safety-sensitive function unless the employer rust conducts a pre-employment test and receives a verified negative drug test result for the individual.

3. Employers must conduct another preemploymenttest and reCeive a verified negative drug test resultbefore hiring or transferring an individualinto a safety-

. sensitive function ifmore than 180 days elapse between conducting the preemploymenttest required by section V.A.1.
orV.A.2. ofthis appendix and hiring or transferring the individual into a safetysensitive function, resulting inthat

If you are

...
1. A part 121 or 135 certificate holder individual being broughtunder an FAA drugtesting program.

4. Ifthe following criteria are met, an employer is permitted to conduct a preemployment test, and ifsuch a test is conducted, the employer must receive a negative testresult before putting the individual into a safety-sensitive function:

(a) The individual previously performed a safety-sensitive function for the employer and the employer is Iiot requiredto preemployment test the individual under section: V.A.1. or V.A.2 ofthis appendix before putting the individual to workin a safety-sensitive function;

(b) The employer removed the individual from the employer's random testing program conductedunder this appendix for reasons other than a verified positive test result on an FAA-mandated drug test or a refusal to submit to suchtesting; and

(c) The individual will be returning to the performance ofa safety-sensitive function.

5. Before hiring or transferring an individual to a safety-sensitive function, the employer must advise each individual that the individual will berequiredto undergo pre-employment testing in accordance with this appendix, to determine the presence of marijuana, cocaine, opiates, phencyclidine (PCP), and amphetamines, or a metabolite of those drugs in the individual's system. The employer shall provide this same notification to eachindividualrequired by the employer to undergo pre-employment testing under section V.A.4. ofthis appendix.

B. Random Testing. * * * * 

### *

8. Each employer shall require that each safety-sensitive employee who is notified of selection for random drug testing proceeds to the collection site immediately; provided, however, that ifthe employee is performing
a safety-sensitive function atthe time ofthe notification, the employer shall instead
ensure that the employee ceases to perform the safety-sensitive function and proceeds to the collection site as soon as possible. 

### * * 

### * * *

D. TestingBased on Reasonable Cause. Each employermust test each employee who ,performs a safety-sensitive function and who is reasonably suspected ofhaving used a prohibited drug. The decision to test mustbe based on a reasonable and articulable belief that the employee is using a prohibited drug
onthe basis ofspecific contemporaneous

You must

... physical, behavioral, orperformance indicators ofprobable drug use. At least two ofthe employee's supervisors, one ofwhom is trained in detection ofthe symptoms of possible drug use, must substantiate and
concur inthe decision to test an employee who is reasonably suspected ofdrug use; except that in the case ofan employer, other than a part 121 certificate holder, who employs 50 or fewer employees who perform safety-sensitive functions, one supervisor who is trained in detection ofsymptoms of possible drug use must substantiate the decision to test an employee who is reasonably suspected ofdrug use. 

### * 

### * * 

### *

VI. Administrative and OtherMatters. 

### * * * 

### * *

D. Refusal to Submit to Testing. 1. Each employer must notify the FAA within 5 working days ofany employee who holds a certificate issued under part 61, part 63, or part 65 ofthis chapter who has refused to submit to a drug test requiredunder this appendix. Sendthese notifications to: Federal AviationAdministration, Office of Aerospace Medicine,. Drug Abatement Division (AAM-800), 800 Independence Avenue, SW, Washington, DC20591. 

### * * * 

### * *

VII. MedicalReview Officer/Substance AbuseProfessional, andEmployer Responsibilities. · * 

### * * 

### * *

C. Additional Medical Review Officer, SubstanceAbuseProfessional, andEmployer ResponsibilitiesRegarding 14 CFR part67 AirmanMedical Certificate Holders. * 

### * * 

### * *

5. Reports requiredunder this**sectio~** shall be forwarded to the Federal Air Surgeon, Federal AviationAdministration, Office of Aerospace Medicine, Attn: Drug Abatement Division (AAM-800), 800 Independence Avenue, SW., Washington, DC 20591. 

### * * * 

### * *

IX. Implementing an AntidrugProgram. A. Each company mustmeetthe requirements ofthis appendix. Use the following chart to determine whetheryour company must obtain an Antidrug and Alcohol Misuse Prevention Prograin Operations Specification or whether you mustregister withthe FAA:

Obtain an Antidrug and Alcohol Misuse Prevention Program Operations

Specification by contacting your FAA Principal Operations Inspector. 2. A sightseeing operator as defined in·§ 135.1(c) of this chapter

.......... Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM-810), 800 Independence Avenue, SW, Washington, DC 20591 by March 12, 2004. 3. An air traffic control facility not operated by the FAA or by or under

contract to the U.S. Military.

4. A part 145 certificate holder who has your own antidrug program

5. A contractor who has your own antidrug program

.............................. Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM-810), 800 Independence Avenue, SW, Washington, DC 20591 by March 12, 2004. Obtain an Antidrug and Alcohol Misuse Prevention Program Operations

Specification by contacting your Principal Maintenance Inspector. · Register with the FAA, Office of Aerospace Medicine, Drug Abatement

Division (AAM-810}, 800 Independence Avenue, SW, Washington, DC 20591 by March 12, 2004. ·

### Federal 

### Register/Val. 69, No. 7/Monday, January 12, 2004/Rules and Regulations 1857

B. Use 4le following chart for implementing an antidrug program ifyou are applying for a part 121 or 135 certificate, if you intend to begin sightseeing operations as defined in§ 135.1(c) ofthis chapter, or ifyou

If you are

... intend to begin airtraffic control operations [not operatedbythe FAA orby or under contract to the U.S. military.) Use it to determine whether you need to have an Antidrug and Alcohol Misuse Prevention

You must

... Program Operations Specification, or whetheryou need to register with the FAA. Your employees ·who perform safety-sensitive duties must be tested in accordance with this appendix. The,chart follows:

1. Apply for a part 121 certificate or apply for a part 135 certificate

....... a. Have an Antidrug and Alcohol Misuse· Prevention Program Operations Specification, b. Implement an FAA antidrug program no later than the date you start

operations, and · c. Meet the requirements ofthis appendix. 2. Intend to begin sightseeing operations as defined in §135.1(c) of

this chapter. a. Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM-810), 800 Independence Avenue, SW, Washington, DC 20591 prior to starting operations, b. Implement an FAA antidrug program no later than the date you start

operations, and
c. Meet the requirements of-this appendix. 3. Intend to begin air traffic control operations (at an air traffic control

facility not operated by the FAA or by or under contract to the U.S. IT]ilitary). a. Register with the FAA. Office of Aerospace Medicine, Drug Abatement Division (AAM-810), 800 Independence Avenue, SW, Washington, DC 20591, ·

C. 1. Ifyou are an individualor company that intends to provide safety-sensitive services by contract to a part 121 or 135 certificate holder, a sightseeing operation as definedin§ 135.1(c) ofthis chapter, or an air

If you

...

a. Are a part 145 certificate holder b. Implement an FAA antidrug program no later than the date you start operations, and · c. Meet the requirements ofthis appendix.

traffic control facility not operatedby .the FAA or by or under contractto the U.S. military, use the chart inparagraph C.2 of this sectionto determine whatyou must do

You must

... ifyou optto have your o'Wn antidrug program.

2. The following chart explains what you must do ifyou opt to have your own antidrug program:

i. Have an Antidrug and Alcohol Misuse Prevention Program .Operations Specification, ii. Implement an FAA Antidrug Program no.later than the date you start

performing safety-sensitive functions for a part 121 or 135 certificate holder or sightseeing operator as defined in§ 135.1(c) of this chapter, and · ·iii. Meet the requirements of .this appendix as if you were an employer. b. Are a contractor (e.g., a security company, a non-certificated repair

station, a temporary employment service company or any other individual or company that provides safety-sensitive services). i. Register with the F_AA,' Office of Aerospace Medicine, Drug Abatement Division (AAM-810), 800 Independence Avenue, SW, Washington, DC 20591,

D. 1. To obtain an Antidrug andAlcohol Misuse Prevention Program Operations Specification;you must contact your FAA Principal Operations Inspector or Principal Maintenance Inspector. Provide him/herwith the following information:

a. Company name. b. Certificate number.
c. Telephone nUinber. d. Address where yourAntidrug and Alcohol Misuse Prevention Program records·
are kept.

e. Whether you have 50 or more safetysensitive employees, or 49 orfewer safetysensitive employees. (Part 121 certificate holders are not required to provide this information.)

2. You must certify onyour Antidrug and Alcohol Misuse Prevention Program Operations Specification issuedby your FAA Principal Operations Inspector or Principal MaintenanceInspector thatyou will comply ii. Implement an FAA Antidrug Program no later than the date you start performing safety-sensitive functions for- a part 121 or 135 certificate holder, a sightseeing operator as defined in §135.1(c) of this chapter, or an air traffic control facility not operated by the FAA or by or under contract to the U.S. military, and iii. Meet the requirements of this appendix as if you were an employer.

with this appendix, appendix

### Jofthis part, and 49 CFR part40.

.

3. You are required to obtain only one Antidrug and Alcohol Misuse.Prevention Program Operations Specificationto satisfy this requirementunder this appendix and appendix

### Jofthis part.

4. You must updatethe Antidrug and Alcohol Misuse PreventionProgram

·Operations Specification when any changes to the information contained inthe Operation Specification occur.

E. 1. To register with the FAA, submitthe following information:

a. Company name. b; Telephone number.
c. Address where yourAntidrug and Alcohol Misuse Prevention Program records
are kept.

d. Type ofsafety-sensitive functions you perform for an employer (such as flight instruction duties, aircraft dispatcher duties, maintenance or preventivemaintenance duties, ground security coordinator duties, aviation screening duties, air traffic control duties).

·e. Whether you have 50 or more safetysensitive employees, or 49 orfewer covered employees.

.

f. A signed statement indicating that: your company will comply with this appendix, appendix

### Jofthis part, and 49 CFR part 40; and, ifyou are a contractor, you intendto provide safety-sensitive functions by contract to a part 121 or part 135 certificate holder,
a sightseeing operator as defined in§ 135.1[c) ofthis chapter, or an air traffic control facility not operatedby the FAA or by or under contractto the U.S. military.

2. Send this information inthe form and
manner prescribed by the Administrator, in duplicate to: The Federal Aviation Administration, Office ofAerospace Medicine, Drug AbatementDivision (AAM-

### 1858 Federal RegisterIVol. 69, No. 7IMonday, January 12, 2004 I Rules and Regulations

810), 800 Independence Avenue, SW., Washington, DC 20591.

3. Update the registration information as changes occur. Send the updates in duplicate to the address specified inparagraph 2.

4. This registration will satisfy the registration requirements forboth your Antidrug Program under this appendix and your Alcohol Misuse Prevention Program under appendix

### Jofthis part. 

### * * 

### * * *

XIII. Waiversfrom 49 CFR 40.21. An employer subject to this part may petition the Drug AbatementDivision, Office of Aerospace Medicine, for a waiver allowing

. the employerto stand down ail employee following a report ofa laboratory confirmed positive drug test or refusal, pendingthe outcome ofthe verification process. 

### * * * * 

### *·

B. Each petition for a waiver mustbe submitted to the Federal Aviation Administration, Office ofAerospace Medicine, Drug Abatement Division (AAM800), 800 Independence Avenue, SW., Washington, DC 20591. · 

### * * 

### * * 

### *

• 3. InappendixJtopart 121:
• A. In sectionI., amendparagraphD. to
remove the definitions for "Administrator" and "Contractor company"; add a definition for

. "Contractor" in alphabetical order; and add paragraphs H. and L;

• B. In sectionII., revisethe introductory text ofparagraph A.;
• C. In sectionV., revise paragraphs C.3. and D.1.; and


### • D. Revise section

### VII.

The additions and revisions read as follows: Appendix

### JTo Part 121-Alcohol Misuse PreventionProgram 

### * * * 

### *
I. General * 

### * 

### * * *

Ifyou are.
1. A part 121 or 135 certificate holder D. Definitions 

### * 

### * * 

### * *

Contractormeans an individual or company that performs a safety-sensitive function by contractfor an employer or another contractor. 

### * 

### * * * *

H. Applicable FederalRegulations. The following applicable regulations appear in 49 CFR and 14 CFR: 1. 49 CFR
Part 40-Procedures for Transportation Workplace Drug Testing Programs
2.14 CFR 61.14-Refusal to submit to a drug or alcohol test. 63.12b-Refusal to submit to a drug or alcohol test. 65.23-Refusal to submit to a drug or alcohol test. 65.46a-Misuse ofAlcohol. 65.46b-Testing for Alcohol. 67.107-First-Class Airman Medical Certificate, Mental. 67.207-Second-Class Airman Medical Certificate, Mental. 67.307-Third-Class Airmari Medical Certificate, Mental. 121.458-Misuse ofalcohol. 121.459-Testingfor alcohol. 135.1-Applicability. 135.253.,.-Misuse ofalcohol. 135.255-Testingfor alcohol.

I. Falsification. No personmay make, or cause to be made, any ofthe following:

1. Any fraudulent or intentionally false statement in any application ofan alcohol

· misuse prevention program. 2. Any fraudulent or intentionally false entry in any record orreport thatis made, kept, orused to show compliance with this appendix.

3. Any reproduction or alteration, for fraudulent purposes, ofany report orrecord requiredto be kept by this appendix.
II. Covered Employees

A. Each employee, includingany assistant, helper, or individual in a training status, who ·
You must:

.. performs a safety-sensitive function listed in this section directly-or by contr.act for an employer as defined in this appendix mus_t be subjectto alcohol testing under an alcohol misuse prevention program implementedin accordance with this appendix. This not only includes full-time and part-time employees, but temporary and intermittent employees regardless ofthe degree ofsupervision. The safety-sensitive functions are: 

### * * 

### * * *
V. Consequences for Employees Engaging in Alcohol-Related Conduct * 

### * 

### * * 

### *
C. Notice to theFederalAirSurgeon 

### * 

### * * *

3. All documents mustbe sentto the Federal Air Surgeon, Federal Aviation_ Administration, Office ofAerospace Medicine, Attn: Drug Abatement Division (AAM-800), 800 Independence Avenue, SW, Washington, DC 20591. 

### * * 

### * *
D. Notice of Refusals 1. Except as providedin subparagraph 2 of this paragraph D, each employer shallnotify the FAA within 5 working days ofany covered employee who holds a certificate issued under 14 CFR part 61, part 63, orpart 65 who has refused to submitto an alcohol test required under this appendix. Notifications mustbe sentto: Federal Aviation Administration;Office ofAerospace Medicine, Drug AbatementDivision (AAM800), 80.0 Independence Avenue, SW, Washington, DC 20591. * 

### * * * *
VII. HowTo Implement an Alcohol Misuse PreventionProgram

A. Each company must meet the requirements ofthis appendix. Use the following chart to determine whether your

. company must obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification or whetheryou mustregister with the FAA:

Obtain an Antidrug and Alcohol Misuse Prevention Program Operations

Specification by contacting your FAA Principal Operations Inspector. 2. A sightseeing operator as defined in § 135.1 (c)

.................................. Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM-810), 800 Independence Avenue, SW, Washington,

3. An air traffic control facility not operated by the FAA or by or .under

contract to the U.S. Military.

4. A part 145 certificate holder who has your own alcohol misuse prevention program.
5. A "Contractor who has your own alcohol misuse prevention program DC 20591 by March 12, 2004.

. . Register with the FAA, Office cif Aerospace Medicine, Drug Abatement

Division (AAM-810), 800 Independence Avenue, SW, Washington, DC 20591 by March 12, 2004. Obtain an Antidrug and Alcohol Misuse Prevention Program Operations

Specification by contacting your FAA Principal Maintenance Inspector. Register with the FAA, Office of Aerospace Medicine, Drug Abatement

Division (AAM-810), 800 Independence Avenue, SW, Washington, DC 20591by March 12, 2004.

B. Use the following chartfor implementing anAlcohol Misuse Prevention Program ifyou are applying for a part 121 or 135 certificate, ifyou intendto begin sightseeing operations as defined in § 135.1(c) ofthis chapter, or ifyou intendto begin air traffic control operations (not operatedby the FAA orby or under contract to the U.S. military.) Use itto determine whether you need to have an Antidrug and Alcohol Misuse Prevention Program OperationsSpecification, or whetheryou need to register with the FAA. Your employees who perform safety-sensitive

### Federal Register 

### IVol. 69, No. 7/Monday, January 12, 2004/Rules and Regulations 

### 1859

duties mustbe tested in accordance with this appendix. The chart follows:

If you

... You must

... 1. Apply for a par:! 121 certificate or apply for a part 135 certificate

....... a. Have an Antidrug and Alcohol Misuse Prevention Operations Specification, b. Implement an FAA Alcohol Misuse Prevention Program no later than

the date you start operations, and
c. Meet the requirements ofthis appendix. 2. Intend to begin sightseeing operations as defined in § 135.1 (c) of

this chapter

.. a. Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM-810), 800 Independence Avenue, SW, Washington, DC 20591 prior to starting operations, b. Implement an FAA Alcohol Misuse Prevention Program no later than

the date you start operations, and
c. Meet the requirements ofthis appendix. 3. Intend to begin air traffic control operations (at an air traffic control

facility not operated by the FAA or by or under contract to the U.S. military). a. Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM-810), 800 Independence Avenue, SW, Washington, DC 20591,

C. 1. Ifyou are an individual or a company that intends to provide safety-sensitive services by contract to a part 121 or 135 certificate holder or a sightseeing operator as defined in§ 135.1(c) ofthis chapter, use the

If you

...

a. Are a part 145 certificate holder b.Implement an FAA Alcohol Misuse Prevention Program no later than the date you start operations, and
c. Meet the requirements ofthis appendix.

chart in paragraph C.2. ofthis section to determine what you must do ifyou opt to have your ownAlcohol Misuse Prevention

. Program.

You must

... 2. The following chart explains what you must do ifyou opt to have your ownAlcohol Misuse Prevention Program:

i. Have an Antidrug and Alcohol Misuse Prevention Program Operations Specification, ii. Implement an FAA Alcohol Misuse Prevention Program no later than

the date you start performing safety-sensitive functions for a part 121
or 135 certificate holder or sightseeing operator as defined in § 135.1(c) ofthis chapter, and iii. Meet the requirements of this appendix as if you were an employer. b. Are a contractor (e.g., a security. company, a noncertificated repair

station, a temporary employment service company or any other individual or company that provides safety-sensitive services). i. Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM-810), 800 Independence Avenue, SW., Washington, DC 20591,

D. 1. To obtain an Antidrug andAlcohol Misuse Prevention Program Operations Specification, you must contactyour FAA Principal Operations Inspector or Principal Maintenance Inspector. Provide him/herwith the following information:

a. Company name. b. Certificate number.
c. Telephonenumber. d. Address where your Antidrug and· Alcohol MisusePreventionProgram records
are kept.

e. Whetheryou have 50 ormore covered employees, or 49 or fewer covered employees. (Part 121 certificate holders are notrequired to provide this information:)

2. You must certify onyour Antidrug and Alcohol Misuse PreventionProgram Operations Specification, issuedby your FAA Principal Operations Inspector or Principal Maintenance Inspector, thatyou will comply with appendix I ofthis part, this appendix, and 49 CFR part40.

3. You are required to obtain only one Antidrug and Alcohol Misuse Prevention Program Operations Specification to satisfy ii. Implement an FAA Alcohol Misuse Prevention Program no later than the date you start perfonning·safety-sensitive functions for a part 121
or 135 certificate holder or sightseeing operator as defined in § 135.1(c) ofthis chapter, and iii. Meet the requirements ofthis appendix as if you were an employer·.

this requirementunder appendix I ofthis part andthis appendix.

4. You must update the Antidrug and Alcohol Misuse Prevention Program Operations Specification when any changes to the information contained inthe Operation Specification occur.

E. 1. To register with the FAA, submit the following information:

a. Company name. b. Teltiphone number.
c. Address where yourAntidrug and Alcohol Misuse Prevention Program records
are kept.

d. Type ofsafety-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).

e. Whetheryou have 50 ormore covered employees, or 49 or fewer covered employees.

.

. f. A signed statementindicating that: Your

company will comply with this appendix, appendix I ofthis part, and 49 CFR part 40; and, ifyou are a contractor, you intendto provide safety-sensitive functions by contract to a part 121 or part 135 certificate holder,
a sightseeing operator as defined by § 135.1(c) ofthis chapter, or an air traffic control·facility not operated by the FAA or by or under contract to the U.S. military.

2. Sendthis information inthe form and
manner prescribed by the Administrator, in duplicate to: The Federal Aviation Administration, Office ofAerospace Medicine, Drug AbatementDivision (AAM810), 800 Independence Avenue, SW., Washington, DC 20591.

3. Update the registration information as changes occur. Send the updates in duplicate to the address specified inparagraph 2.

4. This registration will satisfy the registration requirements for both your Antidrug Program under appendix I ofthis part andyour Alcohol Misuse Prevention Program underthis appendix. 

### * 

### * * 

### *

### 1860 

### Federal Register 

### IVol. 69, No. 7

### IMonday, January 12, 2004 

### IRules and Regulations

Issued inWashington, DC, onJanuary 5, 2004. Marion C. Blakey, Administrator. [FRDoc. 04-482 Filed 1-9-04; 8:45 am]
BILLING CODE 4910-13-P

### Federal Register/Val. 74, No. 92/Thursday, May 14, 2009/Rules and Regulations 22649

actions are consideredFAA-approved ifthey
are approved by the State ofDesign Authority (or their delegated agent). You are required to assure the productis airworthy before it is returned to service.

(3) ReportingRequirements:For any. reporting requirement inthis AD, under the provisions ofthe Paperwork Reduction Act, the Office ofManagement and Budget (OMB) has approved the information collection requirements and has assigned OMB Control Number 2120'-0056. Related Information

(h) Refer to MCAI Canadian Airworthiness Directive CF-2009-08, dated March 9, 2009; BombardierAlert Service Bulletin A670BA21-022, dated August 3, 2006; and Tasks 21- 32-01-000-801 and 21-32-01-400-801 of the Bombardier CRJ Regional Jet Series Aircraft Maintenance Manual, CSP B-001, Part 2, Volume 1, Revision 28, dated January 20, 2009; for related information. Material Incorporated by Reference

(i) You must use Bombardier Alert Service Bulletin A670BA-21-022, datedAugust 3, 2006; Task**21~32-01-000-80~** ofthe Bombardier CRJ Regional Jet Series Aircraft Maintenance Manual, CSP B-001, Part 2, Volume 1, Revision 28, datedJanuary 20, 2009; and Task 21-32-01-400-801, ofthe

LIST OF EFFECTIVE PAGES Bombardier·CRJ RegionalJet Series Aircraft Maintenance Manual, CSP B-001, Part 2, Volume 1, Revision .28, dated January 20, 2009; as applicable; to do the actions required by this AD, unless the AD specifies otherwise. The optional terminating actions, ifdone, m).lst be done in accordance with Bombardier Alert Service Bulletin A670BA21-022, dated August 3, 2006. Bombardier CRJ Regional Jet Series Aircraft Maintenance Manual, CSP B-001, Part 2, Volume 1, Revision 28, datedJanuary 20, 2009, contains the following effective pages:

Page title/description Page number(s) Revision number Date shown on page(s)

Title Page

............................................................................... None shown

................... 28

.................................... January 20, 2009. List of Chapters

...................................................................... 1-2

.................................. 28

.................................... January 20, 2009. Chapter 21 List of Effective Pages

........................................ 1-39

................................ None shown*

.................. January· 20, 2009. Task 21-32.,..01.,..000-801

...................................................... 401-403

.......................... None shown*

.................. July 20, 2008. Task 21-32.,..01-400-801

...................................................... 408-411

.......................... None shown*

.................. July 20, 2008.

(*The revision level is specified only on the title page and List of Chapters pages of this document.)

(1) The Director ofthe Federal Register approved the incorporation by reference of this service information under 5U.S.C. 552(a) and 1 CFR part 51.

(2) For service information identified in this AD, contact Bombardier, Inc., 400 CoteVertu Road West, Dorval, Quebec H4S 1Y9, Canada; telephone 514-855-5000; fax 514- 855-7401; e•mail thd.crj@aero.bombardier.com; Internet http:/ !www.bombaidier.com. (3) You may review copies ofthe service illformation at the FAA, TransportAirplane Directorate, 1601 Lind Avenue, SW., Renton, Washington. For information onthe availability ofthis material atthe FAA, call 425-227-1221 ot425-227-1152.

(4) You may also review copies ofthe service information that is incorporated by reference atthe National Archives and Records Administration (NARA). For information on the availability ofthis material at NARA, call**202-741~030,** or go to: http:/ /www.archives.gov/federal_register/ code_ofJederal_regulations/ibr_ locations.html.

Issued inRenton, Washington, onMay 6, 2009. AliBahrami, Manager, TransportAirplaneDirectorate, Aircraft Certification Service. [FR Doc. E9-11139 Filed 5-13-09; 8:45am]

OLUNO**CO~ O>~>~** 



## EXHIBIT 

# i 

# A-**l~** DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration

14 CFR Parts 61, 63, 65, 91, 120, 121, 135 [Docket No. FAA-2008-0937; Amendment Nos.61-122,63-37,65-53,91-307, 12Q0,121-343,135-117]
RIN 212Q-AJ37 Drug and Alcohol Testing Program

AGENCY: Federal Aviation Administration (FAA), DOT.**~CTION:** Final rule.

SUMMARY: This action amends the FAA's drug and alcohol regulations to place them in a new part. The FAA is not .making any substantive changes to the drug and alcohol regulations in this rulemaking.
DATES: Effective Date: July 13, 2009. FOR FURTHER INFORMATION CONTACT: Rafael Ramos, Office ofAerospace Medicine, Drug AbatementDivision, AAM-800, Federal Aviation Administration,

### .aoo Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-8442; facsimile (202) 267-5200; e-mail drugabatement@faa.gov.
SUPPLEMENTARY INFORMATION: Authority for Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 ofUnited States Code. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope ofthe FAA's authority.

These rules were originally promulgated under the authority described in Subtitle VII,Part A Chapter 451-Alcohol and Controlled Substances Testing. Under section 45102, the FAA is charged with prescribing regulations for air carriers and foreign air carriers to establish and to conduct preemployment, reasonable suspicion, random, and post-accident drug and alcohol testing. Some ofthese rules, for example those dealing with contract air traffic controllers, were promulgated under the FAA's general rulemaking authority in 49 U.S.C. 44701(a)(5).

This rule is intended to reorganize the requirements for drug and alcohol testing into a single part. It also clarifies therules by, for example, replacing references to appendices I and J with references to part 120. It is expected that this rule will simplify locating specific provisions and changes to those provisions for individuals and entities required to comply withthe FAA's drug and alcohol testing requirements. For this reason, the changes are within the scope ofour authority**~d** are a reasonable and necessary exercise ofour statutory obligations. Background

The regulations governing FAArequired drug and alcohol testing requirements currently are scattered throughout ChapterI ofTitle 14, Code ofFederal Regulations. Requirements

· for affected certificated airmen are

located in parts 61, 63, 65, and 67.

### 22650 

### Federal Register/Val. 74, No. 92/Thursday, May 14, 2009/Rules and Regulations

Requirements for affected air carriers and operators are located in parts 91, 12i and 135. Requirements for affected air traffic control facilities and air traffic controllers are includedin subpart B of part 65. Requirements for repair stations certificated under part 145, and contractors, who elect to have drug and alcohol**testin~** programs, are included in appendices I and

## Jofpart 121.

At this time, the FAA is working on a major revision ofits drug and alcohol testing regulations. Given the

·complexity ofthat revision and the time it will 

### take to complete the rulemaking process, the FAA has concluded that in the interim it makes sense to pull the existing regulations together in one place. The FAA expects that doing so will clarify the requirements for testing, and simplify locating specific provisions and changes to those provisions for individuals and entities that have drug and alcohol testing programs.

This rulemaking will gatherthe existing regulations into the new part,
remove them from their existing locations, and provide cross references inparts 91 and 135 to the new part.

Appendices I and ]themselves set forth the requirements for drug and alcohol testing programs. Some provisions inthe currentregulations in appendices I and

### Jare duplicative. For example, the definitions inthe appendices are mostly verbatim duplications. In addition, some ofthe terms defined inthe appendices I and 

## Jare used inparts 121 and 135. Because the drug and alcohol tes_ting provisions of 121 and 135 are being moved to new part 120, it makes sense to move those definitions up to subpart A ofnew part 120. We are therefore including all the definitions in section 120.7 ofsubpart 

### A.The FAA has begun moving away from using the separate terms "antidrug program" and "alcohol misuse preventionprogram" in favor-of "drug testing program" and "alcohol testing program" where appropriate. For example, inthis rulemaking, we use the term "drug testing program" instead of "antidrug program" in § 120.101 and "alcohol testing program" instead of "alcohol misuse prevention program" in § 120.21(a). However, the Operations Specifications A449 relating to drug and alcohol testing is still titled ''Antidrug and Alcohol Misuse Prevention Program Operations Specifications".

The language in the rules governing the requirements for part 119 certificate holders to conduct drug and alcohol testing is mostly identical for both 121 and 135 operations. There is some language that is unique to operations

. under part 135. To limit duplication and the potential for confusionrelated to having multiple regulations dealing with the same requirements, the FAA is combining the drug and alcohol testing requirements in currentparts 121 and 135 rather than having separate part 120 subparts for 121 or 135. Provisions unique to operations conducted under part 135 are placed at the end of relevant sections. Organization ofNewPart 120

The following table shows the derivation ofthe regulations contained in this"final rule:

.Final Rule part 120 section or paragraph Based in whole or in part on 14 CFR parts 61, 63, 65, 121, and 135 sections or paragraphs
120.11 Refusal to submit to a drug or alcohol test by a part 61 certificate holder. 120.13 Refusal to submit to a drug or alcohol test by a part 63 certificate holder. 120.15 Refusal to submit to a drug or alcohol test by a part 65 certifi61.14 Refusal to submit to a drug or alcohol test.
63.12b Refusal to submit to a drug or alcohol test.
65.23 Refusal to submit to a drug or alcohol test. cate holder. 120.17 Use of prohibited drugs

...................,......................................... Subpart C 120.19 Misuse of alcohol

..................................................... Subpart C 120.21 Testing for alcohol

.................................................... 65.46 Use of prohibited drugs. 65.46CI Misuse of alcohol. 65.46b Testing for alcohol. 120.31 Prohibited drugs

......................................................................... 121.429 and 135.353 Prohibited drugs. 120.33 Use of prohibited drugs

.................................:

........................... 120.35 Testing for prohibited drugs

.............................................,......... Subpart D 120.37 Misuse of alcohol

....................................,................ 121.455 and 135.249 Use of prohibited dr\JgS. 121.457 and 135.251 Testing for prohibited drugs. 121.458 and 135.253 Misuse of alcohol. Subpart D 120.39 Testing for alcohol

.................................................... 121.459 and 135.255 Testing for alcohol. Part 120 subpart E

.................................:

.............:

................................. Part 121 appendix I. Part 120 subpart F

.........................................:

....................................... Part 121 appendix J.

Regulatory Evaluation, Regulatory

. commerce ofthe United States. In Flexibility Determination, International developing U.S. standards, this Trade Trade Analysis, and Unfunded Actrequires agencies to consider Mandates Assessment international standards and, where

Changes to Federal regulations must appropriate, that theybe the basis of undergo several economic analyses. U.S. standards. Fourth, the Unfunded First, Executive Order 12866 directs that Mandates Reform Act of 1995 (Pub. L. each Federal agency shall propose or

. 104-4) requires agencies to prepare a adopt a regulation onlyupon a reasoned written assessment ofthe costs, benefits, determination that thebenefits ofthe and other effects ofproposed or final intendedregulationjustify its costs. rules that include a Federal mandate Second, the Regulatory Flexibility Act likelyto result in the expenditureby of 1980 (Pub. L. 96-354) requires State, local, ortribal governments, inthe agencies to analyze the· economic aggregate, orbythe private sector, of impact ofregulatory changes on small $100 million or more annually (adjusted entities. Third, the Trade Agreements for inflation withbase year of 1995). Act (Pub. L. 96-39) prohibits agencies In conductingthese analyses, FAA from setting standards that create has determined this rule-(1) Has unnecessary obstacles to the foreign

. benefits which dojustify its costs, is not a significantregulatory action as defined inthe Executive Order and is not significant as defined in DOT's Regulatory Policies and Procedures; (2) will not have a significant impact on a substantial number ofsmall entities; (3) will have no effect onbarriers to internationaltrade; and (4) does not impose an unfunded mandate on state, local, ortribal goverhments, or onthe private'sector.

·Department ofTransportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review ofregulations. Ifthe expected cost impact is so minimal that
a proposed or final rule does not warrant a full evaluation, this order permits that a statementto that effect

### Federal Register/Vol. 74, No. 92/Thursday, May 14, 2009/Rules and Regulations 

### 22651

and the basis for it be included in the preamble ifa full regulatory evaluation ofthe cost andbenefits is notprepared. Such a determination has been made for

. this final rule. The reasoningfor this determination follows: The FAA is not making any substantive changes to the drug and alcohol regulations inthis rulemaking. This action amends the FAA's drug and alcohol regulations to place them in a newpart. This rule imposes no costs and provides no accrual ofbenefits; and therefore, this rule will have no economic impact. Regulatory Flexibility Determination

The Regulatory FlexibilityAct of 1980 (RFA) establishes "as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective oftherule and ofapplicable statutes, to fit regulatory and informational requirements to the scale ofthe business, organizations, and governmentaljurisdictions subject to regulation." To achieve thatprinciple, the RFA requires agencies to solicit and considerflexible regulatory proposals and to explain the rationale for their actions. The RFA covers a widerange of small entities, including small businesses, not-for-profit organizations and small governmentaljurisdictions.

Agencies mustperform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number ofsmall entities. Ifthe agencydetermines that it will, the agency must prepare a regulatory flexibility analysis as described inthe Act.

However, ifan agency determines that·
a proposed orfinal rule is not expected

. to have a significant economic impact

on a .substantial number ofsmall entities, section 605(b) ofthe 1980 RFA provides that the head ofthe agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement · providing the factual basis for this

· determination, and the reasoning should be clear.

This rule imposes no costs and provides no accrual ofbenefits; and therefore, this rule will have no economic impact. Tllis action amends

· the FAA's drug and alcohol regulations to place them in a newpart. The FAA is not making any substantive changes to the drug and alcohol regulations in this rulemaking. Therefore, as the Acting FAA Administrator, I .certify that this rule will not have a significant economic impact on a substantial number ofsmall entities. International Trade Analysis The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended bythe Uruguay Round Agreements Act (Pub

. L. 103-465), prohibits Federal agencies from establishing standards or engaging inrelated activities that create unnecessary obstacles to the foreign
commerce ofthe United States. Pursuantto these Acts, the establishment ofstandards is not considered an unnecessary obstacle to the foreign commerce ofthe United States, so long as the standardhas a legitimate domestic objective, such as the protection ofsafety, 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 theybe the basis for U.S. standards. The FAA has assessed the potential effect ofthis final rule and determined that it will have only a domestic impact and therefore will not create unnecessary obstacles to the foreign commerce ofthe United States. UnfundedMandates Determination

Title II ofthe Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires eachFederal agency to prepare a written statement assessing the effects ofany 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 yearby State, local, and tribal governments, inthe aggregate, orby the private sector; such a mandate is deemed to be a "significantregulatory action." The FAA currently uses an inflation-adjusted value of$136.1 million in lieu of$100 million.

This final rule does not contain such
a mandate. Therequirements ofTitle II do not apply. ':EnVironmental Analysis

FAA Order 1050.1E identifies FAA actionsthat are categorically excluded from preparation ofan environmental assessment orenvironmental impact statementunder the National Environmental PolicyAct inthe absence ofextraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 307(k) and involves no extraordinary circumstances. Regulations That Significantly Affect Energy Supply, Distribution, orUse

The FAA has analyzed this FinalRule under Executive Order 132i1,Actions

.Concerning Regulations that Significantly Affect Energy Supply, DistributioJ?., or Use (May 18, 2001). We have determined that it is not a "significant energy action" under the executive order because it is not·a "significantregulatory action" under Executive Order 12866, and it is not likely to have a significant adverse effect
on the supply, distribution, or use of energy. Executive Order 1;1132, Federalism

The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. We determined that this action will not have a substantial direct effect on the States, or the relationship betweenthe Federal Government and the States, or on the distribution ofpower and responsibilities among the various levels ofgovernment, and, therefore, does not have federalism implications. InternationalCivil Aviation ·**Organ~ation** (ICAO) and Joint Aviation Regulations ·

Inkeeping with U.S. obligations underthe Convention on International Civil Aviation, it is FAA policy to comply with ICAO Standards and Recommended Practices to the maximum extentpracticable. The FAA has determined that this final rule does notconflict with any international agreement ofthe United States. PaperworkReduction Act

Information collectionrequirements associated with the final rule have been approved previouslyby the Office of Management and Budget (OMI;I) under the provisions ofthe Paperwork ReductionAct of 1995 (44 U.S.C. 3507(d)) and have been assigned OMB

. Control Numbers 2105-0529, 2120- 0535,2120-0685,2120-0689. Good Cause Justification for Adoption WithoutPriorNotice

We find good cause exists under 5 U.S.C. 553(b)(B) and (d)(3) to implement this final rule immediately without prior notice and comment. This rule merely reorganizes existing regulations governing drug and alcohol testing into their ownpart and makes clarifying changes to the.existing parts ofthe rules necessitated by the reorganization. Proprietary or Confidential Business Information

. Do not file inthe docket information that you consider to be proprietary or confidential business information. Send
or deliverthis information directly to· the person identifiedinthe FOR FURTHER INFORMATION CONTACT section ofthis document. You must mark the information that you consider proprietary or confidential. Ifyou send

### 22652 Federal Register/Vel. 74, No. 92/Thursday, May 14, 2009/Rules and Regulations

the information on a disk or CD-ROM, mark the outside ofthe disk or CD-ROM and also identify electronically within the disk or CD-ROM the specific information that is proprietary or confidential.

Under§ 11.35(b), when we are aware· ofproprietaryinformation filed with a comment, we do notplace it in the docket. We hold itin a separate file to which the public does not have access, and place a note in the docket that we have received it. 

### Ifwe receive a request to examine or copy this information, we treat it as any other request under the ·Freedom ofInformation Act (5 U.S.C. 552). We process such a request under the DOTprocedures found in 49 CFR part 7. Availability ofRulemakingDocuments

You can get an electronic copy of rulemaking documents using the Internet by1. Searchingthe Federal eRulemaking Portal 

### (http://www.regulations.gov);

2. Visiting the FAA's Regulations and Policies Web page at 

### http:// www.faa.gov/regulation _policies/; or 3. Accessing the Government Printing Office's Web page at 

### http:// www.gpoaccess.gov/fr/index.html.

You can also get a copyby sending a request to the Federal Aviation Administration, Office ofRulemaking, ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the amendment number or docket number ofthis rulemaking.

Anyone is able to search the electronic form ofall comments received into any ofour dockets by the
name ofthe individual submitting the comment (or signing the comment, if submitted onbehalfofan association, business, labor union, etc.). You may review DOT's complete PrivacyAct statementinthe FederaiRegister published on April11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit 

### http://Docketslnfo.dot.gov. Small Business RegulatoryEnforcement Fairness Act

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to complywith small entityrequests for information or advice .about compliance with statutes and regulations within itsjurisdiction. 

### If you are a small entity and you have a question regarding this document, you may contactyour local FAA official, or the person listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning ofthe preamble. You can find out more about SBRFA onthe Internet at 

### http://www.faa.gov/ regulations _policies/rulemaking/ sbre_act/. List ofSubjects
14 CFR Part 61

Aircraft, Airmen, Alcohol abuse, Aviation safety, Drug abuse, Recreation andrecreation areas, Reporting and recordkeeping requirements, Security measures, Teachers.
14 CFR Part 63

Aircraft, Airmen, Alcohol abuse, Aviation safety, Drug abuse, Navigation (air), Reporting andrecordkeeping requirements, Security measures. 14 CFR Part 65

Air traffic controllers, Aircraft, Airmen, Airports, Alcohol abuse, Aviation safety, Drug abuse, Reporting andrecordkeeping requirements, Security measures. 14 CFR Part 91

Afghanistan, Agriculture, Air traffic control, Aircraft, Airmen, Airports, · Aviation safety, Canada, Cuba, Ethiopia, Freight, Mexico, Noise control, Political candidates, Reporting and recordkeeping requirements, Yugoslavia.
14 CFR Part 120

Alcoholism, Air carriers, Air traffic control, Airmen, Alcohol abuse, Alcohol testing, Aviation safety, Charter flights, Commercial air tour operators, Contract air traffic controllers, Drug abuse, Drug testing, Operators, Reporting and recordkeeping requirements, Safety, Safety-sensitive, Transportation.
14 CFR Part 121

Air carriers, Aircraft, Airmen, Alcohol abuse, Aviation safety, Charter flights, Drug abuse, Drug testing, Reporting and recordkeeping requirements, Safety, 'transportation. · 14 CFR Part 135

Air taxis, Aircraft, Airmen, Alcohol abuse, Aviation safety, Drug abuse, Drug testing, Reporting and recordkeeping requirements. TheFinalRule

• Inconsideration ofthe foregoing, the Federal Aviation Administration adds part 120 and amends parts 61, 63, 65, 91, 121, and 135 ofTitle 14 ofthe Code ofFederal Regulations (14 CFR parts 61, 63, 65, 91, 121, 135), as follows:
PART 51-CERTIFICATION: PILOTS, FLIGHT INSTRUCTORS, AND GROUND INSTRUCTORS

• 1. Theauthoritycitationfor part61 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701- 44703, 44707, 44709-44711, 45102-45103, 45301-45302. §61.14 [Removed and Reserved]

• 2. Section61.14 is removed and reserved.

PART 53-CERTIFICATION: FLIGHT CREWMEMBERS OTHER THAN PILOTS

• 3. Theauthoritycitationfor part 63 continues to read as follows:

Authority: 49 U.S.C. 106(g), 40113,44701- 44703,44707,44709-44711,45102-45103, 45301-45302. §63.12b [Removed and Reserved]

• 4. Section63.12b isremoved and reserved.

PART 55-CERTIFICATION: AIRMEN OTHER THAN FLIGHT CREWMEMBERS

• 5. The authoritycitationfor part 65

. continues to read as follows: Authority: 49 U.S.C. 106(g). 40113, 44701- 44703,44707,44709-44711,45102-45103, 45301-45302. §65.23 [Removed and Reserved]

• 6. Section 65.23 is removedand reserved. §65.46 [Removed and Reserved]

• 7. Section65.46 is removed and reserved. §65.46a [Removed and Reserved]

• 8. Section65.46a is removed and reserved. · §65.4Gb [Removed and Reserved]

• 9. Section 65.46b is removed and reserved.
PART 91-GENERAL OPERATING AND FLIGHT RULES

• 10. The authoritycitationfor part91 continues to read as follows:

.

Authority: 49 U.S.C. 106(g), 1155, 40103, 40113,40120,44101,44111,44701,44704, 44709,44711,44712,44715,44716,44717, 44722,46306,46315,46316,46504,46506- 46507, 47122, 47508, 47528-47531, articles 12 and 29 ofthe Convention on International Civil Aviation (61 Stat. 1180).

• 11. Section 91.147(d) is revisedto read as follows: §91.147 Passenger-carr}iing flights for compensation or hire. 

### * * 

### * * *.

(d) The Operator mustregister and implement its drug and alcohol testing programs in accordance with part 120 of this chapter. · * 

### * * 

### * 

### *

### Federal Register 

### IVol. 74, No. 92 

### IThursday, May 14, 2009 

### IRules and Regulations 

### 22653

• 12. Section91.1047(c)(3) is revised to read as follows: §91.1 047 Drug and alcohol misuse education program. * 

### * * 

### * *

(c) 

### * 

### * * (3) The degree to which the program manager's companytesting program is comparable to the federally mandated drug and alcohol testing program required under part 120 ofthis chapter regarding the information inparagraphs (c)(1) and (c)(2) ofthis section. 

### * * * * *

• 13. AddPart 120to read as follows:
PART 120-DRUG AND ALCOHOL TESTING PROGRAM Subpart A-General Sec. 120.1 Applicability. 120.3 Purpose, 120.5 Procedures. 120.7 Definitions. Subpart 8-lndividuals Certificated Onder Parts 61, 63, and 65 120.11 Refusal to submitto a drug or alcohol testby a Part 61 certificate holder. 120.13 Refusal to submit to a drug or alcohol testby a Part 63 certificate holder. 120.15 Refusal to submitto a drug or alcohol testby a Part 65 certificate holder. Subpart C-AirTraffic Controllers 120.17 Use ofprohibited drugs. 120.19 Misuse ofalcohol. 120.21 Testing for alcohol. Subpart D-Part 119 Certificate Holders Authorized To Conduct Operations Under Part 121 or Part 135 or Operators Under §91.147 of This Chapter and SafetySensitive Employees 120.31 Prohibited drugs. 120.33 Use ofprohibited drugs. 120.35 Testing for prohibited drugs. 120.37 Misuse ofalcohol. 120.39 Testing for alcohol. Subpart E-Drug Testing Program Requirements
120.101 Scope.
120.103 General.
120.105 Employees who must be tested.
120.107 Substances for which testing must·be conducted. 120.109 Types ofdrug testing required. 120.111 Administrative and other matters. 120.113 Medical Review Officer, Substance Abuse Professional, and employer responsibilities. 120.115 Employee Assistance Program (EAP). 120.117 Implementing a drug testing program. · 120.119 Annual reports. 120.121 Preemption. 120.123 Drug testing outside ofthe territory ofthe United States. 120.125 Waivers from 49 CFR 40.21. Subpart F-AicoholTesting Program Requirements 120,201 Scope. 120.203 General. 120.205 Preemption ofState and local laws. 120.207 Other requirements imposedby employers. 120.209 Requirement for notice. 120.211 Applicable Federal regulations. 120.213 Falsification. 120.215 'covered employees. 120.217 Tests required. 120.219 Handling oftest results,-record retention, and confidentiality. 120.221 Consequences for employees engaging in alcohol-related conduct. 120.223 Alcohol misuse information, training, and substance abuse · professionals.

. 120.225 How to implement an alcohol

· testing program. 120.227 Employees located outside the U.S.

Authority: 49 U.S.C. 106(g), 40101-40103, 40113,40120,41706,41721,44106,44701, 44702,44703,44709,44710,44711,45101- 45105;46105,46306. Subpart A-General § 120.1 Applicability.

Thispart applies to the following persons:

(a) All air carriers and operators certificated under part 119 ofthis chapter authorized to conduct operations under part 121 or part 135 of this chapter, all air traffic control facilities not operatedby the FAA or by
or under contractto the U.S. military; and all operators as defined in 14 CFR 91.147.

(b) All individuals who perform, either directly orby contract, a safetysensitive function listed in subpartE or subpartF ofthis part.

(c) All part 145 certificate holders who perform safety-sensitive functions and eJect to implement a drug and alcohol testing program underthis part.

(d) All contractors who elect to implement a drug and alcohol testing program under this part. §120.3 Purpose.

The purpose ofthis part is to establish
a prograin designed to help prevent accidents and injuries resulting from the
use ofprohibited drugs orthe misuse of alcohol by employees who perform safety-sensitive functions in aviation. § 120.5 Procedures.

Each employer·having a drug and alcohol testing program under this part

. must ensure that all drug arid alcohol

testing conducted pursuantto this part complies with the procedures set forth in49 CFR part40.
§ 120.7 Definitions.

For the purposes ofthis part, the following definitions apply:

(a) 

### Accidentmeans an occurrence associated with the operation ofan aircraft whichtakes place between the time any individual boards the aircraft with the intention offlight and all such individualshave disembarked, and in which any individual suffers death or serious injury, or in which the aircraft receives substantial damage.

(b) 

### Alcoholmeans the intoxicating agent in beverage alcohol, ethyl alcohol,
or other low molecular weight alcohols, including methyl or isopropyl alcohol.

(c) 

### Alcoholconcentration (or content)
means the alcohol in a volume ofbreath expressed interms ofgrams of alcohol ·per 210 liters ofbreath as indicatedby
an evidential breath test under subpart F ofthis part.

(d) 

### Alcoholuse means the consumption of ariy beverage, mixture,
or preparation, including any medication, containing alcohol.

(e) 

### Contractoris an individual or companythat performs a safety-

. sensitive function by contract for an employer or another contractor.

(t) 

### Covered employeemeans an individual who performs, either directly
orby contract, a safety-sensitive function listed in §§ 120.105 and 120.215 for an employer (as defined in paragraph (i) ofthis section). For purposes ofpre-employmenttesting only, the term "covered employee" includes an individual applying to perform a safety-sensitive function.

(g) 

### DOTagencymeans an agency (or· "operating administration") ofthe United States Department of Transportationadministering regulations requiring drug testing (14 CFR part 61 et al.; 46 CFR part 16; 49 CFR parts 199, 219, and 382) in accordance with 49 CFR part40.

(h) 

### Employee is an individual who is hired, either directly or by contract, to perform a safety-sensitive function for
an employer, as defined in paragraph (i) ofthis section. An employee is also an individual who transfers into a position to perform a safety-sensitive function for
an employer.

(i) 

### Employeris a part 119 certificate holder with authorityto operate under parts 121 and/or 135 ofthis chapter, an operator as defined in§ 91.147 ofthis chapter, or an air traffic control facility not operatedby the FAA orby or under contract to the U.S. Military. An employer mayuse a contract employee who is not included under that employer's FAA-mandated drugtesting

### 22654 

### Federal 

### Register/Val. 74, No. 92/Thursday, May 14, 2009/Rules and Regulations

program to perform a safety-sensitive function only ifthat contract employee is included under the contractor's FAAmandated drug testing program and is performing a safety-sensitive function
onbehalfofthat contractor (i.e., within the scope ofemployment with the contractor.)

(j) 

### Hire means retaining an individual for a safety-sensitive function as a paid · employee, as a volunteer, or through barter or other form ofcompensation.

(k) 

### Performing (a safety-sensitive function): an employee is considered to be performing a safety-sensitive function during any period in whichhe
or she is actually performing, ready to perform, or immediately available to perform such function.

.

(l) 

### Positive ratefor random drug testing means the number ofverified positive results for random drug tests conducted under subpartE ofthis part, plus the number ofrefusals ofrandom drug tests required by subpartE ofthis part, divided bythe total number of random drug testresults (i.e., positives, negatives, andrefusals) under subpartE ofthis part.

. · .

. (m) 

### Prohibited drug means marijuana, cocaine, opiates, phencyclidine (PCP), and amphetamines, as specified in49 · CFR40.85.

(n) 

### Refusal to submit to alcohol test
means that a covered employee has engaged in conduct includingbut not· limited to that described in 49 CFR 40.261, or has failed to remainreadily available for post-accidenttesting as required by subpartF ofthis part.

to) 

### Refusal to submit to drug test
means that an employee engages in conductincludingbut not limited to that described in 49 CFR 40.191.

(p) 

### Safety-sensitivefun'ction means a function listed in§§ 120.105 and 120.215.

(q) 

### Verified negative drug testresult
means a drug test result from an HHScertified laboratory that has undergone review by an MRO arid has been determined bythe MRO to be a negative result.

(r) 

### Verifiedpositive drug test result
means a drug test result from an HHScertified laboratory thathas undergone

.review by an MRO and has been determined bythe MRO to be a positive result.

.

(s) 

### Violation ratefor random alcohol testingmeans the number of0.04, and ·above, random alcohol confirmation.test results conductedunder subpart F of this part, plus the number ofrefusals of random alcohol tests requiredby subpart F ofthis part, dividedby the total number ofrandom alcohol screening tests (including refusals) conductedunder subpart F ofthis part. Subpart 8-lndividuals Certificated Under Parts 61, 63, and 65
§ 120.11 Refusal to submit to a drug or alcohol test by a Part 61 certificate holder.

(a) This section applies to all individuals who hold a certificate under part 61 ofthis chapter and who are subject to drug and alcohol testing under this part. ·

(b) Refusal bythe holder ofa certificate issued.under part 61 ofthis chapterto take a drug or alcohol test required under the provisions ofthis part is grounds for:

(1) Denial ofan application for any certificate, rating, or authorization issuedunder part 61 ofthis chapter for
a period ofup to 1 year after the date ofsuch refusal; and

(2) Suspension or revocation ofany certificate, rating, or authorization issuedunder part 61 ofthis chapter. §120.13 Refusal to submit to a drug or alcohol test by a Part 63 certificate holder.

(a) This section applies to all individuals who hold a certificate under part 63 ofthis chapter and who are subject to drug and alcohol testing under this part.

(b) Refusal by the holder ofa certificate issuedunder part 63 ofthis chapterto take a drug or alcohol test required underthe provisions ofthis partis grounds for:

(1) Denial ofan application for any certificate, rating, or authorization issued under part 63 ofthis chapter for
a period ofup to 1 year after the date ofsuchrefusal; and

(2) Suspension orrevocation ofany certificate, rating, or authorization issuedunder part 63 ofthis chapter.
§ 120.15 Refusal to submit to a drug or alcohol test by a Part 65 certificate holder

..

(a) This section applies to all individuals who hold a certificate under part 65 ofthis chapter and who are subjectto drug and alcohol testing under this part.

(b) Refusal bythe holder ofa certificate issued under part 65 ofthis chapterto take a drug or alcohol test required under the provisions ofthis partis grounds for:

(1) Denial ofan application for any certificate, rating, or authorization issued under part 65 ofthis chapter for
a period ofup to 1 year after the date ofsuchrefusal; and ·

·(2) Suspension orrevocation ofany certificate, rating, or authorization issuedunder part 65 ofthis chapter. Subpart c-AirTraffic Controllers
§ 120.17 Use of prohibited drugs.

(a) Each employer shall provide each employee performing a function listed in subpartE ofthis part, and his or her supervisor, with the training specified intha,t subpart. No employer may use any contractor to perform an air traffic control function unless that contractor provides each ofits employees performing that function for the employer, andhis orher supervisor, with the training specified in subpart E ofthis part.

(b) No employer may knowingly use any individualto perform, nor may any individual perform for an employer, either directly orby contract, any air traffic control function while that individual has a prohibited drug, as defined in subpartE ofthis part, in his
or her system.

(c) No employer shall knowingly use any individual to perform, nor may any individual perform for an employer, either directly or by contract, any air traffic control function ifthe individual has a verified positive drug testresult

. on, or has refused to submitto, a drug

.test required by subpartE ofthis part and the individual has not met the requirements ofsubpartE ofthis part for returning to the performance ofsafetysensitive duties.·

(d) Each employer shall test each of its employees who perform any air traffic control function in accordance with subpart E ofthis part. No employer mayuse any contractor to perform any air traffic control function unless that contractor tests each employee performing such a function for the employer in accordance with subpartE ofthis part. §120.19 Misuse of alcohol

. .

(a) This section applies to covered employees who perform air traffic control duties directly or by contract for
an employer that is an air traffic control facility not operated by the FAA or the US military.

-

(b) 

### Alcohol concentration. No covered employee shall report for duty or remain
on duty requiringthe performance of safety-sensitive functions whilehaving
an alcohol concentration of0.04 or greater. No employerhaving actualknowledge that an employee has an alcohol concentration of0.04 or greater shall permitthe employee to perform or continue to perform safety-sensitive functions.

(c) 

### On-duty use. No covered employee shall use alcohol while performing

. safety-sensitive functions. No employer having actual knowledge that a covered employee is using alcohol while performing safety-sensitive functions shallpermitthe employee to perform or continue to perform safety-sensitive functions.

### Federal 

### Register/Val. 74, No. 92/Thursday, May 14, 2009/Rules and Regulations 22655

(d) 

### Pre-duty use. No covered employee shallperform air traffic control duties within 8 hours after using alcohol. No employer having actual knowledge that such an employee has used alcohol within 8 hours shall permit the employee to perform or continue to perform air traffic control duties.

(e) 

### Usefollowing an accident. No covered employee who has actual knowledge ofan accident involving an aircraft for whichhe or she performed
a safety-sensitive function at or nearthe time ofthe accident shall use alcohol for 8 hours following the accident, unless he or she has been given a post-accident test under subpartF ofthis part or the employer has determined thatthe employee's performance could not have contributed to the accident.

(f) 

### Refusal to submit to a required alcohol test. A covered employee may notrefuse to submit to any alcohol test required under subpartF ofthis part. An employer may not permit an employee who refuses to submitto such
a test to perform or continue to perform safety-sensitive functions. §120.21 Testing for alcohol.

(a) Each air traffic control facility not operated by the FAA orthe U.S. military must establish an alcohol testing program in accordance withthe provisions ofsubpart F ofthis part.

(b) No employer shall use any individual who meets the definition of covered employee in subpartA ofthis partto perform a safety-sensitive function listed in subpartF ofthis part unless that individual is subject to testing for alcohol misuse in accordance with the provisions ofthat subpart. Subpart 0-Part 119 Certificate Holders Authorized To Conduct Operations under Part 121 or Part 135 or Operators Under § 91.147 of This Chapter and Safety-Sensitive Employees
§ 120.31 Prohibited drugs.

(a) Each certificate holder or operator shall provide each employee performing
a function listed in subpartE ofthis part, and his or her supervisor, with the training specified in that subpart.

(b) No certificate holder or operator may use any contracto.r to perform a function listed in subpartE ofthis part unless that contractor provides each of its employees performingthat function for the certificate holder or operator, and his or her supervisor, with the training specified in that subpart. §120.33 Use of prohibited drugs.

(a) This section applies to individuals who perform a function listed in subpart E ofthis part for a certificate holder or operator. For the purpose ofthis section,
an individual who performssuch a function pursuant to a contract with the certificate holder or the operator.is considered to be performing that. function for the certificate holder or the operator. ·

(b) No certificate holder or operator mayknowingly use any individual to perform, nor may any.individual perform for a certificate holder or an operator, either directly or by contract, any function listed in subpart E ofthis part while that individual has a prohibited drug, as defined inthat subpart, inhis or her system.

(c) No certificate holder or operator shall knowingly use any individualto perform, nor shall any individual perform for a certificate holder or operator, either directly or by contract, any safety-sensitive function ifthat individualhas a verified positive drug test result on, orhas refused to submit to, a drug test required by subpart E of this part and the individual has not met the requirements ofthat subpart for returning to the performance ofsafetysensitive duties.
§ 120.35 Testing for prohibited drugs.

(a) Each certificate holder or operator shall test each ofits employees who perform a function listed in subpart E of this partin accordance with that subpart.

. (b) Except as provided in paragraph (c) ofthis section, no certificate holder
or operator may use any contractor to perform a function listed in subpart E of this partunless that contractor tests each employee performing such a function for the certificateholder or operatorin accordance with that subpart.

(c) Ifa certificate holder conducts an**~n-demand** operationinto an airport at which n<i maintenance providers are available that are subject to the requirements ofsubpartE ofthis part and emergency maintenance is required, the certificate holder may use · individuals not meeting the requirements ofparagraph (b) ofthis sectionto provide such emergency maintenance underboth ofthe following conditions:

(1) The certificate holder must give writtennotification ofthe emergency maintenance to the Drug Abatement Program Division, AAM-800, 800 Independence Avenue, SW.,

. Washington, DC 20591, wit4in 10 days afterbeing provided same in accordance with this paragraph. A certificate holder mustretain copies ofall such written notifications for two years. (2) The aircraft mustbereinspected by maintenance personnel who meet the requirements ofparagraph (b) ofthis section when the aircraft is next at an airport where such maintenance personnel are available.

(d) For purposes ofthis section, emergency maintenance means maintenance that-

(1) Is not scheduled and (2) Is made necessary by an aircraft condition not discovered priorto the departure for that location.
§ 120.37 Misuse of alcohol.

(a) 

### General. This section applies to covered employees who perform a · function listed in subpart F ofthis part for a certificate holder. For the purpose ofthis section, an individual who meets the definition ofcovered employee in subpart F ofthis part is considered to be performing the function for the certificate holder.

(b) 

### Alcoholconcentration. No covered employee shall report for duty orremain
on duty requiringthe performance of safety-sensitive functions while having
an alcohol concentration of0.04 or greater. No certificate holder having actual knowledge that an employee has
an alcohol concentration of0.04 or greater shall permitthe employee to perform or continue to perform safetysensitive functions.

(c) 

### On-duty use. No covered employee shall use alcohol while performing safety-sensitive functions. Nocertificate holderhaving actual knowledge that a covered employee is using alcohol while performing safety-sensitive functions shall permitthe employee to perform or continue to perform safety-

. sensitive functions.

(d) 

### Pre-duty use. (1) No covered employee shall perform flight crewmember or flight attendant duties ·within 8 hours after using alcohol. No certificate holderhaving actual knowledge that such an employee has used alcohol within 8 hours shall permitthe employee to perform or continue to perform the specified duties.

(2) No covered employee shall perform safety-sensitive duties other thanthose specified in paragraph (d)(1) ofthis section within 4 hours after using alcohol. No certificate holder having actual knowledge that such an employee has used alcohol within4 hours shall permit the employee to perform or to continue to perform safety-sensitive functions.

(e) 

### Usefollowing an accident. No covered employeewho has actual knowledge ofan accident involving an aircraft for which he or she performed
a safety-sensitive function at or near the

### 22656 Federal 

### Register/Val. 74, 

### No. 92/Thursday, May 14, 

### 2009/Rules and Regulations

time ofthe accident shall use alcohol for 8 hours following the accident, unless he or shehasb_een given a post-accident test under subpart F ofthis part,or the

.employerhas determined that the employee's performance could not have contributedto the accident.

(f) 

### Refusal to submit to a required alcohol test. A covered employee must not refuse to submitto any alcohol test required under subpart F ofthis part. A certificate holder must not permit an employee who refuses to submitto such
a test to perform or continueto perform safety-sensitive functions.
§ 120.39 Testing for alcohol.

(a) Each·certificate holder must establish an alcohol testing program in accordahce with the provisions of subpart F ofthis part.

(b) Except as provided in paragraph (c) ofthis section, no certificate holder
or operator may use any individual who meets the definition ofcovered employee in subpart A ofthis partto perform a safety-sensitive function listed in that subpart F ofthis part unless that individual is subject to testing for alcohol misuse in accordance with the provisions ofthat subpart.

(c) 

### Ifa certificate holder conducts an on-demand operationinto an airport at which no maintenance providers are available that are subject to the requirements ofsubpart F ofthis part and emergency maintenance is required, the certificate holder may use individuals not meeting the requirements ofparagraph (b) ofthis sectionto provide such emergency maintenanceunderboth ofthe following conditions:

(1) The certificate holder must give written notification ofthe emergency maintenance to the Drug Abatement Program Division, AAM-800, 800 Independence Avenue, SW., Washington, DC 20591, within 10 days afterbeingprovided same in accordance with this paragraph. A certificate holder mustretain copies ofall such written notifications for two years.

(2) The ·aircraft mustbereinspected

.by maintenance personnel who meet the requirements ofparagraph (b) ofthis section when the aircraft is next at an airport where suchmaintenance personnel are available.

(d) For purposes ofthis section, emergencymaintenance means maintenance that-

(1) Is not scheduled and (2) Is made necessaryby an aircraft condition not discovered priorto the departure for that location. Subpart E-Drug Testing Program Requirements §120.101 Scope.

This subpart contains the standards and components that mustbe included in a drug testing program required by this part. §120.103 General.

(a) 

### Purpose. Thepurpose ofthis subpart is to establish a program designed to help prevent accidents and injuries resulting from the use of prohibited drugs by employees who perform safety-sensitive functions.

(b) 

### DOTprocedures. (1) Each employer shall ensure that drug testing programs conducted pursuantto 14 CFR parts 65, 91, 121, and 135 comply with the requirements ofthis subpart and the "Procedures for Transportation Workplace DrugTesting Programs" published by the Department of Transportation (DOT) (49 CFR part40).

(2) An employer may not use or contract with any drug testing laboratory that is not certified by the Department ofHealth and Human Services (HHS) underthe National Laboratory Certification Program.

(c) 

### Employerresponsibility. As an employer, you are responsible for all actions ofyour officials, representatives, and service agents in carrying out the requirements ofthis subpart and 49 CFR part40.

(d) 

### ApplicableFederalRegulations. The following applicable regulations appear in 49 CFR or 14 CFR:

(1) 49 CFR Part40-Procedures for Transportation Workplace Drug Testing Programs

(2) 14 CFR: (i) §67.107-First-Class Airman Medical Certificate, MentaL

(ii) §67.207-Second-ClassAirman Medical Certificate, Mental.

· (iii) §67.307-Third-ClassAirman Medical Certificate, Mental.

(iv) §91.147-Passenger carrying flight for compensation orhire.

(e) Falsification. No individual may make, or cause to be made, any ofthe following:

(1) Any fraudulent or intentionally false statement in any application ofa drug testing program.

(2) Any fraudulent or intentionally false entry in anyrecord or report that is made, kept, orused to show compliance with this part.

(3) Anyreproduction.or alteration, for fraudulent purposes, ofany report or record required to be kept bythis part.
§ 120.105 Employees who must be tested.

Each employee, including any assistant, helper, or individual in a training status, who performs a safetysensitive function listed in this section directly or by contract (including by subcontract at any tier) for an employer
as defined in this subpartmustbe subject to drug testing under a drug testing program implemented in accordance with this subpart. This includes full-time, part-time, temporary, and intermittent employees regardless ofthe degree ofsupervision. The safetysensitive functions are:

(a) Flight crewmember duties. (b) Flight attendant duties. (c) Flight instruction duties. (d) Aircraft dispatcher duties. (e) Aircra"ft maintenance and preventive maintenance duties.

(f) Ground security coordinator**duties~** (g) Aviation screening duties. (h) Air traffic control duties. §120.107 Substances for which testing must be conducted.

Each employer shall test each employee who performs a safetysensitive function for evidence of marijuana, cocaine, opiates, phencyclidine (PCP), and amphetamines during each test required by§ 120.109.
§ 120.109 Types of drug testing required.

Each employe_r shall conductthe types oftesting described inthis section in accordance with the procedures set forth inthis subpart and the DOT "Procedures for Transportation · Workplace Drug Testing Programs" (49 CFR part 40).

(a) 

### Pre-employment drug testing. (1) No employer may hire any individual for a safety-sensitive function listed in § 120.105 unless the employer first conducts a pre-employmenttest and receives a verified negative drug te(';t result for that individual.

(2) No employer may allow an individual to transfer from a nimsafetysensitive to a safety-sensitive function unless the employer first conducts a · pre-employment test andreceives a verified negative drug test result for the individual.

(3) Employers must conduct another pre-employment test and receive a verified negative drug test resultbefore hiring ortransferring an individual into
a safety-sensitive function ifmore than 180 days elapse between conducting the pre-employment testrequired by paragraphs (a)(1) or (2) ofthis section and hiring ortransferring the individual into a safety-sensitive function, resulting inthat individual being brought under an FAA drug testing program.

.

( 4) Ifthe following criteria are met, an employer is permitted to conduct a pre-

### Federal Register/Val. 74, No. 92/Thursday, May 14, 2009/Rules and Reguiations 22657
employmenttest, and ifsuch a test is conducted, the employer mustreceive a negative testresultbefore putting the individual into a safety-sensitive function:

(i) The individualpreviously performed a safety-sensitive function for the employer and the employeris not required to pre-employment test the individual under paragraphs (a)(1) or (2) ofthis sectionbefore puttingthe individual to work in a safety-sensitive function;

(ii) The employer removed the individual from the employer's random testing program conducted underthis subpart for reasons otherthan a verified positive testresult on an FAA-mandated drug test or a refusal to submitto such · testing; and

(iii) The individual willbereturning to theperformance ofa safety-sensitive function.

(5) Before hiring or transferring an individual to

## a safety-sensitive function, the employer must advise each individual that the individ,ual will be required to undergo pre-employment testing inaccordance with this subpart, to determine the presence ofmarijuana, cocaine, opiates, phencyclidine (PCP), and amphetamines, or a metabolite of those drugs in the individual's system. The employer shall provide this same notification to each individualrequired by the employerto undergo preemployment testing under paragraph (a)(4) ofthis section.

.

(b) 

### Random drug testing. (1) Except as provided in paragraphs (b)(2) through (b)(4) ofthis section, the minimum annual percentage rate for random drug testing shall be 50 percent ofcovered employees.

(2) The Administrator's decision to increase or decrease the minimum annual percentage rate for random drug testing is based onthe reported positive rate for the entire industry. All information used for this determination is drawn from the statistical reports required by§ 120.119. In orderto ensure reliabilitY ofthe data, the Administrator considers the quality and completeness ofthe reported data, may obtain additional information orreports from employers, and may make appropriate modifications in calculatingthe industry positive rate. Eachyear, the Administrator will publishinthe Federal Register the minimum annual percentage rate for random drug testing ofcovered employees. The new minimum annualpercentagerate for random drug testing will be applicable starting January 1 ofthe calendaryear following publication.

(3) When the minimum annual percentage ratefor random drug testing is 50 percent, the Administrator may lower this rate to 25 percent ofall covered employees ifthe Administrator determines that the data received under the reporting requirements ofthis subpart for two consecutive calendar years indicate that the reported positive rate is less than 1.0 percent.

(4) When the minimum annual percentage rate for random drugtesting is 25 percent, and the data received under the reporting requirements ofthis subpart for-any calendar year indicate that the reported positive rate is equal to or greater than 1.0 percent, the Administrator will increase the minimum annual percentage rate for .randomdrug testing to 50 percent ofall covered employees.

(5) The selection ofemployees for random drug testing shall be made by a scientifically valid method, such as a random-number table or a computerbasedrandom numbergeneratorthatis matched with employees' Social Security numbers, payroll identification numbers, or other comparable identifying numbers. Under the selection process used, each covered employee shall have an equal chance of being tested eachtime selections are made.

(6) As an employer, youmust select and test a percentage ofemployees at least equal to the minimum annual percentage rate each year.

(i) As an employer, to determine whether you have met the minimum annual percentage rate, you must divide the number ofrandom testing results for safety-sensitive employees by the average number ofsafety-sensitive employees eligible for randomtesting.

(A) To calculate whether you have met the annual minimumpercentage rate, count all random positives, random negatives, andrandom refusals as your ;'random testing results."

.

(B) To calculate the average number of safety-sensitive employees eligible for random testing throughout the year, add the total number ofsafety-sensitive employees eligible.for testing during each random testing·period for the year anddivide that total bythe number of random testing periods. Only safetysensitive employees are to be in an employer's random testing pool, and all safety-sensitive employees mustbe in the random pool. Ifyou are an employer conducting random testing more often than once permonth 

### (e.g., you select daily, weekly, bi-weekly) you do not need to compute this total number of safety-sensitive employees more than on a once per monthbasis.

(ii) As an employer, you may use a service agent to perform random selections for you, and your safetysensitive employees may bepart ofa larger random testing pool ofsafetysensitive employees. However, you must ensure that the service agent you use is testing at the appropriate percentage established for your industry and that only safety-sensitive employees
are in the random testing pool. For example:

(A) Ifthe service agent has your employees- in a random testing pool for your company alone, you must ensure that the testing is conducted at least at the minimum annual percentage rate underthis part.

(B) Ifthe service agent has your employees in a random testing pool combined with otherFAA-regulated companies, you must ensure that the testing is conducted at least at the minimum annual percentage rate under this part.

(C) Ifthe service agent has your employees in a ra:ndom testing pool combined with otherDOT-regulated companies, you must ensure thatthe testing is conducted at least at the highest rate required for anyDOT-· regulated company inthe pool.

(7) Each employer shall ensurethat random drugtests conducted underthis subpart are unannounced and that the dates for administering random tests are spread reasonably throughout the calendaryear.

(8) Each employer shall require that each safety-sensitive employee who is notified ofselection for random drug testing proceeds to the collection site immediately; provided, however, that if the employee is performing a safetysensitive function at the time ofthe notification, the employer shall instead
ensure that the employee ceases to perform the safety-sensitive function and proceeds to the collection site as soon as possible. ·

(9) Ifa given covered employee is subject to random drug testing under the drug testing rules ofmore than one DOT agency, the employee shall be subject to random drug testing at the percentage

·rate established for the calendaryearby the DOT agencyregulating more than 50 percent ofthe employee's function. ·

(10) Ifan employer is required to conductrandom drug testing underthe

. drug testingrules ofmore than one DOT agency, the employer may-:- ·

(i) Establish separate pools for random selection, with eachpool containing the covered employees who are subject to testing at the same required rate; or

(ii) Randomly select covered employees for testing at the highest percentagerate established for tb.e calendaryearby any DOT agency to which the employeris subject. ·

### 22658 Federal Register/Val. 74, No. 92/Thursday, May 14, 2009/Rules and Regulations

(11) An employer required to conduct random drug testing under the anti-drug rules ofmore than one DOT agency shall provide each, such agency access to the employer's records ofrandom drug testing, as determined to be necessary by the agency to ensurethe employer's compliance with the rule.

(c) 

### Post-accident drug testing. Each employer shall test each employee who performs a safety-sensitive function for the presence ofmarijuana, cocaine, opiates, phencyclidine (PCP), and amphetamines, or a metabolite ofthose

· drugs in the employee's system ifthat

employee'sperformance either contributed to an accident or can notbe completely discounted as a contributing factor to the accident. The employee shall be.tested as soon as possible but not later than 3 2 hours after the accident. The decision not to administer
a test under this section mustbe based
on a determination, using the best information available at the time ofthe determination, that the employee's performance could not have contributed to the accident. The employee shall submitto post-accidenttesting under this section.

(d) 

### Drug testing basedon reasonable
cause. Each employer must test each employee who performs a safetysensitive function and who is reasonably suspected ofhaving used a prohibited drug. The decision to test mustbe based on a reasonable and articulable beliefthat the employee is using a prohibited drug onthe basis of specific contemporaneous physical,

.behavioral, orperformance indicators of probable drug use. At lE)ast two ofthe employee's supervisors, one ofwhomis trained in detection ofthe symptoms of possible drug use, must substantiate and
concur inthe decisionto test an employee who is reasonably suspected ofdrug use; except that in the case of
an employer, other than a part 121 certificate holder, who·employs 50 or fewer employees who perform safetysensitive functions, one supervisor who is trained in detection ofsymptoms of possible drug use must substantiate the decision to test an employee who is reasonably suspected ofdrug use.

(e) 

### Return to dutydrug testing. Each employer shall ensure thatbefore an individual is returned to duty to perform a safety-sensitive function after refusing to submitto a drug test · employer has received a verified negative drug test result for the individual. The test cannot occur until 'after the SAP has determined that the employee has successfully complied with the prescribed education and/or treatment.

. (f) 

### Follow-up drug testing. (1) Each employer shall implement a reasonable program ofunannounced testing ofeach individual who has·been hired to perform or who has been returned to the performance ofa safety-sensitive function after refusing to submit to a drug testrequired by this subpart or receiving a verified positive drug test result on a test conducted under this subpart.

. (2) The number and frequency ofsuch testing shall be determined by the employer's Substance Abuse

· Professional conductedin accordance with the provisions of49 CFR part 40, but shall consist ofat least six testsin the first 12 months following the employee's return to duty.

(3) The employer must direct the employee to undergo testing for alcohol in accordance with subpart F ofthis part, in addition to drugs, ifthe Substance Abuse Professional determines that alcohol testing is necessary for the particular employee. Any such alcohol testing shall be conducted in accordance with the provisions of49 CFR part 40.

(4) Follow-up testing shall not exceed 60 months after the date the individual begins to perform or returns to the performance ofa safety-sensitive function. The Substance Abuse Professional may terminate the requirement for follow-up testing at any time after the first six tests have been conducted, ifthe Substance Abuse Professional determines that such testing is no longer necessary. §120.111 Administrative and other matters.

(a) 

### MRO record retention requirements. (1) Records concerning drug tests confirmed positive by the· laboratory shallbe maintainedby the MRO for 5 years. Suchrecords include the MRO copies ofthe custody and control form, medical interviews, documentation ofthebasis for verifying
as negative testresults confirmed as positive by the laboratory, any other documentation concerning the MRO's required by this subpart or receiving a verified positive drug test result on a test conducted under this subpart the individual shall undergo a return-to- .verification process.

duty drug test. No employer shall allow
an individualrequired to undergo return-to-dutytesting to perform a safety-sensitive function unless the (2) Shouldthe employer change MRO's for any reason, the employer shall ensure that the former MRO forwards all records maintained pursuantto this rule to the newMRO within ten working days ofreceiving notice from the employer ofthe new MRO's name and address.·.

(3) Any employer obtaining MRO services by contract, including a contract through a C/TPA, shall ensure thatthe contract includes a recordkeeping provision that is consistent with this paragraph, including requirements for transferring records to a new MRO.

(b) 

### Access to records. The employer and the MRO shall permitthe

. Administrator or the Administrator's

representative to examine records required to be kept under this subpart and 49 CFR part 40. The Administrator
or the Administrator's representative may require that all records maintained by the service agent for the employer mustbe produced at the employer's place ofbusiness.

(c) 

### Release of drug testing

. information. An employer shall release informationregarding an employee's drug tt;!sting results, evaluation, or rehabilitation to a third party in accordance with 49 CFRpart 40. Except
as required by law, this subpart, or 49 CFR part 40, no employer shall release employee information.

(d) 

### Refusal to submit to testing. Each employer must notifythe FAA within 2 working days ofany employee who holds a certificate issued under part 61, part 63, or part 65 ofthis chapterwho has refused to submitto a drug test required under this subpart. Notification mustbe sentto: Federal Aviation Administration, Office ofAerospace Medicine, Drug Abatement Division (AAM-800), 800 Independence Avenue, SW., Washington, DC 20591, or by fax · to (202) 267-5200.

(e) 

### Permanent disqualificationfrom service. (1) An employee who has verified positive drug test results ontwo drug tests required by this subpart of this chapter, and conducted.after September 19, 1994, is permanently precluded from performing for an · employer the safety-sensitive duties the employee performed prior to the second drug test.

(2) An employee who has engaged in prohibited drug use during the performance ofa safety-sensitive function after September 19, 1994 is permanentlyprecluded from performing that safety-sensitive function for an employer

.

(f) 

### DOTmanageme:r:ztinformation system annualreports. Copies ofany annual reports submitted to the FAA under this subpart mustbe maintained bythe employer for a minimum of5 years.

### Federal Register/Val. 74, No. 92/Thursday, May 14, 2009/Rules and Regulations 22659

§ 120.113 Medical Review Officer, Substance Abuse Professional, and Employer Responsibilities. ·

(a) The employer shall designate or appoint a Medical Review Officer (MRO) who shall be qualified in accordance with 49 CFR part40 and shall perform the functions set forth in 49 CFR part40 and this subpart. Ifthe employer does not have a qualified individual on staffto serve as MRO, the employer may contract for the provision ofMRO services as part ofits drug testing program.

.

(b) 

### MedicalReviewOfficer (MRO). The MRO must perform the functions setforth in subpart G of49 CFR part40, and subpartE ofthis part. The MRO shall not delay verification ofthe primary_testresult following a request for a split specimen test unless such delay is based on reasons other than the fact that the split specimen test result is pending. Ifthe primarytestresult is verified as positive, actions required under this rule 

### (e.g., notification to the Federal Air Surgeon, removal from safety-sensitive position) are not stayed during the 72-hourrequest period or pending receipt ofthe split specimen testresult.

(c) 

### SubstanceAbuseProfessional (SAP). The SAP must perform the functions set forth in 49 CFR part40, subpart 0.

(d) 

### AdditionalMedicalReir.iew Officer, SubstanceAbuseProfessional, andEmployerResponsibilities Regarding 14 CFR part 67Airman Medical Certificate Holders. (1) As part ofverifying a confirmed positive test resultor refusal to submitto a test, the MRO mustask and the individual must
answer whetherhe or she holds an airman medical certificate issued under 14 CFR part 67 or would be required to hold an airman medical certificate to perform a safety-sensitive function for. the employer. Ifthe individual answers inthe affirmative to either question, in addition to notifying the employer in accordance with 49 CFR part40, the MRO must forward to the Federal Air Surgeon, at the address listed in paragraph (d)(5) ofthis section, the
name ofthe individual, along with· identifyinginformation and supporting documentation, within 2 working days after verifying a positive drug testresult
orrefusal to submitto a test.

(2) During the SAP interviewrequired for a verified positive test result or a refusal to submitto a test, the SAP must ask and the individual must answer whether he or she holds or wouldbe required to hold an airman medical certificate issued under 14 CFR part 67 to perform a safety-sensitive function for the employer. Ifthe individual answers in the affirmative, the individual must obtain an airman medical certificate issued by the Federal Air Surgeon dated after the verified positive drug test result date or refusal to test date. After the individual obtains this airman medical certificate, the SAP may recommend to the employer that the individual may be returned to a safetysensitive position. The receipt ofan airman medical certificate does not alter any obligations otherwise required by 49 CFR part 40 or this subpart.

(3) An employer must forward to the Federal Air Surg!lon within 2 working days ofreceipt, copies ofall reports. provided to the employerby a SAP regarding the following:

(i) An individual who the MRO has reported to the Federal Air Surgeon under§ 120.113 (d)(l); or

(ii) An individual who the employer has reported to the Federal Air Surgeon under§ 120.111(d).

(4) The employer must notpermit an employee who is required to hold an airman medical certificate under 14 CFR part 67 to perform a safety-sensitive duty to resume that duty until the employee has:

(i) Been issued an airman medical certificate from the Federal Air Surgeon after the date ofthe verified positive drug testresult orrefusal to test; and

(ii) Met the return to duty requirements in accordance with 49 CFRpart 40.

(5) Reports required under this section shallbe forwarded to the FederalAir Surgeon, Federal Aviation Administration, Office ofAerospace Medicine, Attn: Drug Abatement Division (AAM-800), 800 Independence Avenue, SW., Washington, DC 20591.
<, (6) MROs, SAPs, and employers who sendreports to the Federal Air Surgeon mustkeep a copy ofeachreport for 5 years. §120.115 Employee Assistance Program (EAP).

(a) The employer shall provide an EAP for employees. The employer may · establish the EAP as a part ofits internal personnel services orthe employer may contract with an entity that will provide EAP services to an employee. Each EAP must include education and training on drug use for employees and training for supervisors making determinations for testing ofemployees based on reasonable cause. · (b) 

### EAP educationprogram. (1) Each EAP education program must include at least the following elements:

(i) Display and distribution of informational material;

(ii) Display and distribution ofa community service hot-line telephone number for employee assistance; and

(iii) Display and distribution ofthe employer's policyregarding drug use in the workplace.

(2) The employer's policy shall include informationregarding the consequences under the rule ofusing drugs while performing safety-sensitive functions, receiving a verified positive drug test result, orrefusing to submitto
·adrug test required underthe rule. (c) 

### EAP trainingprogram. (1) Each employer shall implement a reasonable program ofinitial training for employees. The employee training program must include at least the following elements:

(i) The effects and consequences of drug use on individual health, safety, and work environment;

(ii) The manifestations and behavioral
cues that may indicate drug use and abuse; and

(iii) Documentation oftraining given to employees and employer's supervisory personnel.

(2) The employer's supervisory personnel who will determine when an employee is subject to testing based on reasonable cause shall receive specific training on specific, contemporaneous physical, behavioral, and performance indicators ofprobable drug use in addition to the training specified in § 120.115 (c).

(3) The employer shall ensure that supervisors who will make reasonable

. cause determinations receive at least 60 minutes ofinitial training.

(4) The employer shall implement a reasonable recurrent training program for supervisory personnel making reasonable cause determinations during subsequentyears.

(5) The employer shall identify the employee and supervisor for EAP training inthe employer's drug testing plan submitted to the FAA for approval. §120.117 Implementing a drug testing program.

(a) Each company must meet the requirements ofthis subpart

..Use the following chart to determine whether your companymust obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification or whether you mustregister with the FAA:

### 22660 Federal Register/Val. 74, No. 92/Thursday, May 14, 2009/Rules and Regulations·

If you are

... (1) A part 119 certificate holder with authority to

operate under parts 121 and/or 135. (2) A sightseeing operator as defined in

§91.147 of this chapter. (3) An air traffic control facility not operated by

the FAA or by or under contract to the U.S. Military. (4) A part 145 certificate holder who has your

own drug testing program.

.(5) A contractor who has 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 ofthis chapter, ifyou intend to begin operations as

If you

... You must

... Obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification by contacting your FAA Principal Operations Inspector. Register with the FAA by contacting the Flight Standards District Office nearest to your principal place of business. Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM-800),

800 Independence Avenue, SW., Washington, DC 20591.

Obtain an Antidrug and Alcohol Misuse Prevention 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. 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.

defined in§ 9L147 ofthis 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

You must

... Alcohol Misuse Prevention Program Operations Specification, or wl;tether you need to register with the FAA. Your employees who perform safety-sensitive functions must be tested in accordance with this subpart. The chart follows:

(1) Apply for a part 119 certificate with authority to operate under parts

121 or 135. (i) Have an Antidrug and Alcohol Misuse Prevention Program 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 defined in §91.147 of this chapter

..... (i) Register with the FAA, by contacting the Flight Standards District Office nearest to your principal place of business prior to 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. (3) Intend to begin air traffic control operations (at an air traffic control

facility not operated by the FAA or by or under contract to the U.S. military). (i) Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM--800), 800 Independence Avenue, SW., Washington, DC 20591 prior to starting operations.

(c) Ifyou are an individual or company that intends to provide safetysensitive services by contract to a part 119 certificate holder with authority to

If you

... (1) Are a part 145 certificate holder

...................

(2) Are a contractor

............................................

(d) 

### Obtaining anAntidrugand AlcoholMisuse Prevention Program Operations Specification. (1) To obtain (ii) Implement an FAA drug testing program no later than the date you start operations, and

. (iii) Meet the requirements of this subpart.

operate under parts 121 and/or 135 of this chapter, an operation as defined in § 91.147 ofthis chapter, or an air traffic**-~ontrol** facility not operated by the FAA or by or under contract to the U.S. military' use the following chart to determine what you must do ifyou opt to have your owndrug testing program.

And you opt to conduct your own drug program, you must

... (i) Have an Antidrug and Alcohol Misuse Prevention Program Operatiohs Specification or register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM-800), 800 Independence Avenue, SW., Washington, DC 20591, (ii) Implement an FAA drug testing program no later than the date you start performing safetysensitive functions for a part 119 certificate holder with authority to operate under parts 121 or 135, or operator as defined in §91.147 of this chapter, and (iii) Meet the requirements of this subpart as if you were an employer. (i) Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM--800),

BOO Independence Avenue, SW., Washington, DC 20591, (ii) Implement an FAA drug testing program no later than the date you start performing safetysensitive functions for a·part 119 certificate holder with authority to operate under parts 121 or 135, or operator as defined in §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, and (iii) Meet the requirements of this subpart as if you were an employer.

an Antidrug and AlcoholMisuse Prevention Program Operations Specification, you must contact your FAA Principal Operations Inspector or Principal Maintenance Inspector.

### Federal 

### Register/Val. 74, No. 92/Thursday, May 14, 2009/Rules and Regulations 22661

Provide him/her with the following information:

(i) Company name. (ii) Certificate number. (iii) Telephone number. · (iv) Address where your drug and alcoholtesting program records are kept.

. ·

(v) Whether you have 50 or more safety-sensitive employees, or49 or fewer safety-sensitive employees. (Part 119 certificate holders with authority to operate onlyunder part 121 ofthis chapter are notrequired to provide this information.)

(2) You must certify on yourAntidrug andAlcohol Misuse PreventionProgram

. Operations Specification issuedbyyour FAA Principal Operations Inspector or Principal Maintenance Inspector that you will comply with this part and 49 CFRpart40.

(3) You are required to obtain only
one Antidrug and Alcohol Misuse PreventionProgram Operations Specification to satisfy this requirement under this part.

.

( 4) You must update the Antidrug and Alcohol Misuse PreventionProgram Operations Specification when any changes to the information contained in the Operation Specification occur.

(e) 

### Registeringa drug andalcohol testingprogram with the FAA. (1) To register with the FAA, submitthe following information:

(i) Company name. (ii) Telephone number. (iii) Address where your drug and

. alcohol testing programrecords are kept. ·

. (iv) Type ofsafety-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 safety-sensitive employees, or 49 or fewer covered employees.

(vi) A signed statement indicating that: your companywill comply with · this part and 49 CFR part 40; and, ifyou are a contractor, you intendto provide safety-sensitive functions by contractto
a part 119 certificate holder with authority to operate under part 121 and/
or part 135 ofthis chapter, an operator
as defined in § 91.147 ofthis chapter, or an air traffic control facility not operatedby the FAA orby or under contractto the U.S. military.

(2) Send this information in the form and manner prescribed bythe Administrator, in duplicate to: The Federal Aviation Administration, Office ofAerospace Medicine, Drug Abatement Division (AAM-800), 800 Independence Avenue, SW., Washington, DC 20591.

(3) Update the registration information as changes occur. Send the · updates in duplicate to the address specified inparagraph (e)(2) ofthis section.

(4) This registration

# will satisfy the registration requirements for bothyour drug testing program under this subpart and your alcohol testing program under subpart F ofthis part. §120.119 Annual reports.

(a) Annual reports oftesting results mustbe submitted to the FAA by March 15 ofthe succeeding calendaryear for the prior calendaryear (January 1 through December 31) in accordance with the following provisions:

(1) Each part 121 certificate holder shall submit an annual report each year.

(2) Each entity conduCting a drug testing program underthis part, other than a part 121certificate holder, that has 50 or more employees performing a safety-sel).sitive function onJanuary 1 of any calendar year shall submit an annual report to the FAA for that calendaryear.

(3) The Administratorreserves the right to require that aviation employers not otherwise required to submit annual reports prepare and submit suchreports to the FAA. Employers that 

### will be required to submit annual reports under this provision willbe notified in writing by the FAA.

(b) As an employer, you must use the Management Information System (MIS) form and instructions as required by 49 CFR part 40 (at 49 CFR 40.26 and subpart H to 49 CFR part 40). You may also use the electronic version ofthe MIS form providedbyDOT. The Administrator may designate means 

### (e.g., electronic program transmitted via .the Internet) otherthan hard-copy, for MIS form submission. For information
on where to submitMIS forms and for the electronic version ofthe form, see: 

### http://www.faa.gov/about/office_org/ headquarters_offices/avsloffices/aam/ drug alcohol/.

· (cfA service agent may prepare the MIS report onbehalfofan employer. However, a company official 

### (e.g., Designated Employer Representative as defined in49 CFR part40) must certify the accuracy and completeness ofthe MIS report, no matter who prepares it.

. § 120.121 Preemption.

(a) The issuance of i4 CFR parts 65, 91, 121, and 135 bythe FAA preempts any State or local law, rule, regulation, order, or standard covering the subject matter of 14 CFR parts 65, 91, 121, and 135, includingbutnot limited to, drug testing ofaviation personnel performing safety-sensitive functions.

(b) The issuance of 14 CFR parts 65, 91, 121, and 135 does not preempt provisions of state criminal law that impose sanctions for reckless conduct of
an individual that leads to actual loss of life, injury, or damage to property whether such provisions apply specifically to aviation employees or generally to the public. §120,123 Drug testing outside the territory of the United States.

(a) No part ofthe testing process (including specimen collection, laboratory processing, and MRO actions) shall be conducted outside the territory ofthe United States.

(1) Each employee who is assigned to perform safety-sensitive functions solely outside the territory ofthe United States shallbe removed from the random testing pool upon the inception of such assignment.

(2) Each covered employee who.is removed from the random testing pool under this section shallbe returned to the random testing pool when the employee resumes the performance of safety-sensitive functions wholly or partially within the territory ofthe United States.

. (b) The provisions ofthis subpart shall not apply to any individual who performs a function listed in § 120.105 by contract for an employer outside the territory ofthe United States.
§ 120.125 Waivers from 49 CFR 40.21.

An employer subject to this part may petitionthe Drug AbatementDivision, Office ofAerospace Medicine, for a waiver allowing the employer to stand down an employee following a report.of
a laboratory confirmed positive drug test
or refusal, pending the outcome ofthe · verification process.

(a) Each petition for a waiver mustbe inwriting and include substantial facts and·justification to supportthe waiver. Each petition must satisfythe substantive requirements for obtaining a waiver, as provided in49 CFR 40.21.

(b) Each petition for a waiver mustbe submitted to the Federal Aviation Administration, Office ofAerospace Medicine, Drug Abatement Division (AAM-800), 800 Independence Avenue, SW., Washington, DC 20591.

(c) The Administrator may grant a waiver subjectto 49 CFR 40.21(d). Subpart F-Aicohol Testing Program Requirements
§ 120.201 Scope.

This subpart contains the standards and components that mustbe included

### 22662 

### Federal 

### Register/Val. 74, No. 92/Thursday, May 14, 2009/Rules and Regulations

in an alcohol testing program required by this part.
§ 120.203 General.

(a) 

### Purpose. The purpose ofthis subpart is to establish programs designed to help prevent accidents and injuries resulting from the misuse of alcohol by employees who perform safety-sensitive functions in aviation.

(b) 

### Alcoholtestingprocedures. Each employer shall ensure that all alcohol testing conducted pursuant to this · subpart complies with the procedures set forth in 49 CFR part40. The provisions of49 CFR part40 that address alcohol testing are made applicable to employers by this subpart.

(c) 

### Employerresponsibility. As an employer, you are responsible for all actions ofyour officials, representatives, and service agents in carrying out the requirements ofthe DOT agency regulations.·
§ 120.205 Preemption of State and local laws.

(a) Except as provided in paragraph

. (a)(2) ofthis section, these regulations preempt any State or local law, rule, regulation, or order to the extent that:

(1) Compliance withboth the State or local requirement and this subpart is not possible; or

(2) Compliance with the State or local requirementis an obstacle to the accomplishment and execution ofany requirement inthis subpart.

(b) The alcohol testing requirements ofthis title shall notbe construed to preemptprovisions ofState criminal lawthat impose sanctions for reckless conduct leading to actual loss oflife, injury, or damage to property, whether the provisions apply specifically to transportationemployees or employers
orto the general public.
§ 120.207 Other requirements imposed by employers.

Except as expressly providedinthese alcohol testing requirements, nothing in this subpart shall be construedto affect the authority ofemployers, or the rights ofemployees, withrespect to the use or possession ofalcohol, including any authority and rights withrespect to

· alcohol testing and rehabilitation.

§ 120.209 Requirement for notice.

Before performing an alcohol test under this subpart, each employer shall notify a covered employee that the alcohol test is required bythis subpart. No employer shall falsely represent that
a test is administered under this subpart. § 120.211 Applicable Federal regulations. Thefollowing applicable regulations appear in 49 CFR and 14 CFR:

(a) 49 CFR Part 40-Procedures for TransportationWorkplace Drug Testing Programs

(b) 14 CFR: (1) §67.107-First-Class Airman Medical Certificate, Mental.

(2) §67.207-Second-Class Airman Medical Certificate, Mental.

(3) §67.307-Third-Class Airman Medical Certificate, Mental.

(4) §91.147-Passengercarrying flights for compensation or hire.
§ 120.213 Falsification.

No individual may make, or cause to be made, any ofthe following:

(a) Any.fraudulent or intentionally

. false statement in any application ofan alcohol testing program.

(b) Any fraudulent or intentionally false entry in any record orreportthat is made, kept, or used to show compliance with this subpart.

(c) Any reproduction or alteration, for fraudulent purposes, ofanyreport or record required to be keptbythis subpart. §120.215 Covered employees.

(a) Each employee, including any assistant, helper, orindividual in a training status, who performs a safetysensitive function listed inthis section directly or by contract (including by subcontract at any tier) for an employer · as defined in this subpart mustbe subject to alcohol testing under an alcohol testing program implemented in accordance with this subpart. This includes full-time, part-time, temporary, and intermittent employees regardless ofthe degree ofsupervision. The safetysensitive functions are: ·

(1) Flight crewmember duties.**~** (2) Flight attendant duties. (3) Flight instruction duties. (4) Aircraft dispatcher duties. (5) Aircraft maintenance orpreventive maintenance duties.

(6) Ground security coordinator duties.

(7) Aviation screening duties. (8) Air traffic control duties. (b) Each employer must identify any employee who is subject to the alcohol testingregulations ofmore than one DOT agency. Prior to conducting any alcohol test on a covered employee subjectto the alcohol testing regulations ofmore than one DOT agency, the employer must determine which DOT

.agency authorizes or requires the test. §120.217 Tests required.

(a) 

### Pre-employment alcohol testing. As an employer, you may, but are not required to; conductpre-employment alcohol testing under this subpart. Ifyou choose to conduct pre-employment alcohol testing, youmust comply with the following requirements:

(1) You must conduct a preemployment alcohol testbefore the first performance ofsafety-sensitive functions by every covered employee (whether a new employee or someone who has transferred to·a. position involving the performance ofsafetysensitive functions).

(2) You must treat all safety-sensitive employees performing safety-sensitive functions the same for the purpo[;e of pre-employment alcohol testing (i.e., you must not test some covered employees and not others).

(3) You must conductthe preemployment tests after making a contingent offer ofemployment or transfer, subject to the employee passing the pre-employment alcohol test.

(4) You must conduct all preemployment alcohol tests using the alcohol testing procedures of49 CFR part40.

(5) You must not allow a covered employee to begin performing safetysensitive functions unless the result of the employee's test indicates an alcohol concentration ofless than 0.04. Ifa preemploymenttest result under this paragraph indicates an alcohol concentration of0.02 or greaterbut less than 0.04, the provisions of§ 120.221(£) apply.

(b) 

### Post-accident alcohol testing. (1) As soon as practicable following an accident, eachemployer shalltest each surviving covered employee for alcohol ifthat employee's performance of a · safety-sensitive function either contributed to the accident or cannotbe completely discounted as a contributing factor to the accident. The decision not to administer a test under this section shallbe based onthe employer's determination, using thebest available information at the time ofthe determination, that the covered employee's performance could not have contributed to the accident.

(2i Ifa testrequired by this section is not administered within 2 hours following the accident, the employer shall prepare and maintain onfile a record stating the reasons the test was not promptly administered. Ifa test required by this section is not administered within 8 hours following the accident, the employer shall cease · attempts to administer an alcohol test and shall prepare and maintain the
same record. Records shallbe submitted to the FAA uponrequest ofthe Administrator or his or her designee.

### Federal Register/Vol. 74, No. 92/Thursday, May 14, 2009/Rules and Regulations 22663

(3) A covered employee who is subject to post-accident testing shall remain readily available for suchtesting
or may be deemed by the employer to

·have refused to submitto testing. Nothing inthis section shall be construed to require the delay of necessary .medical attention for injured people following an accident or to prohibit a covered employee from leaving the scene ofan accident for the period necessary to obtain assistance in respondingto the accident or to obtain necessary emergency medical care.

(c) 

### Random alcohol testing. (1) Except
as provided in paragraphs (c)(2) through (c)(4) ofthis section, the minimum annual percentage rate for random alcohol testing will be 25 percent ofthe· covered.emiJloyees.

(2) The Administrator's decision to increase or decrease the minimum

.. annual percentage rate for random alcohol testing is based on the violation rate for the entire industry. All informationused for this determination is drawn from MIS reports required by this subpart. In order to ensure reliability ofthe data, the Administrator considers the quality and completeness ofthe reported data, may obtain additional information orreports from employers, and may make appropriate modifications in calculating the industry violation rate. Each year, the Administrator will publish inthe Federal Register the minimum annual percentage rate for random alcohol

. testing ofcovered employees. The new minimum annual percentagerate for random alcohol testing 

### will be applicable starting January 1 ofthe calendar year following publication.

· (3)(i) When the minimum annual percentage rate for random alcohol testing is 25 percent or more, the Administrator may lower this rate to 10 percent ofall covered employees ifthe Administrator determines that the data received under the reporting requirements ofthis subpart for two consecutive calendar years indicate that the violation rate is less than 0.5 percent.

(ii) When the minimum annual percentage rate for random alcohol testing is 50 percent, the Administrator may lowerthis rate to 25 percent ofall covered employees ifthe Administrator determines that the data received under the reporting requirements ofthis subpart for two consecutive calendar years indicate that the violation rate is less than 1.0 percentbut equal to or ·greaterthan 0.5 percent. (4)(i) When the minimum annual percentage rate for raq.dom alcohol testing is 10·percent, and the data received under the reporting requirements ofthis subpart for·that calendar year indicate that the violation rate is equal to or greaterthan 0.5 percentbut less than 1.0 percent, the Administrator will increase the minimum annual percentage rate for random alcohol testing to 25 percent of all covered employees.

.

(ii) When the minimum annual percentage rate for random alcohol testing is 25 percent or less, and the data received under the reporting requirements ofthis subpart for that calendar year indicate that the violation rate is equal to or greaterthan 1.0 percent, the Administrator will increase the minimum annual percentage rate for random alcohol testing to 50 percent of all covered employees.

. (5) The selection ofemployees for random alcohol testing shall be made by
a scientifically valid method, such as a random-number table or a computerbasedrandom number generator that i:s matched with employees' Social Security nurribers, payroll identification numbers, or other comparable identifying_numbers. Under the selectionprocess used, .each covered employee shall have an equal chance of being tested eachtime selections are made.

(6) As an employer, you must select and test a percentage ofemployees at least equal to the minimum annual percentage rate each year.

(i) As an employer, to determine whether you have met the minimum

· annual percentage rate, you must divide

the number ofrandom alcohol screening test results for safety-sensitive employees bythe average number of

. safety-sensitive employees eligible for random testing. ·

(A) To calculate whether you have met the annual minimum percentage rate, count all random screening test ..results below 0.02 breath alcohol concentration, random screening test results of0.02 orgreater breath alcohol concentration, andrandom refusals as your "random alcohol screening test results."

(B) To calculate the average number of safety-sensitive employees eligible for random testing throughout th.e year, add the total number ofsafety-sensitive employees eligible for testing during each random testing period for the year and divide that total bythe number of random testing periods. Only safetysensitive employees are to be in an employer's random testing pool, and all safety-sensitive employees mustbe in the random pool..Ifyou are .an employer conducting random testing more often than once per month 

### (e.g., you select daily, weekly, bi-weekly) you do not need to compute this total number of safety-sensitive employees more than on a once per monthbasis.

(ii) As an employer, you may use a service agent to perform random selections for you, and your safetysensitive employees may be part ofa larger random testing pool ofsafetysensitive employees. However, you must ensure that the service agent you use is testing at the appropriate percentage established for your industry and that only safety-sensitive employees
are inthe random testing pool. For example:

(A) Ifthe service agent has your employees in a random testing pool for your company alone, you must ensure that the testing is conducted at least at the minimum annual percentage rate under this part.

· (B) Ifthe service agent has your employees in a random testing pool combined with other FAA-regulated companies, you must ensure that the testing is conducted at least at the minimum annual percentage rate under this fart.

(C Ifthe service agent has your employees in a random testing pool combined with other DOT-regulated companies, you must ensure that the testing is conducted at least at the highest rate required for any DOTregulated company in the pool.

(7) Each employer shall ensure that random alcohol tests conductedunder this subpart are unannounced and that the dates for administering random tests
are spreadreasonably throughoutthe calendaryear.

(8) Each employer shall requfre that each covered employee who is notified ofselection for random testing proceed.s to the testing site immediately; provided, however, that ifthe employee is performing a safety-sensitive function at the time ofthe notification, the employer shall instead ensure that the employee ceases to perform the safetysensitive function and proceeds to the testing site as soon as possible.

(9) A Covered employee shall only be randomlytested while the employee is performing safety-sensitive functions; justbefore the employee is to perform · safety-sensitive functions; orjust after the employee has ceased performing such functions.

(10) If.a given covered employee is subject to random alcohol testing under the alcohol testing rules ofmore than
one DOT agency, the employee shallbe subject to random alcohol testing at the percentage rate established for the calendar yearby the DOT agency regulating more than 50 percent ofthe employee's functions. ·

(11) Ifan employer is required to conductrandom alcohol testing under

### 22664 

### Federa.I Register IVol. 74, No. 92 

### IThursday, May 14, 2009 

### IRules and Regulations

the alcohol testing rules ofmore than
one DOT agency, the employer may-

(i) Establish separate pools for random selection, with each pool containing the covered employees who are subject to testing at the same required rate; or

(ii) Randomly select such employees for testing at the highest"percentage rate established for the calendaryear by any DOT agency to which the employer is subject.

(d) 

### Reasonable suspicion alcohol testing. (1) An employer shall require a covered employee to submitto an alcohol test when the employerhas reasonable suspicion to believe that the employee has violated the alcohol misuse prohibitions in§§ 120.19 or 120.37.

(2) The employer's determination that reasonable suspicion exists to require the covered employee to undergo an alcohol test shallbe based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech orbody odors ofthe employee. The required observations shall be made by a supervisor who is trained in detectingthe symptoms of alcohol misuse. The supervisor who makes the determination thatreasonable suspicion exists shall not conductthe · breath alcohol test onthat employee.

(3) Alcohol testing is authorized by this section only ifthe observations required by paragraph (d)(2) ofthis section are made during, just preceding,
orjust after the period ofthe work day that the covered employee is required to be incompliance with this rule. An employee maybe directed bythe employer to undergo reasonable suspiciontesting for alcohol only while the employee is performing safetysensitivefunctions; just before the employee is to perform safety-sensitive functions; orjust after the employee has ceasedperforming such functions.

(4)(i) 

### Ifa testrequired bythis section is not administered within 2 hours following the determinationmade under paragraph (d)(2) ofthis section, the employer shall prepare and maintain on file a record stating the reasons the test
was not promptly administered. 

### Ifa test required by this section is not administered within 8 hours following the determination made under paragraph (d)(2) ofthis section, the employer shall cease attempts to administer an alcohol test and shall state inthe record th!l reasons for not administering the test.

(ii) Notwithstanding the absence ofa reasonable suspicion alcohol testunder this section, no covered employee shall report for duty or remain on duty requiring the performance ofsafetysensitive functions while the employee is under the influence of, or impaired by, alcohol, as shownbythe behavioral, speech, or performance indicators of alcohol misuse, nor shall an employer permitthe covered employee to perform
or continue to perform safety-sensitive functions until:

(A) An alcohol test is administered and the employee's alcohol concentration measures less than 0.02;
or(B) The start ofthe employee's next regularly scheduled duty period, butnot less than 8 hours following the determination made under paragraph (d)(2) ofthis section that there is reasonable suspicion that the employee · has violated the alcohol misuse provisions in§§ 120.19 or 120.37.

(iii) No employer shall take any action under this subpart against a covered employee based solely onthe employee's behavior and appearance in the absence ofan alcohol test. This does notprohibit an employer with authority independent ofthis subpart from taking any actiori otherwise consistent with law.

(e) 

### Return-to-dutyalcohol testing. Each employer shall ensure thatbefore
a covered employee returns to duty requiring the performance ofa safetysensitive function after engaging ill conductprohibited in§§ 120.19 or 120.37 the employee shall undergo a return-to-duty alcohol testwith a result indicating ail alcohol concentration of less than 0.02. The test cannot occur until after the SAP has determined that the employee has**succ~ssfully** complied with the prescribed education and/or treatment. · ·

(f) 

### Follow-up alcohol testing. (1) Each employer shall ensure that the employee who engages in conductprohibitedby §§ 120.19 or 120.37, is subject to unannounced follow:up alcohol testing
.as directed by a SAP.

.

(2) The number and frequency ofsuch testing shallbe determinedby the employer's SAP, but must consist ofat least six tests inthe first 12 months following the employee's returnto duty.

(3) The employer must direct the employee to undergo testing for drugs in accordance with subpartE ofthis part, in addition to alcohol, ifthe SAP determines that drug testing is necessary for the particular employee. Any such drug testing shall be conducted in accordance with the provisions of49 CFRpart 40.

(4) Follow-up testing shall not exceed 60 months after the date the individual begins to perform, or returns to the performance of, a safety-sensitive function. The SAP may terminate the requirement for follow-up testing at any time after the first six tests have been conducted; ifthe SAP determines that such testing is no longer necessary.

(5) A covered employee shall be tested for alcohol under this section only while the employee is performing safety-sensitive functions, just before the employee is to perform safetysensitive functions, orjust after the employee has ceased performing such functions.



### (g) 

### Retesting of covered employees with an alcohol concentration of 0.02 or greater butless than 0.04. Each employer shall retest a covered employee to ensure compliance with the provisions of§ 120.221(f) 

### Ifthe employer chooses to permit the employee to perform a safety-sensitive function within 8 hours following the· administration ofan alcohol test indicating an alcohol concentration of 0.02 or greater but less than 0.04. · § 120.219 Handling of test results, record retention, and confidentiality.

(a) 

### Retention of records. (1) 

### General requirement. In addition to the records required to be maintained under 49 CFR part 40, employers must maintain

·records required by this subpart in a secure location with controlled access

..

(2) 

### Period of retention. (i) 

### Five years; (A) Copies ofany annual reports submitted to the FAA under this subpart for a minimum of5 years.

(B) Records ofnotifications to the Federal Air Surgeon ofrefusals to submit to testing and violations ofthe alcohol misuse prohibitions in this chapterby covered employees who hold medical certificates issued underpart 67 ofthis chapter.

.

(C) Documents presentedby a covered employee to dispute the result ofan alcohol test administered under this subpart.

(D) Records related to otherviolations of§§ 120.19 or 120.37.

(ii) 

### Two years. Records related to the testing process and trainingrequired under this subpart.

(A) Documents related to the random selection process.

(B) Documents generated in connection with decisions to administer reasonable suspicion alcohol tests.

(C) Documents generated in connectionwith decisions onpostaccident tests·.

(D) Documents verifying existence of
a medical explanation ofthe inability of
a covered employee to provide adequate breath for testing.

(E) Materials on alcohol misuse awareness, including a copy ofthe employer's policy onalcohol misuse. ·

(F) Documentation ofcompliance withtherequirements of§ 120.223(a).

### Federal Register/Val. 74, No. 92 /Thursday, May 14, 2009/Rules and Regulations 

### 22665

(G) Documentation oftraining providedto supervisors for the purpose ofqualifying the supervisors to make a determination concerning the need for alcohol testing based onreasonable suspicion.

(H) Certification that any training conducted under this subpart complies with the requirements for suchtraining.

(b) 

### Annualreports. (1) Annual reports ofalcohol testing program results must be submitted to the FAA by March 15 ofthe succeeding calendar year for the prior calendaryear Uanuary 1 through December 31) in accordance with the provisions ofparagraphs (b)(1)(i) through (Iii) ofthis section.

(i) Each part 121 certificate holder shall submit an annual report each year.

(ii) Each entity conducting an alcohol testing program under this part, other than a part 121 certificate holder, that has 50 or more employees performing a safety-sensitive function onJanuary 1 of any calendaryear shall submit an annual report to the FAA for that calendar year.

(iii) The Administratorreserves the right to require that aviation employers not otherwise required to submit annual reports prepare and submit suchreports to the FAA. Employers that willbe required to submit annualreports under this provision willbe notified in writing bythe FAA.

.

(2) As an employer, you must use the Management Information System (MIS) form and instructions as required by 49 CFR part40 (at 49 CFR 40.26 and appendix H to 49 CFR part40). You may also use the electronicversion ofthe MIS form providedby the DOT. The Administrator may designate means 

### (e.g., electronic program transmitted via the Internet) other than hard-copy, for MIS form submission. For information
on where to submitMIS forms and for the electronic version ofthe form, see: 

### http:/ /www.faa.gov/about/office

_org/ headquarters_ offices/avsloffices/aam/ drug alcohol/. ·

(3fA service agent may prepare the MIS report onbehaJfofan employer. However, a company official 

### (e.g., Designated Employer Representative as defined in49 CFR part40) must certify the accuracy and completeness ofthe MIS report, no matter whoprepares it.

(c) 

### Access to records andfacilities. (1) Except as required by law or expressly authorized orrequired inthis subpart, no employer shall release covered employee informationthat is contained inrecords required to be maintained under this subpart.

(2) A covered employee is entitled, upon writtenrequest, to obtain copies of any records pertaining to the employee's
use ofalcohol, including any records pertaining to his or her alcohol tests in accordance with 49 CFR part40. The employer shall promptlyprovide the records requestedby the employee

.. Access to an employee's records shall notbe contingent upon payment for records other than those specifically requested.

(3) Each employer shall permit access to all facilities utilized in complying with therequirements ofthis subpart to the Secretary ofTransportation or any DOT agency withregulatory authority
over the employer or any ofits covered· employees. §120.221 Consequences for employees engaging in alcohol-related conduct.

(a) 

### Removalfrom safety-sensitive function. (1) Except as provided in 49 CFR part40, no covered employee shall perform safety-sensitive functions·ifthe employee has engaged in conduct prohibited by§§ 120.19 or 120.37, or an alcohol misuse rule ofanother DOT agency.

(2) No employer shall permit any covered employee to perform safetysensitive functions ifthe employer has determined that the employee has violated this section.

(b) 

### Permanent disqualificationfrom service. An employee who violates §§ 120.19 or 120.37, orwho engages in alcohol use that violates another alcohol misuse provision of§§ 120.19 or 120.37 and who had previously engaged in alcohol use that violated the provisions of§§ 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.

(c) 

### Notice to the FederalAirSurgeon. (1) An employer who determines that a covered employee who holds an airman .medical certificate issued under part 67 ofthis chapterhas engaged in alcohol
use thatviolated the alcohol misuse provisions of§§ 120.19 or 120.37 shall notify the Federal Air Surgeonwithin 2 working days.

(2) Each such employer shall forward tothe Federal AirSurgeon a copy ofthe report ofany evaluation performed under the provisions of§ 120.223(c) within 2 working days ofthe employer's receipt ofthe report.

(3) All documents mustbe sentto the Federal Air Surgeon, Federal Aviation Administration, Office ofAerospace Medicine, Attn: Drug Abatement Division (AAM-800), 800 Independence Avenue, SW., Washington, PC 20591.

(4) No covered employee who is required to hold an airman medical certificate in order to perform a safetysensitive duty mayperform that duty following a violation ofthis subpart until the covered employee obtains an airman medical certificate issuedbythe Federal Air Surgeon dated after the .alcohol testresult or refusal to test date. After the.covered employee obtains this

. airman medical certifiCate, the SAP may recommend to the employerthat the covered employee maybe returned to a safety-sensitive position. Thereceipt of
an airman medical certificate does not alter any obligations otherwise required by49 CFR part 40 orthis subpart.

(5) Once the Federal Air Surgeon has

.recommended under paragraph (c)(4) of this section that the employee be permittedto perform safety-sensitive duties, the employer cannot permitthe employee to perform those safetysensitive duties until the employer has ensured that the employee meets the return to duty requirements in

· accordance with49 CFR part 40. (d) 

### Notice of refusals. Each covered employer must notify the FAA within 2 working days ofany employee who holds a certificate issued under part 61, part 63, or part 65 ofthis chapter who has refused to submit to an alcohol test required under this subpart. Notification mustbe sent to: FederalAviation Administration, Office ofAerospace Medicine, Drug Abatement Division (AAM-800), BOO IndependenceAvenue, SW., Washington, DC 20591, orby fax to (202) 267-5200. ·

(e) 

### Required evaluation andalcohol testing. No covered employee who has engaged in conduct prohibitedby §§ 120.19 or 120.37 shall perform safetysensitive functions unless the employee has met therequirements of49 CFR part 40. No employer shall permit a covereq employee who has engaged in such conductto perform safety-sensitive functions unless the employee has met the requirements of49 CFR part40.

(f) 

### Other alcohol-related conduct. (1) No covered employee tested underthis subpart who is found to have an alcohol concentration of0.02 orgreaterbut less than 0.04 shall perform or continue to perform safety-sensitive functions for an employer, nor shall an employer permit the employee to perform or continue to perform safety-sensitive functions, until:

(i) The employee's alcohol concentration measures less than 0.02;
or(ii) The start ofthe employee's next regularly scheduled duty period, butnot less than Bhours following administration ofthe test.

(2) Except as provided in paragraph (£)(1) ofthis section, no employer shall take any action under this rule against
an employee based solely ontestresults showing an alcohol concentration less than 0.04. This does notprohibit an·

### 22666 Federal Register/Val. 74, No

.. 92/Thursday, May 14, 2009/Rules and Regulations

employer with authority independent of this rule from taking any action otherwise consistent with law.
§ 120.223 Alcohol misuse information, training, and substance abuse professionals.



### (a) Employerobligation topromulgate
apolicy on the misuse of alcohol. (1) 

### General requirements. Each employer shall provide educational materials that explain these alcohol testin.g requirements and the employer's policies and procedures withrespect to

. meeting those requirements.

. (i) The employer shall ensure that a · copy ofthese materials is distributed to each covered employee priorto the start ofalcohol testing under the employer's**FAA-m~;~ndated** alcohol testing program and to each individual subsequently hired for or transferred to a covered position.

(ii) Each employer shall provide written notice to representatives of employee organizations ofthe availability ofthis information.

(2) 

### Required content. The materials to be made available to employees shall include detailed discussion ofat least the following:

(i) The identity ofthe individual designated by the employer to answer employee qvestions about the materials.

(ii) The categories ofemployees who
are subject to the provisions ofthese alcohol testing requirements.

(i1i) Sufficient information about the safety-sensitive functions performed by those employees to make clear what period ofthe work day the covered employee is required to be in

If you are

... (1) A part 119 certificate holder with authority to

operate under parts 121 and/or 135. (2) An operator as defined in §91.147 of this

chapter. (3) An air traffic control facility noi operated by

the' FAA or by or under contract to the U.S. Military. · (4) A part 145 certificate holder who has your

own alcohol testing program.

(5) A contractor who has your own alcohol testing program.

(b) Use the following chartfor implementing an alcohol testing program ifyou are applying for a part 119 certificate with authority to operate under parts 121 and/or 135 ofthis chapter, ifyou intend to begin operations as defined in § 91.147 ofthis compliance with these alcohol testing requirements. ·

(iv) Specific information concerning employee conduct that is prohibitedby this chapter. ·

(v) The circumstances under which a covered employee will be tested for alcohol under this subpart.

(vi) The procedures that will be used to test for the presence ofalcohol, protectthe employee and the integrity ofthe breath testing process, safeguard the validity ofthe test results, and
ensure that those results are attributed to the correct employee.

(vii) The requirement that a covered employee submitto alcohol tests administered in accordance with this subpart.

(viii) An explanation ofwhat constitutes a refusal to submitto an alcohol test and the attendant consequences.

(ix) The consequences for covered employees found to have violated the prohibitions inthis chapter, including the requirement thatthe employee be removed immediatelyfrom performing safety-sensitive functions, and the process in49 CFR part 40, subpart 

### 0.

(x) The consequences for covered employees found to have an alcohol concentration of0.02 or greater but less than 0.04.

(xi) Information concerning the effects ofalcohol misuse on an.individual's health, work, and personal life; signs and symptoms ofan alcohol problem; available methods ofevaluating and resolving problems associated with the misuse ofalcohol; and intervening when an alcohol problem is suspected,

You musi

... including confrontation, referral to any available employee assistance program, and/orreferral to management.

(xii) Optional provisions. The materials supplied to covered employees may also include information on additional employer policies withrespect to the use or possession ofalcohol, including any consequences for an employee found to have a specified alcohol level, that are based onthe employer's authority independent ofthis subpart. Any such additional policies or consequences mustbe clearly and obviously described
as beingbased on independent authority.

(b) 

### Trainingfor supervisors. Each employer shall ensure that persons designated to determine whether reasonable suspicion exists to require a covered employee to undergo alcohol testing under§ 120.217(d) ofthis subpart receive at least 60 minutes of training on the physical, behavioral, speech, and performance indicators of

· probable alcohol misuse. (c) 

### Substance abuseprofessional (SAP) duties. The SAP must perform the functions set forth in 49 CFR part 40, subpart 0, and this subpart.
§ 120.225 How to implement an alcohol testing program.

(a) Each company must meet the requirements ofthis subpart. Use the following chart to determine whether your company must obtain an Antidrug and Alcohol Misuse PreventionProgram Operations Specification or whether you mustregister with the FAA:

Obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification by contacting your FAA Principal Operations Inspector. Register with the FAA, by contacting the Flight Standards District Office nearest to your prin-

.cipal place of business. Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM-800),

· 800 Independence Avenue, SW., Washington, DC 20591.

Obtain an Antidrug and Alcohol Misuse Prevention 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. 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.

chapter, or ifyou intend to begin operations as defined air traffic control operations (not operatedbythe FAA or by orunder contractto the U.S. Military). Use it to determine whether you need to have an AntidrUg and AlcohoLMisuse PreventionProgram Operations Specification, or whether you need to register with the FAA. Your employees who perform safety-sensitive duties mustbe tested in accordance with this subpart. The chart follows:

### Federal Register/Vol. 74, No. 92/Thursday, May 14, 2009/Rules and Regulations 22667

If you

... You must

... (1) Apply for a part 119 certificate with authority (i) Have an Antidrug and Alcohol Misuse Prevention Program Operations Specification,

to operate under parts 121 and/or 135. (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 defined in

§91.147 of this chapter. (i) Register with the FAA by contacting the Flight Standards District Office nearest your principal place of business prior to starting operations,

(3) Intend to begin air traffic control operations

(at an air traffic control facility not operated by the FAA or by or under contract to the U.S. military). ·

(c) 

### Ifyou are an individual or a company that intends to provide safetysensitive services by contract to a part 119 certificate holder with authority to
If you

... (1) Are a part 145 certificate holder

...................

(2) Are a contractor

............................................

(d)(1) To obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification, you must contact your FAA PrincipalOperations Inspector or Principal Maintenance Inspector. Provide him/her with the following information: (ii) Implement an FAA alcohol testing program no later than the date you start operations, and (iii) Meet the requirements of this subpart. (i) Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM-800),

800 Independence Avenue, SW., Washington, DC 20591 prior to 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.

operate under parts 121 and/or 135 of this chapter·or an operator as defined in § 91.147 ofthis chapter, use the following chart to determine whatyou must do ifyou opt to have your own alcohol testing program.

And you opt to conduct your own Alcohol Testing Program, you must

... (i) Have an Antidrug and Alcohol Misuse Prevention Program Operations Specifications or register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM-800), 800 Independence Avenue, SW., Washington, DC 20591, (ii) Implement an FAA alcohol testing program no later than the date you start performing safety-sensitive functions for a part 119 certificate holder with the authority to operate under parts 121 and/or 135, or operator as defined in §91.147 of this chapter, and (iii) Meet the requirements of this subpart as if you were an employer. (i) Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM-800),

800 Independence Avenue, SW., Washington, DC 20591, (ii) Implement an FAA alcohol testing program no later than the date you start performing safety-sensitive functions for a part 119 certificate holder with authority to operate under parts 121 and/or 135, or operator as defined in §91.147 of this chapter, and (iii) Meet the requirements of this subpart as if you were an employer.

(4) You must update the Antidrug and Alcohol Misuse Prevention Program Operations Specification when any changes to the information contained in the Operation Specification occur.

(e)(l) To register with the FAA, submit the following information:

(i) Company name. defined by§ 91.147 ofthis chapter, or an air traffic control facility not operatedby the FAA orby or under contract tq the U.S. Military.

(i) Company name.

. (ii) Certificate number. (iii) Telephone number. (iv) Address where your drug and alcohol testing programrecords are kept. (ii) Telephone number.

.,, (iii) Address where your drug and alcohol testing programrecords are kept.

(iv) Type ofsafety-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). (2) Send this information in the form. and manner prescribedbythe Administrator, in duplicate to: The Federal Aviation Administration, Office ofAerospace Medicine, Drug Abatement Division (AAM-800). 800 Independence Avenue, SW., Washington, DC 20591.

(3) Update the registration information as changes occur. Send the updates in duplicate to the address specified inparagraph (e)(2) ofthis section. (v) Whether you have 50 or more covered employees, or 49 or fewer covered employees. (Part 119 certificate holders with authority to operate only under part 121 ofthis chapter are not required toprovide this information.)

(2) You must certify on your Antidrug arid Alcohol Misuse Prevention Program OperationsSpecification, issuedby your FAA Principal Operations Inspector or Principal Maintenance Inspector, that youwill comply with this part and 49 CFRpart40.

(3) You are required to obtain only
one Antidrug and Alcohol Misuse Prevention Program Operations specification to satisfy this requirement under this part. (v) Whetheryou 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, ifyou are a contractor, you intendto provide safety-sensitive functions by contract to
a·part 119 certificate holder with authorityto operate under part 121 and/
or 135 ofthis chapter, an operator as (4) This 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. §120.227 Employees located outside the 

### u.s.

(a) No covered employee shallbe tested for alcohol misuse while located outside the territory ofthe United States.

(1) Each covered employee who is assigned to perform safety-sensitive functions solely outside the territory of

### 22668 Federal Register/Vol. 74, No. 92/Thursday, May 14, 2009/Rules ap.d Regulations

the United States shall be removed from

.the random testing pool upon the inceftion of such assignment.

(2 Each covered employee who is removed from the random testing pool under this paragraph shall be returned to the· random testing pool whenthe employee resumes the performance of safety-sensitive functions wholly or partially within the territory ofthe United States.

(b) The provisions ofthis subpart · shall not apply to any person who performs a safety-sensitive function by contract for an employer outside the territory ofthe United States.
PART 121-0PERATING REQUIREMENTS: DOMESTIC, Fl.AG, AND SUPPLEMENTAL OPERATIONS

• 14. The authority citationfor part 121 continues to read as follows:

Authority: 49 U.S.C. 106(g), 1153, 40101, 40102,40103,40113,41721,44105,44106, 44111, 44701-44717, 44722, 44901, 44903; 44904,44906,44912,44914,44936,44938, 46103, 46105.
§ 121.429 [Removed and Reserved]

• 15. Section 1,21.429 isremoved and reserved. · § 121.455 [Removed and Reserved]

• 16. Section 121.455 isremoved and reserved.
§ 121.457 [Removed and Reserved]

• 17. Section 121.457 is removed and reserved.
§ 121.458 [Removed and Reserved]

• 18. Section 121.458 is removed and reserved.
§ 121.459 [Removed and Reserved]

• 19. Section 121.459 is removed and reserved. Appendix I to Part 121 [Removed and Reserved]

• 20. AppendixI is removedand reserved. Appendix J to Part 121 [Removed and Reserved]

• 21. Appendix]isremovedand. reserved.
PART 135-0PERATING REQUIREMENTS: COMMUTER AND ON DEMAND OPERATIONS AND RULES GOVERNING PERSONS ON BOARD SUCH AIRCRAFT

• 22. The authority citation for part 135 continues to read as follows:

Authority: 49 U.S.C. 106(g), 41706, 40113, 44701-44702,44705,44709,44711-44713, 44715-44717,44722,45101-45105. • 23. Section 135.1(a)(5) is revisedto read as follows: § 

### 135.1 Applicability

.(a) * * * (5) Nonstop CommercialAir Tour flights conductedfor compensation or hire in accordance with§ 119.1(e)(2) of this chapterthatbegin and end at the
same airport and are conducted within 

## a25-statute-mile radius ofthat airport; provided further that these operations must comply only with the drug and

. alcohol testing requirements in §§ 120.31, 120.33, 120.35, 120.37; and 135.39 ofthis chapter; and with the provisions ofpart 136, subpart A, and §91.147 ofthis chapterby September 11,2007. 

### * * * * 

### *
§ 135.249 [Removed and Reserved]

• 24. Section 135.249 is removed and reserved.
§ 135.251 [Removed and Reserved]

• 25. Section 135.251 is removed and reserved.
§ 135.253 [Removed and Reserved]

• 26. Section 135.253 is removed and reserved.
§ 135.255 [Removed and Reserved]

• 27. Section 135.255 is removed and reserved.
§ 135.353 [Removed and Reserved]

• 28. Section 135.353 is removed and reserved.

Issued in Washington, DC, on May 7, 2009. Lynne A. Osmus, ActingAdministrator. [FR Doc. E9-11289 Filed 5-13-09; 8:45 am]
BILLING CODE 491D-13-P

" DEPARTMENT OF TRANSPORTATION

14 CFR Part 97 [Docket No. 30666; Arndt. No. 3321]
Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments

AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.

S.UMMARY: This rule establishes, amends, suspends, or revokes Standard InstrumentApproach Procedures (SlAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because ofthe adoptiqn ofnew or revised criteria, or because ofchanges occurring inthe National Airspace System, such as the commissioning of
new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient
use ofthe navigable airspace andto promote safe flight operations under instrument flight rules at the affected airports.
DATES: This rule is effective May 14,

· 2009. The compliance date for each

SlAP, associated TakeoffMinimums, and ODP is specified inthe amendatory provisions.

The inc"orporation byreference of certain publications listed inthe regulations is approved by the Director ofthe Federal Register as ofMay 14, 2009.
ADDRESSES: Availability ofmatter incorporatedbyreference inthe · amendment is as follows:



### ForExamination1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591;

2. The FAA Regional Office ofthe region in which the affected airport is located; ·

3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,

4. The National Archives andRecords Administration (NARA). For information on the availability ofthis material at NARA, call 202-741-6030,
or go to:



### http:/ lwww.archives.gov/ federal _register/ code_of Jederal _regulations/ ibr locations.html. ·

Availability-All SlAPs are available online free ofcharge. Visit 

### nfdc.faci.gov to register. Additionally, individual SlAP and TakeoffMinimums and ODP copies maybe obtained from:

1. FAA Public Inquiry Center (APA200), FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; or

2. The FAA Regional Office ofthe region in which the affected airport is located.
FOR FURTHER INFORMATION CONTACT:

·Harry

### J. Hodges, Flight Procedure Standards Branch (AFS-420) Flight Technologies andPrograms Division, Flight Standards Service, Federal A,viation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 

### (MailAddress:P.O. Box 25082 Oklahoma City, OK 73125) 

### telephone: (405) 954-4164.

# ..

,, 

# Westiawe

2006 WL 3792063 (D.O.T.)

2006 WL 3792063 (D.O.T.)

Fran DeJoseph

Southern Jet Management, LLC

1800 Airport Road

Kennesaw, Georgia 30144

DearMr. DeJoseph: Department ofTransportation (D.

### 0.T.) Federal Aviation Administration

*1 Legal Interpretation

2006 

## EXHIBIT 

# A-1)- Page 1

In a letter dated October 24, 2005, you expressed disagreement with a letter ofinterpretation that you received from

our Drug Abatement Division and asked us three additional questions. We have noted your disagreement and now
answer your three additional questions in the sequence you presented. · 

### I. Ifan [sic] FAR 135 aircraft had maintenance done by a mechanic that does not meet the Drug and Alcohol Requirements ofFAR 135 and 121, what does the FAR 135 Certificate holder have to do before he can use that aircraft on a FAR 135charter?

Our answer: An aircraft that is listed on the operation specifications ofa certificate holder conducting flights under Title 14, Code ofFederal Regulations (14 CFR) Part 135 must be maintained under the certificate holder's maintenance program. That such an aircraft is owned and periodically operated under 14 CFRpart 91 by a person other than the certificate holder does not lessen**tba~** 

### obligation in any way. 14 .CFR § 

### 135.251(c) contemp.Jates a situation in which an aircraft requires emergency maintenance and there are no maintenance providers subject to appendix I of part 121 at the airport. In 

### that case, the certificate holder must provide written notification ofthe emergency maintenance within 10 days while retaining copies for at leasttwo years. In

### addition, the certificate holdermust also have the aircraft inspected when it is next at 

## an airport where drug-tested personnel are available. Other than in the circumstance described in section 135.251(c), maintenance by persons not tested pursuant to appendix I ofpart 121 is prohibited on aircraft operated imder part 135.

Ifnon-emergency maintenance was performed on the aircraft by a person not meeting the drug and alcohol testing requirements, it would be a violation ofthe regulations, which could result in penalties andrequire corrective actions, including the possible removal ofthe aircraft from the certificate holder's operations specifications. (See: 14 CFR § 119.51) The primary maintenance inspector orprincipal operations inspectororboth, as applicable, would determine whatremedial actions wouldbe necessary in order for the airplane to returnto part 135 service. Remedial actions may include a full conformity inspection. 2. In 

### the response from the Drug Abatement Division, they state, "The requirement to have an FAA-mandated drug and alcohol testing program applies to any individual who performs safety-sensitive functions on Parts 121,

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

### 2006 WL 3792063 (D.O.T.) Page2

135, and 135.1(c) aircraft". Doesthatmean apilotwho flies anaircraftfor an ownerunderFAR91 has to meetthe Drug and Alcohol Requirements ofFAR 135 or 121 ifthat same aircraft is used FAR 135 charter? Ifnot, why?

Our answer: 

### Ifthatpilotto whomyourefer also operates oris available to operate any 

### flights underpart 135 on behalf ofthe certificate holderthen he or she must meet the applicable drug and alcohol testing requirements. (See: 14 CFR 

### §§ 135.249-135.255). However, ifthat pilot performs no safety-sensitive functions for the certificate holder in any capacity whatsoever then the drug and alcohol testing requirements do not apply.

*2 We take this opportunity to point out that the term "FAR 135 aircraft" is a misnomer as you use it above and may reflect a misunderstanding. We appreciate the opportunity to clarify. Ifan aircraft is listed on the operation specifi- · cations ofa part 135 certificate holder, certain part 135 requirements, such as compliance with approved maintenance programs, apply continuously without interruption.

On the other hand, the applicability ofcertain portions ofpart 135 regulations to a specific flight operation, such as those found in subparts B and D, depends upon whether a flight is conducted for compensation or hire. Ifa specific flight is not conducted for compensation or hire, (e.g. a ferry flight, positioning flight, or a flight conducted by the

owner ofthe aircraft for his orher private use) then the flight may be conducted pursuant to part 91 operating rules.

We add another clarification. Ifthe owner ofthe aircraft elects to use the provisions ofsection 135.1(c) to operate underpart 91 operatingrules, he or she wouldberequiredto comply with the drug and alcohol testingrequirements of sections 135.249-135.255 and also section 135.353. 3. Ifan [sic] FAR 135 aircraft had maintenance done by a mechanic that does not meet the drug and alcohol requirements ofFAR 135 and 121, is that FAR 135 operator in violation ofFAR 135 and 121 ifhe does not fly? If yes, why? ·

Absent the circumstances described in section 135.25l{c), any such maintenance would be a violation. The violation would occur at the time such maintenance is performed and whether the aircraft is flown is notrelevant.

We trustthat this answers your questions. Thank youfor your inquiry.

Sincerely,

Rebecca MacPherson Assistant ChiefCounsel, Regulations

2006 WL 3792063 (D.O.T.)

END OF DOCUMENT



### © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

## EXHIBIT 

# i A,- I

# 4**~,;:;.-~**
10/01/07 2150.38

Chapter 7. Sanction Guidance Policies



## 1. Purpose. This chapter provides the FAA'spolicies for determining an appropriate sanction

once FAA enforcement personnel decide that legal enforcement action is appropriate. This chapter contains the general policy the FAA intends to apply in selecting the types ofsanctions, ranges of sanctions within those types, and specific sanction amounts to impose in legal enforcement actions for typical violations ofthe FAA's statute and regulations. This guidance covers the parameters both for selecting sanctions and for modifying sanctions during the informal procedures. The guidance in this chapter is applied in adjudications under 49 U.S.C. §§ 

### 44106, 44709, 44710, 44726, 44924, 46111, 46301, and 70115. Hazardous materials sanction guidance and policies are addressed in Appendix C.

2. General Guidelines.

a. Certificate Suspension Action and Civil PenaltyAction: Sanctions for Punitive and DeterrentPurposes.
(1) General. Ifa certificate holder improperly exercises the privileges ofa certificate, a natural consequence ofthat act is to lose the privileges for a period oftime commensurate with the violation. Balanced against this principle, however, the FAA considers the adverse impact that a certificate suspension could have on the public. Thus; the agency generally suspends the certificates ofindividual certificate holders for violations. However, the FAAusually takes civil penalty action against air carriers and airports because such actions do not disrupt service, which may adversely affect the public. Nevertheless, when the FAA determines that safety considerations warrant it, the agency will suspend the certificate ofanytype ofcertificate holder. In no case will the FAAtake civil penalty action alone when remedial legal action is necessary
or appropriate.
(2) Use ofbothpunitive certificate action and civil penalty action for the same violations. TheFAA generally does not take civil penalty action and punitive certificate action (that is, certificate suspension for a fixed period oftime) against a certificate holder for the same conduct. Ifunusual**circums~ces** 

### warrant deviation fromthis practice, legal counsel consult with the Assistant ChiefCounsel for Enforcement (AGC-300) before initiating the actions.

(3) Change in type ofproposed sanction. The initial enforcement action reflects the agency's best assessment ofthe appropriate sanction for the violations alleged. After initiating the action, legal counsel ordinarily does not change the type ofsanction unless additional facts or circumstances are presentedto the FAAthat warrant a change. Ifthe action was coordinated wider chapter 6, paragraph 3, with AGC-300 before initiation, then legal counsel coordinates any change in the type ofsanction with AGC-300 before making the change.

b. Legal Sanctions for Remedial Purposes.
(1) Indefinite certificate suspension pending compliance or demonstration of qualification. Suspension action is appropriate where there is a need temporarily to



### 7-1

### 10/01/07 2150.38

suspend the privileges ofthe certificate orrating pending demonstration ofqualification or compliance with statutory or regulatory.requirements. FAA generally uses remedial suspension when an individual does not voluntarily surrender his orher certificate pending reexamination. See 

### chapter 5. ·
(2) Certificate revocation

- general. The FAA revokes a certificate when a certificate holder lacks the qualifications to hold the certificate. The certificate holder's continued exercise ofthe privileges ofthe certificate in such circumstances would be.contrary to safety in air

commerce or air transportation and the public interest. Revocation is appropriate whenever a certificate holder's conduct demonstrates a lack ofthe technical proficiency or a lack ofthe degree ofcare,judgment, or responsibility, required ofthe holder ofsuch a certificate. Orders of revocation are issued on an emergency basis when the certificate holder lacks qualification and is · reasonably able as a practical matter to exercise the privileges ofthe certificate. Legal counsel does not allege a lack ofqualifications to avoid dismissal ofcharges under 49 C.F.R. 

### § 821.33, theNTSB's stale complaint rule.

(3) Certificate revocation

- individuals. The FAA generally revokes an individual's certificate orrating whenever he or she demonstrates a lack ofwillingness or ability to comply consistently with statutory orregulatory requirements. A lack ofwillingness or ability to comply maybe demonstrated by such things as repeated or deliberate violations orby violations that involve grossly careless orreckless conduct. Even a single violation may be sufficient to warrant

a conclusion an individual iacks qualifications. The FAA ordinarily revokes all certificates ofa person who commits a violation involving intentional falsification.
(4) Certificate revocation- entities. Revocation is normally appropriate when a certificate-holding entity deliberately or flagrantly violates the statute orregulations or falsifies records. Revocation also is generally appropriate when the certificate holder has committed the

same or similarviolations in the recent pastdemonstrating a lack ofqualification, or when the

.certificate holder no longer has, and does not obtain in a reasonable time, the personnel or equipment to conduct its operation in full compliance with statutory and regulatory requirements.
(5) Mandatory certificate revocation. Under 49 U.S.C. 

### § 44710, the FAA is required to revoke the certificates ofanyainnanwho has been convicted ofviolating certain**fe~eralor** 

### state statutes relating to a controlled substance when an airplane was used in the commission ofthe offense and the airman served as an airman, orwas aboard the aircraft, in connection with commission ofthe offense orthe facilitation ofthe commission ofthe offense. Even when there has been no conviction, revocation·is required when an airman has knowingly carried out an activity punishable under these criminal statutes. The Administrator may waive the revocationif

·a law enforcement officerrequests the waiver and the Administrator decides the waiver will facilitate law enforcementpurposes. See 

### 49 U.S.C. 

### § 44710(f). Under 49 U.S.C. 

### § 44106, the FAA also mustrevoke the registration certificate ofany airplane used in the commission ofsuch

an offense when the use was permitted bythe owner ofthe aircraft with knowledge that it would be used for such purpose. Under 49 U.S.C. 

### §44726, the FAA must revoke the certificates ofany certificate holder or an individual who has a controlling or ownership interest in the holder who

was convicted ofa violation offederal law relating to the installation, production, repair, or sale ofa counterfeit or fraudulently-represented aviation part ormaterial 

## otknowingly, andwith the



### 7-2

### 10/01/07 2150.38

intent to defraud, carried out or facilitated an activity punishable under such a law. The Administrator may waive that sanction to facilitate law enforcementpurposes or amend, rather than revoke, a certificate under certain circumstances. 

### See 49 U.S.C. §§ 44726(f) and (g).

(6) Mandatory certificate action for security concerns. Under 49 U.S.C. § 46111, the Administrator is required to issue

# an order amending, modifying, suspending, or revoking any FAA-issued certificate iftheAdministrator is notified by the Under Secretary ofBorder and Transportation Security (BTS) ofthe Department ofHomeland Security (DHS) thatthe certificate holder poses, or is suspected ofposing, a risk ofair piracy or terrorism or a threatto airline orpassenger safety. Under 49 U.S.C. § 44924, the Administrator is required, at the request ofthe Under Secretary ofBTS, to suspend or revoke foreign repair station certificates in connection with security audits.

3. Applicability and Exclusions. The sanction guidance table (table) in Appendix B provides types ofsanctions and general ranges ofsanction amounts for violations of49 U.S.C. subtitle VII and 14 C.F.R. parts 1-199 and 49 U.S.C. subtitle IX, chapter 701 and 14 C.F.R. chapter III. Once the agency has determined that legal enforcement action is warranted for. a violation, FAA enforcementpersonnel use the table andparagraph 4 ofthis chapter, as well as any other sanction guidance in this order, to determine a proposed sanction; The matters described in chapter 7, subparagraphs 3a.-d. are some types ofagency action that fall outside the scope of paragraph 3 and the table.

a. Decisions to Take AdministrativeAction (Warning Notices orLetters of Correction). 

### An administrative action does not constitute either a formal adjudication ofthe incident or a finding ofviolation. For that reason, FAA investigative personnel do not-propose a sanctionusing the table.

b. The FAA's Exercise ofProsecutorial Discretion. The decision whether to prosecute a particular case is based on a review ofthe evidence and relevant policy and litigation considerations. The agency exercises broad.discretion in both the initial decision to bring a legal enforcement action, and in any later determination to compromise or settle a case based on various considerations. TheFAA's discretion in these areas is absolute and presumed to be. immune frorri review. 

### Heckler,..v. Cheney, 470 U.S. 821, 831 (1985).

c. Hazardous MaterialsViolations. Actions involving violations ofthe federal hazardous materials transportation law, 49 U.S.C. chapter 51, or the Department ofTransportation's Hazardous Materials Regulations, 49 C.F.R. parts 106 through 185. Enforcement sanction guidance for these violations is found in Appendix C.

d. Violations by Members oftheU.S. Armed Forces. The FAA is required to forward reports ofthese violations to the Secretary ofthe department concerned under 49 U.S.C. 

## § 46101(b), whenever the violator is acting in the performance ofofficial duties. The FAA, · however, takes remedial action in addition to referring a report when the violator, whether ornot



### 7-3

### 10/01/07 2150.38

acting in the perfonnruice ofofficial military duties, holds an FAA certificate, and the violator's qualifications are at issue. The FAA may take punitive action against a member ofthe U.S.· Armed Forces for a violation committed when the member is notperfonning official duties.

4. Mitigating orAggravating Factors and Elements. The factors in chapter 7, subparagraphs 4.a. through m. have been developed over years ofpolicy making and case adjudication. They have proven useful and appropriate for detennining the seriousness of

# aviolation and for selecting an appropriate sanction. Elements for evaluating and weighing each factor are also described. These factors and elements provide a framework for detennining sanctions for violations specifically listed in the table as well as those not specifically listed. All the factors and elements, however, may not apply to each violation. Only those factors and elements that

are relevant to a violation are considered in determining a sanction for the violation. This list of factors and elements is not intended to be exhaustive; other factors may be relevant as well.

a. Nature ofthe Violation. Three elements define the nature ofa violation:. first, whether the violation was operational or non-operational; second, whether the violation involved careless

or reckless conduct; and third, whether the violation involved any special aggravating or mitigating factors. ·
(1) Individuals. When an individual who holds a certificate improperly exercises the privileges ofthatcertificate, the natural consequence ofthat act should be loss ofprivileges for a period oftime commensurate with the violation. The FAA, therefore, primarily uses certificate actions to enforce operational regulations against individuals who hold certificates. The potential adverse impact that certificate action may have on an individual's livelihood does not alter this principle. Non-operational violations may warrant a differenttype ofsanction.
(2) Entities. The FAA ordinarily takes civil penalty action against a certificate-holding entity (for example, an air carrier) when it determines there would be a substantial adverse impact on the public interest from disrupted service bythat certificate holder and the impact is not outweighed by safety considerations. Even when a substantial adverse impact would occur, when there is aneed to prevent continuing violations or other egregious conduct by any certificate holder, when any certificate holder lacks qualification, or there is a reasonable basis to question the qualifications ofany certificate holder, the FAA takes remedial action, for example, revocation or indefinite suspension, as necessary.
(3) Careless orreckless conduct. Violations that involve careless orreckless conduct in violation of 14 C.F.R. 

### § 91.13 may warrant more severe sanctions. Carelessness connotes conductthat falls below the standard ofcare or prudence expected ofa reasonable person, or holder ofthe relevant certificate, acting under the same or similar circumstances. Recklessness connotes conductthat demonstrates a gross, or even callous or flagrant, disregard for safety. Aircraft operationsthat do not otherwise result in a violation ofa specific regulation should be evaluated in light ofthese standards to detennine whether they constitute careless or reckless

· operations in violation of 14 C.F.R. 

### § 91.13. When a person operates an aircraft in violation ofa

specific regulation other than 14 C.F.R. 

### § 91.13, however, that violation constitutes a careless or reckless operation in and ofitself. In these cases, the misconduct may also result in a violation of 14 C.F.R. § 91.13 ifit actually or potentially endangers the lives or property ofothers.

7-4

### 10/01/07 2150.38

When calculating the amount ofsanction based on this factor, a distinction generally is drawn between instances where 14 C.P.R.§ 91.13 is an independent violation and those where it is residual to another violation. When a 14 C.P.R.§ 91.13 violation is residual only, a higher sanction generally is not warranted unless the conduct is alsoreckless.

b. Whether the Violation was Inadvertent and NotDeliberate. Ifa violation is deliberate or not inadvertent, a sanction atthe upper end ofthe range or exceeding the range for thattype ofviolation generally is appropriate. A deliberate violation generally warrants a sanction that is more severe than one that isjustnot inadvertent.
(1) Not deliberate. This element means a lack ofthe degree ofdeliberation found in intentional misconduct. Deliberate or intentional misconduct is an aggravating circumstance and includes deliberate conduct that leads to a violation as well as circumstances indicating intent to commit a violation.
(2) Inadvertence. An 

### act is inadvertent when it is the result ofboth inattention and lack ofpurposeful choice. For example, an inadvertent act occurs when a pilot flies at an incorrect altitude because he or she misread the aircraft's instruments; however, it is not an inadvertent act when a pilot flies at an incorrect altitude as a result ofchoosing not to consult the aircraft's

··instruments or choosing notto use other available means to verify altitude. The test to be applied

is whether the conduct, not the factual orlegal consequences, is inadvertent and unintended. Ferguson v. National Transportation SafetyBoard, 678 F.2d 82f, 828-829 (9th Cir. 1982).

c. CertificateHolder's Level ofExperience.
(1) Level ofexperience refers primarily to the type ofcertificate and ratings held (for**example~** 

### student, private, commercial, airline transport pilot, or certified flight instructor), arid the number ofhours flown, by the certificate holder. Certificate holders with greater levels of experience may beheld to a higher standard. Thus, for example, commercial pilots may be held to a higher standardthan private pilots and airline transport pilots may be held to an even higher standard than commercial pilots.
(2) In determining an appropriate sanction, the**~AA** 

### may consider the exte11t to which the certificate holder's action deviated from the degree ofcare and diligence normally expected ofa person with the certificate holder's level ofexperience. A significant deviation from the degree ofcare and diligence expected ofthe holder ofthat certificate may warrant a more aggravated sanction.

d. Attitude ofthe Violator.
(1) A good compliance attitude is the norm and does not warrant a reduction in sanction. A prior violation history may suggest that a person has a poor compliance disposition, which is

an aggravating factor. Furthermore, a person who commits an act or omission contrary to statutory or regulatory requirements after receiving notice through a prior administrative action

orcounselingthat such conduct is in violation ofthose requirements might well be regarded as

· having a poor compliance disposition. 

## In evaluating compliance disposition, the FAA does not



### 7-5

### 10/01/07 2150.38

view an alleged violator as having a poor attitude because the alleged violator fails to respond to

a letter ofinvestigation, chooses to be represented by counsel, or contests the violation.
(2) In assessing the attitude ofan alleged violator; the FAA may considerthe declaration ofan emergencyto air.traffic control. When an emergency is genuine and not ofthe person's

own making, the emergency is exculpatory under 14 C.F.R. 

### § 91.3(b). However, this situation is distinct from the situation where a declaration ofemergency is not exculpatory but is a factor that might be appropriate to consider in determining sanction. 

### In emergency situations, the FAA views declaring an emergency to air traffic control as a sign ofgoodjudgment and a constructive

.attitude. When an emergency is ofa person's own making, that person's declaration ofan emergency may be considered mitigating in determining the sanction to be imposed for any violations committed, in much the same way it is considered mitigating ifa person voluntarily reports a violation.

e. Degree ofHazard.
(1) The degree ofhazard may be increased as a result ofthe interplay ofthe operational environment (for example, weather conditions, congested vs. sparsely populated areas) and the nature ofthe threatto safety (to the life or property ofanother, inCluding those in the aircraft

.being operated, to other aircraft, or to persons or property onthe surface) that themisconduct presents. The safety threat is based on the reasonably foreseeable consequences ofthe · misconduct. For example, operating 500 feet below the minimum altitude poses a greater hazard than operating 100 feet below. Similarly, ifan aircraft operator fails to comply with an airworthiness directive by operating 10 hours past a required inspection, the degree ofhazard is

. probably not as great as when the aircraft is operated 100 hours beyond the.required. And it is not mitigating when a violation does not result in actual harm; that is simply fortuitous.
(2) The sanction ranges reflectthe degree ofdanger normally inherent in an average

·violation ofa regulation, without aggravating circumstances. As discussed in chapter 7,

subparagraph 5.b., an increase in the degree ofhazard may form the basis for exceeding the sanction ranges. For example, the range for an unauthorized low flight does not assume extreme departures from required altitudes, for example, flying an airplane over a crowded assembly of persons at 50 feet

f. Action Taken byEmployer or OtherAuthority. This factor ordinarily involves the following elements: whether the alleged violator's employer has taken disciplinary action and whether criminal prosecutionis involved. · (1) Employment discipline. Where the violation would normally call for a certain type ofenforcement action,·the FAAtakes that action regardless ofany action taken by the violator's ·employer. Generally, the FAA does not credit an employer's disciplinary action toward a period

ofsuspension the FAA imposes againstthe violator's certificate because ofthe different purposes ofgovernment-ordered, as contrasted with employer-ordered, actions.
(2) Criminal prosecution. When arising out ofthe same conduct, local, state, or federal prosecution does not preclude the FAA from taking appropriate remedial enforcement action; nor



## 7-6

### ·10/01/07**2150~38**



### does it preclude the FAA from taking appropriate punitive enforcement action. For cases where federal, state, or local authorities prosecute criminally, the FAA generally does take remedial enforcement action ifthat is warranted despite the criminal prosecution. However, the FAA does not generally take punitive legal enforcement action for the same conduct, unless it believes the · criminal sanctions are not sufficient to provide an adequate deterrent for future violations by the violator and others similarly situated, or when the FAAwants to establish a violation history record. Ifthe FAA decides to proceed with a punitive civil enforcement action in addition to the criminal prosecution, it generally considers the criminal penalties incurred in those proceedings

.in determining the appropriate amount ofsanction to be sought in the FAA'spunitive enforcement action.

g. Use ofa Certificate. This factor relates to the nature.or kind ofactivity or operation involved at the tiine the violation was committed. ·Whether the certificate holder was engaged in student, private, commercial, or airline activity bears on the severity ofthe sanction. Air carriers

are held to the highest standard ofcare. Likewise, personnel engaged in air transportation are held to the highest safety standard. ·

h. Violation History.
(1) A violation-free history is the expected norm, not the exception and, therefore, is not
a mitigating factor. Sanction ranges in the table generally represent the normal range ofsanction for a single, first-time, inadvertent violation. Given the expected norm, a prior violation record

can be evidence ofa poor compliance disposition or ofa pattern ofdisregard for the FAA's

. regulations, which are aggravating factors. As a result, a violation history canjustify imposing a

·. sanction at the higher end ofthe normal range or a sanction beyond the normal range. It

### might

alsojustify revocation rather than suspension ifthe pattern ofviolation reflects a lack of qualification. In addition, a violation history mightjustify a certificate suspension ifpreviously issued civil penalties have not produced the desired deterrent effect. In deciding whether a violation historyjustifies aggravating the sanction orchanging the usual type ofsanction, the FAA 

### considers the length oftimethat has elapsed between violations, whether the violations involved the same or similar regulations, and whether the violations are factually similar.
(2) The following**actiqp~** 

### constitute violation history when they involve**r~gul~tory** 

### violations and become fmal: orders ofamendment, modification, suspension, orrevocation ofan FAA certificate; orders assessing a civil penalty; findings ofviolation contained in a consent order, order ofcompliance or denial; and fmdings ofviolation made by a federal court. In addition, a party may agree as part ofa settlement that the FAA 

### may consider alleged violations

as fmdings ofviolation for future sanction determinations.

i.

### DecisionalLaw. Decisions ofthe FAA decisionmaker represent the FAA Administrator's position on issues arising in civil penalty assessment actions, including issues regarding sanctions. The policy in this order also represents the Administrator's position on sanctions in legal enforcement actions. To the extent that this document conflicts with FAA decisionmaker decisions published before this document's issuance, the sanction guidance policy in this order supersedes those decisions. However, FAA decisionmaker decisions published after



### 7-7

### 10/01/07 2150.38

the issuance ofthis document that conflict with the policy in this order supersede this document and are controlling.
j. 

### Ability to Absorb Sanction. Sanctions should be deterrent. While punitive sanctions should not be unduly harsh, theyshould be substantial enough to prevent violators from profiting from their violations, that is, the sanction should be high enough to remove any profit incentive · for violations. Penalties should never be permitted to be a cost ofdoing business. Air carriers, in particular, are required by law to have the financial wherewithal to operate according to established safety standards. While the FAA does not allow financial circumstances to excuse any violation, it does consider a carrier's size and financial strength in choosing the appropriate sanction amount. The difference in the penalties fixed in the law for large and small business

concerns recognizes this fact. A civil penalty that may be a mere cost of doing business to a major air carrier might compel a small air carrierto go out ofbusiness. Therefore, the FAA uses air carrier size as one means ofensuring a relatively equivalent deterrent effect on each air carrier that violates the same FAA regulation. The resulting classification ofair carriers by size and ranges ofcivil penalties are set forth in part one ofthe table. For all entities and individuals, the FAA considers ability to pay a civil penalty and the effect a civil penalty will have on a person's ability to continue in business to the extent it knows such information.

k. 

### Consistency ofSanction. One ofthe agency's goals is to achieve relative consistency in imposing similar sanctions for similar violations. The FAA pursues this objective to assure fairness and so the sanction's impact has an equivalent degree ofdeterrent or disciplinary value to others similarly situated. This goal maynot always be achieved, however, because ofthe inherently subjective nature ofthe exercise of judgment in setting sanctions.

I. 

### Whether the Violation was Reported Voluntarily.

. (1) The FAAhas programs thatallow persons to report voluntarily apparent violations and receive lesser enforcement action provided certain criteria are met. These programs include the aviation safety reporting program, the voluntary disclosure reporting program; and the. aviation safety action program. Besides these programs, the FAA may grant special enforcement consideration under certain circumstances to a person who, incident to his orher report of another's violations, voluntarilxdJscloses his orher own participation in the same o.r**r~lated** 

### violations. This'special enforcement consideration may range from mitigating the sanction to determining that no enforcement action is required. · (2) Ifa person is not c.overed under one ofthese programs but nonetheless voluntarily reports an apparent violation to the FAA before the FAA discovers it, takes immediate action to correct the noncompliance, and works withthe FAA on steps to preclude recurrence ofthe · apparent violation, the FAA may consider such actions in mitigating the sanction for the violation.

m. Corrective Action. The FAA considers corrective action a mitigating factor in determining sanction provided the corrective action exceeds the minimum regulatory or statutory requirements. The amount ofcredit given in setting 

# asanction depends on the extent and timing ofthe corrective action, that is, how extensive was the ·corrective action andhow quickly was it taken. Implementing new procedures that are above those required under the FAA's regulations


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### 10/01/07 2150.38

to prevent future violations ordinarily is considered a mitigating factor in determining an appropriate sanction. Corrective action taken after the alleged violator first becomes aware ofa deficiency but before FAA discovery ofthe violation ordinarily warrants greater mitigation than corrective action that is taken only after the alleged violator receives notice ofthe FAA's enforcement action. Corrective action taken by an alleged violator that simply brings that person into compliance with the statutory orregulatory requirements is not considered in mitigation of sanction. To mitigate a sanction based on such corrective action would put at an economic disadvantage competitors who have expended the resources necessary to maintain compliance.

5. Use ofthe Table ofSanctions.

a. General. Sanction determinations are not accomplished through a strict mathematical formula; rather, sanction determinations result from ajudgment ofwhere a case lies along a spectrum ofgravity. Ultimately, the circumstances ofeach case are evaluated in terms ofthe needs ofsafety and the public interest.

b. Single, First-time, Inadvertent Violations.


### (I) Part II ofthe table specifies both thenormal types ofsanction (certificate action, civil penalty action, or other type) and the normal ranges within those types the FAA ordinarily seeks to impose in a legal enforcement action fora single, first-time violation that is generally inadvertent (the table includes ranges ofsanctions for several violations thatusuallyare intentional, for example, interference with a crewmember, smoking on an aircraft). In addition, the table generallyreflects a presumption that the alleged violator wants to comply with the law and to remedy any noncompliance and that the alleged violator, therefore, has a constructive attitude.
(2) For factors b, d, or h ofparagraph 4 (that is, inadvertent and not deliberate conduct, attitude, and violation history), the FAA does not normally deviate from the ranges listed in the table solely based onthe inadvertence ofthe violation or on the alleged violator's good reputation, past public service, violation-free history, or constructive attitude. Any mitigating circumstances are to be found in the facts and circumstances ofthe violation itself.



# -

.. 

### (3) Applying ranges within a sanction type. In determining where, within each range, a sanction should be imposed, the FAA generally considers factors a, c, e, f, g, i,j, k, and m of paragraph 4 (that is, nature ofthe vioiation, level ofexperience, degree ofhazard, action by employer or other authority, use ofcertificate, decisional law, ability to absorb sanction, consistency ofthe sanction with similar cases, corrective action), to the extent they are applicable

orrelevant. Whendetermining a speCific sanction amount within a range, FAA enforcement personnel begin with an amount in the middle ofthe range and increase that amount toward the higher end ofthe range for aggravating factors or decrease that amounttoward the lower end of the range for mitigating factors.
(4) Deviating from ranges within a sanction type. The FAA might impose sanctions below the normal ranges based onjustifiable mitigation under factorsj, 

## I, and m ofparagraph4 (that is, the ability to absorb the sanction, vohintary reporting, corrective action). The FAA may



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### 10/01/07 2150.38

impose sanctions above the normal ranges whenthe following circumstances, relating to factors b, d, e, and h ofparagraph 4 are present: the violation is otherthan inadvertent4

, 

### the violator has

a violation history, the violation involves a significant degree ofhazard, orthe violator has a poor compliance disposition. The ranges also may be exceeded when the case involves multiple violations. (See chapter 7, paragraphs 6 and 7).

c. Types ofSanction.
(1) General. The FAA ordinarily does not initiate punitive civil penalty and punitive

. certificate actions (that is, fixed-period certificate suspensions) against a certificate holder for the

same offense. While· electing to impose one sanction is not a legal barto a concurrent proceeding to impose another, pursuing both actions solely for punitive purposes usually is not necessary. The FAAtakes remedial and punitive actions in the same case, however, when warranted.

(2) Selecting types ofsanctions. Except in exceptional circumstances, the FAA uses the type ofsanction recommended in the table.**Th~** 

### FAA must impose any sanction manda;fed by statute (for example, revocation under 49 U.S.C. §§ 44106(b), 44710(b), and 44726(b) unless waived by the Administrator).

6. General Guidance on MultipleActs orMultiple Violations.

a. Description ofMultiple Violations. Enforcement actions often involve multiple violations: multiple violations ofa single regulation; a single violation ofmultiple regulations;

or multiple violations ofmultiple regulations. In 

### addition, under 49 U.S.C. § 4630l(a)(2), ifa violation is a continuing one, each day the violation continues, or each flight for which the. violation was committed, constitutes a separate offense.

b. General Sanction Guidance. Multiple violations ordinarily result in high sanction amounts. Such sanction amounts ordinarily are not determined by simply adding up the individual penalties for multiple violations set forth in the table, however. Simply adding up the individual penalties for each violation could result in compounding a sanction in a disproportionately harsh manner for the conduct involved. Conversely, multiple violations may be so serious intheir consequences for safety and the public interest as to require a penalty greaterthanthe sum ofthe recommended amount ofpenalty provided for in the table for each violation

..

c. Single ActofNoncompliance Resulting in Multiple Violations. When a single instance ofnoncompliance results in multiple violations ofgeneral and specific regulations involving the same or similar conduct, the FAA ordinarily does not compoundthe sanction to reflect the amount ofsanction recommended in the table for each regulatory violation. In calculating the amount ofsanction for multiple violations, FAA enforcementpersonnel consider

4 When the violation is one that is generally inherently deliberate 

### (e.g., interference with crewmember or smoking violations), factor b. is not considered in determining whether theS!lllction should be above therange in the table

.. The ranges inthe table for such violations already have taken into consideration the inherently deliberate nature of the violation. 

### 7-10

### 10/01/07 2150.38

the totality ofcircumstances relating to the multiple violations, including the alleged violator's degree ofculpability, and whether the alleged violator had taken steps, although unsuccessful, to preventthe violations.

d. Type ofLegal EnforcementAction. Where this guidance designatesthe type oflegal enforcement action for a single violation, the FAA ordinarily selects the same type ofsanction for multiple violations ofa similar nature. The seriousness ofmultiple violations, however, may require changing what is normally a civil penalty action tQ a certificate action or, sometimes, a punitive certificate suspension to a remedial revocation action.

7. Special Considerations for Numerous Multiple Violations Resulting From an Initial Act

or Omission. To determine penalties for numerous multiple violations that result from an initial act or omission, the FAA applies the special considerations and guidance in chapter 7, subparagraphs 7.a: through e. These cases involve such a high nm11ber ofmultiple violations that ifF AA enforcement personnel were simply to add the recommended amounts ofpenalty for each flight or day that constitutes a separate violation, the resulting sanction amount could be disproportionately harsh for the misconduct involved, in an average case.

·a. DeterminingProposed Penalty. To determine an appropriate civil penalty in a case involving numerous multiple violations resulting from an initial act or omission (for example, an aircraft operated on a dozen ormore flights afterbeing improperly returned to service), FAA enforcementpersonnel:
(1) Identify each initial act or omission that caused orresulted in the multiple violations (for example, improper maintenance plus improper return to service; failure to maintain a quality control system).
(2) Consultthe table in Appendix B and the general guidance in chapter 7, paragraph 4,

on aggravating and mitigating factors to determine the amount ofpenalty appropriate for each initial actor omission that caused orresulted in the multiple violations (for example, in airworthiness cases, a penalty for the act ofimproper maintenance or inspection; in manufacturing cases, a penalty for the act offailing to'maintain a quality control system).**~** . 

### (3) Determine the amount ofpenalty for the numerous multiple violations by applying the guidance in chapter 7, subparagraphs 7.b. through d. Ofparticular importance in determining

· an appropriate sanction for numerous multiple violations is the degree ofthe alleged violator's

culpability for the multiple violations. A lower degree ofculpability is present when the alleged. violator neither knew nor was likely to discover the continuing violations. For example, once improper maintenance was done there were no signs ofit from such things as discrepancies reported by the crew, and no inspections that would have led to its discovery were scheduled. A

more significant degree ofculpability is present when factors such as the following are present:

• the initial act or omission was entered in records that should have led to immediate detection and correction;

• the initial act or omission remained undetected and continued through required inspections or checks designed toJeveal such discrepancies;



### 7-11

### 10/01/07 2150.38

• the alleged violator was not following maintenance or inspection procedures the FAAhad approved or accepted;

• the level ofthe alleged violator's organization that was aware of, or involved in the noncompliance included management (for example, management implemented policies that contributed to the violations), although an alleged violator's culpability does notrequire management involvement;

• the alleged violator has a history ofsimilar violations or

# ahistory ofsystemic deficiencies.
Knowing and willful violations connote the highest degree ofculpability.
(4} Add the penalties arrived at for the initial violation to the penalty for the multiple violations.



### b. Limitations on Total Civil PenaltyAmounts for Numerous Multiple Violations.

(1) 

### In an average case involving numerous inadvertent, multiple violations resulting from

a single act or omission, that is, not one that is covered by chapter 7, subparagraphs 7.c. or 7.d., the total civil penalty for the multiple violations ordinarily falls within the ranges provided in either Figure 7-1 or 7-2. The group classifications are defined in part I ofAppendix

## B.

(2) The term 

### isolatedin Figures 7,..1 and 7-2 typically describes a single instance ofan employee's failure to follow a stan,ttory or regulatory requirement, contrary to the company's

own practice orprocedure. A case may involve a number ofisolated and unrelated violations. Each group ofthemultiple violations resulting from each isolated violation ordinarily is subject to the'isolated, inadvertentranges in Figures 7-1 or 7-2.
(3) Inadvertent failures are considered 

### systemic ifthey are repetitive or otherwise demonstrate an underlying deficiency in the alleged violator's system, practices, orprocedures. Systemic failures generally warrant more substantial penalties and indicate a need for corrective action.
(4) The aggravating or mitigating factors and elements in chapter 7,**paragr~phA.** 

### are considered to determine an appropriate civil penalty within the applicable range in Figure 7-1 or 7-2, for the multiple violations resulting from the initial act or omission. Ofparticular importance is an evaluation ofthe seriousness ofthe potential hazard caused by the violation and the degree ofculpability ofthe alleged violator for the multiple violations.



### 7-12

### 10/01/07 2150.38

· Figure 7-1. Ranges ofPenalties for Air Carriers, Commercial Operators,Part 125 Operators

Type of Group I Group I Group 

### II Group 

### II or Group 

### III Group IV Violations Large Small or Part Part 125**Bu~iness** 

### Business 125 Large Small Business Business Inadvertent, $200,000- $100,000- $150,000- $100,000- $75,000- $50,000- Isolated $400,000 $300,000 $300,000 $200,000 $150,000 $100,000 Violations Inadvertent, $300,000- $200,000- $250,000-

.$150,000- $100,000- $75,000- Systemic $500,000 $400,000 $400,000 $300,000. $200,000 $150,000 Violations

Figure 7-2. Ranges ofPenalties for AirAgencies, Airports, Manufacturers

Type of Air Air Airport Airport Manufacturing Manufacturing Violations Agency Agency Operator Operator Large Business· Small Business Large Small Large Small Business Business Business Business Inadvertent, $150,000-

.$100,000- $200,000- $100,000- $200,000- $100,000- Isolated $300,000 $200,000. $4oo;ooo $300,000 $400,000 $300,000 Violations Inadvertent, .$250,000- $150,000- $300,000- $200,000- $300,000- $200,000-. Systemic $400,000 $300,000 $500,000 $400,000 $500,000 $400,000 Violations



### c. Penalties.Outsidethe Ranges.
(1) 

### Penalties lower than the ranges. It maybe appropriate to select a civil penalty amount belowthe ranges in Figures 7-1 or 7-2 ifthe degree ofculpability is minimal, the degree of potential hazard is extremely low, and there are no other aggravating circumstances.
(2) Penalties higher than the ranges. It

### may be appropriate to select a civil penalty higher than the ranges, up to the statutory maximums:

• Ifthe alleged violator was significantly culpable in permitting the initial·act or omission;

• Ifthe violations involve significant safety risks;

• Ifthere was an absence ofcorrective action by the alleged violator over an extended period oftime; ·
• Where it is necessary to provide an economic disincentive for regulatory noncompliance;

or.
• Ifthe alleged violator has a poor compliance disposition orhistory.

d. Intentional Violations. When there is substantial and reliable evidence thatthe alleged

. violator knew ofthe violations resulting from the initial act or omission and allowed them to



### 7-13 Individual

$50,000- $100,000
$75,000- $150,000

### 10/01/07

.2150.38

occur, the ranges set forth in Figures 7-1 and 7-2 do not apply. For example, operation ofan aircraft when there is evidence the operatorknew the aircraft or flight was not in compliance with statutory orregulatory requirements, yet deliberately operated it anyway, is most serious, and apart from civil penalties, requires consideration ofremedial certificate action. Formultiple violations in these circumstances, any civil penalties sought may be up to the statutory maximum

. penalty for each violation, regardless ofthe number ofviolations. ·

e. Civil Complaints. The guidance in chapter 7, paragraph 7 does not limit the amount of civil penalties that may be sought in a civil complaint filed in U.S. district court.

8. Moditlcation,

. .. a. Type ofSanction. Except when the FAA exercises its prosecutorial discretion tosettle

an enforcement action, the FAA generally does not modify orders suspending or revoking a

. certificate to provide for a civil penalty. TheFAA also generally does notmodify orders

assessing a civil penillty to provide for a certificate action. TheFAA modifies the type of sanction only in those cases involving extraordinary circumstances (beyond the normal aggravating or mitigating factors and elements listed in chapter 7, paragraph 4). New facts discovered afterthe original order has been issued may provide a basis for modifying the amount ofsanction, but would not ordinarily provide a basis for modifying the type ofsanction. However, ifnewly discovered facts raise new issues, such as the alleged violator's qualifications to hold a certificate, or ifthey implicate a statutorily-mandated penalty, the FAA modifies the

.type ofsanction. ·

b. Amount ofSanction. The FAA does not apply the factors listed in chapter 7, paragraph 4. in a manner that would double their effect. Once the FAA has fairly considered the relevant mitigating and aggravating circumstances, it generally does not modify the amount 

## ofsanction. The FAA modifies the amount ofsanction normally only when new information indicates the factors or elements were not fairly applied, or when other clear and compelling reasons are articulated.

9. Special Emphasis EnforcementPrograms. Attimes special situations arise that dictate the need for more effective**enforc~m~nt** 

### action through increased sanctions or other measures in a· particular regulated area or segment ofindustry. When these circumstances arise, the FAA may set up a special emphasis enforcementprogram, designed to focus on a particular area of noncompliance on a national or local geographical basis. ·

10. Small Entities.

a. General. (1) Underthe Small Business Regulatory EnforcementFaimess Act of 1996 (SBREFA), the FAA is required to have a policy or program to provide for the reduction, and under appropriate circumstances waiver, ofcivil penalties for statutory or regulatory violations by small entities. Under the law, such a policy is to contain certain conditions. Those suggested by Congress are: requiring the small entity to correct the violation within a reasonable correction · period; limiting the applicabilityto violations discovered through participation in a compliance


### 7-14

### 10/01/07 2150.38

assistance or audit program operated or supported by the agency; excluding small entities that have been subjectto multiple enforcement actions by the agency; excluding violations involving willful or criminal conduct; excluding violations that pose serious health, safety or environmental threats; and requiring a good faith effortto comply with the law. The SBREF A .also provides that under appropriate circumstances, the FAA may consider ability to pay in determining the penalty to assess a small entity. · (2) Congressintended that agencies have the discretion to develop the limits oftheir enforcementpolicies for small entities and the specific circumstances under which penalty reductions or waivers would be granted. Because the statute·requires an agency, subject to the requirements and limitations ofother statutes, to place conditions or exclusions on its enforcement policy under SBREFA, it does not appear Congress intended agencies to reduce or waive penalties solely because an alleged violator is a small entity. Rather, the statute contemplates that certain criteriabe metbefore an agency reduces or waives a penalty against a small entity. Although the SBREF A imposes a requirement on agencies to establish penalty reduction andwaiverprograms for small entities, Congress recognized that some agencies already have formal or informal policies orprograms that would meetthis requirement.



## . b. FAA's Policy under the 

## SBREFA.

(1) The FAA's compliance and enforcementprogram includes several policies that meet the requirements of, and are consistent with the intent of, SBREF

### A. Taken together, these policies constitute the FAA's policy mandated by SBREF

### A.
(2) Underthe FAA's compliance and enforcement program, for example, FAA investigative personnel have the discretion to address alleged violations by any person, including small entities, with lesser enforcement action than a civil penalty, that is, administrative action, provided the criteria in chapter 

## 5 are met. There are two forms of administrative action: a warning notice and a letter ofcorrection. A warning notice brings to the attention ofthe regulated person or entity the facts and circumstances that indicate that a violation has occurred, identifies the regulatory provision at issue, and requestsfuture compliance. A 

### letter ofcorrection is similar but is intended for use when there is an agreement

· with the regulated party that corrective action acceptable to the FAAhas, orwithin a reasonable

period will be, taken. Administrative actions are less onerous than a waiver ofpenalty in that they neither carry a sanction nor result in a fmding ofviolation.
(3) Underthe agency's voluntary disclosure reporting program, the FAA takes administrative action instead ofcivil penalty action against most regulated entities, including small entities that voluntarily report certain apparent violations to the FAA, complete corrective action satisfactoryto the FAAto preventtheir recurrence, and meet certain other criteria.
( 4) The FAA's sanction policies have historically provided for reductions ofcivil ·penalties in appropriate cases based on the mitigating factors listed in chapter 7, subparagraph 4., which include ability to pay and whether a penalty would preventthe entity from continuing in business.



### 7-15

### 10/01/07 2150.38

(5) For air carriers and commercial operators, the FAA also takes company size into consideration in determining the appropriate amount ofcivil penalty. The sanction ranges in Part 

## I. Definitions and Abbreviations ofthe table for single, inadvertent, first-time violations by U.S

.. air carriers and U.S. commercial operators differentiate among various sizes ofsuch entities as a
means ofproviding a relatively equivalent deterrent for the same violation against each air carrier and commercial operator. While the FAAhas not specified such sanction ranges for other certificate holding entities, it is theFAA's policy to seekpenalties generally relative to the size and revenue ofthe operation for repair stations, manufacturers, airports, and other entities holding certificates.

(6) Although the FAA does notreduce orwaive the penalty ofan alleged violator solely because it is a small entity, the FAA appropriately reduces a civil penalty, or elects to take administrative action rather than legal enforcement action, against a small entity ifappropriate under**~he** 

### policies described in chapter 7, subparagraphs 10.b.(l)-(5).



### c. The Small Business Ombudsman.

(1) Tl).e Small Business and Agriculture Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were established to receive comments from small businesses about

· federal agency enforcement actions. The Ombudsman annually evaluates the enforcement

activities and rates each agency's responsiveness to small business.

(2) EachFAA employee who conducts an inspection ofa small business concern that is regulated bythe FAAprovides the small business concern with an information sheet. The information sheet informs that entity that it may submit complaints or comments regarding unfair FAAregulatory enforcementto the National Ombudsman. The information sheet contains the following language:

Our objective is to ensure a fair regulatory enforcement environment. Ifyou feel that you have been treated unfairly orunprofessionally, you may contact the FAA by calling the FAA's Office ofRulemaking at (202)-267-3404 or by mailing your comments or complaints to the Federal Aviation Administration, Office ofRulemaking, 800 · Independence Avenue,**S.~.,** 

### Room 808, Washington, D.C., 20591. You**al~o** 

### have a right to contactthe Small Business Administration's National Ombudsman at 1- 888- REG-F 

# AIR (1-888-734-3247), orwww.sba.gov/ombudsman regarding the fairness ofthe compliance and enforcement activity ofthe FAA. The FAA strictly forbids retaliatory acts by its employees. As such, you should feel confident thatyou will not be penalized for expressing your concerns aboutthe FAA's compliance and enforcement activities.



### 11. Remedial Sanction Guidance Policy.

a. General.

(1) The FAA statute requires the Administrator to promote "safe flight ofcivil aircraft in air commerce

...." 49 U.S.C. 

### § 44701(e). As one means ofachieving this goal, the statute specifically authorizes the Administratorto issue various certificates. These certificates include



### 7-16

### 10/01/07 2150.38

airman certificates, type certificates, production certificates, airworthiness certificates, air carrier operating certificates, airport operating certificates, air agency certificates, and air navigation facility certificates. 49 U.S.C. § 44702(a). Formost ofthese certificates, the statute requires the Administratorto investigate and make appropriate findings regarding qualifications to hold the certificate applied for before the certificate is issued. For example, the Administrator is required to investigate and make findings that persons applying for airman certificates are 

### qualifiedto hold those certificates; that aircraft and aircraft engine parts are properly designed and manufactured, perform properly, and meetthe regulations and minimum standards prescribed before issuing a type certificate, and so forth. 49 U.S.C. §§ 44702-44706. Oncethe Administrator finds the applicant is qualified for the certificate applied for, the Administrator is required to issue the certificate in question.

(2) Becausethe Administrator's responsibility to promote safety in air commerce and air transportation is constant, the Administrator must also take appropriate action when the Administrator finds, orhas reason to believe, the certificate holder no longer possesses the qualifications required to hold a certificate. Thus, the statute provides that the Administrator "mayreinspect at anytime a civil aircraft, aircraft engine, propeller, appliance, air navigation · facility, or air agency orreexamine an airman holding a certificate issued under section 44703 of this title," and that the Administrator "may issue an order amending, modifying, suspending or revoking

... any part ofa certificate issued under [chapter 447 ofthe statute] if

... the Administrator decides after conducting a reinspection, reexamination, or other investigation that safety in air commerce or airtransportation requires that action." 49 U.S.C. §§ 44709(a) and (b) 

### (1) (A).

(3) Revocation is the appropriate remedy for conduct that demonstrates that a certificate holder lacks eitherthe technical proficiency orthe degree ofcare,judgment, and responsibility, required for the certificate andratings held. The proper standard for revocation is notwhether specific violations demonstrate a failure to exercise the necessary qualifications ofa certificate holder, butrather whetherthe violations demonstrate that the holder has never possessed or no longerpossesses such qualifications. Similarly, suspension until demonstration ofqualification is appropriate wh(m the agency has reason to believe the certificate holder may lack the required competence to hold a certificate and generallywhenthe certificate holder fails or refuses to be reexamined. In either case, usj,pg the factors normally applied to select a**sanctio~** 

### ip. punitive suspension cases is neither required nor appropriate.

-


### b. Misconduct GenerallyWarrantingRevocation.

(1) The FAAhas conCluded that by their nature, some acts ofmisconduct are so egregious as to demonstrate the certificate holder never possessed orno longerpossesses the qualifications required to hold any airman certificate and other certificates. Therefore, such acts ofmisconduct warrant revocation ofall airman certificates and other certificates held bythe certificate holder. Such acts include: making a fraudulent or intentionally false statement; operating an aircraft while under the influence ofalcohol or drugs, orwith an alcohol concentration of.04 percent or above, orwithin 8 hours ofconsuming alcohol, 

### in violation of 14 C.F.R. 

### § 91.17(a); operating a civil aircraft within the United States with knowledge that narcotic drugs, marijuana, and depressant or stimulantdrugs or substances as defined**i~** 

### federal



### 7-17

## 10/01/07 2150.38

or state statutes are carried in the aircraft, in violation of 14 C.F.R. 

## § 91.19(a); refusing to submit to a drug or alcohol test; and conviction for the violation ofany federal or state statute relating to the growing, processing, manufacture, sale, disposition, possession, transportation, or · . importation ofnarcotic drugs, marijuana, depressant or stimulant drugs or substances involving the use ofan aircraft, the exercise ofthe privileges ofthe alleged violator's airman certificate to further the prohibited conduct, or more than one drug conviction ofany kind within the scope of 14 C.F.R. §§ 61.15(a), 63.12(a), or 65.12(a). 5



### (2) Except for cases under 49 U.S.C. §§ 44106, 44710, 44726, and 46111, there may be unique circumstances for which a sanction otherthan revocation is warranted. Because ,ofthe serious implications for aviation safetyraised by these cases, however, FAA legal counsel coordinates any decision to seek a sanction otherthan revocation with the Assistant Chief Counsel for Enforcement. In addition, legal counsel documents the basis for that decision in the

case file.



## c. Intentionally False orFraudulent Statements.

(1) In general, the FAA considers the making ofintentionally false or fraudulent statements so serious·an offense that itresults in revocation ofall certificates held by the certificate holder. 

### See, for example, 

### Administrator v. Twomey, 5 NTSB 1258 (1986), 

### aff'd 821 F.2d 63 (1st Cir. 1987) (violation of 14 C.F.R. § 67.20(a)). Falsification has a serious effect

on the integrity ofthe records on which the FAA's safety oversight depends. IftheTeliability of these records is undermined, the FAA's ability to promote aviation safety is compromised.

(2) The FAA.has handled differently one area ofintentional falsification

- omitting

. information related to alcohol- or drug-related convictions, and other similar convictions, from

applications for airman medical certification. InFAA Order 2150.3A, Compliance and Enforcement (C & E) BulletinNo. 90-2, issued on February 6, 1990, the agency's policy called for the following sanctions: revoking the alleged violator's currentmedical certificate, ifany, and suspending any airman or ground instructor certificates for 60 days when the falsification involved omitting from the application for medical certification information on a shigle driving while intoxicatedor driving under the influence 

### (DUI) conviction; revoking any currentmedical certificate and suspending any airman or ground instructor certificates for 180 days. when the falsification involved omitting information on a single drug conviction for simple possession from the application for medical certification; and revoking any currentmedical 

### andany airman

or ground instructor certificates when the falsification involved omitting information on more than one DUI conviction, or a conviction for more than simple possession, or more than two drug convictions ofanytype.
(3) The FAAhas reevaluated the sanction guidance contained inC & E Bulletin

5 

### A drug conviction within the scope of 14 C.F.R. §§ 

### 61.15(a), 63.12(a), or 65.12(a) that does not involve the use of

an aircraft or the exercise of theprivileges ofthe alleged violator's certificate also can warrantrevocation in some circumstances. Revocation is appropriate where thetotality ofthe circumstances underlying the conviction indicates thatthe alleged violator lacks thejudgment, responsibility, and compliance attitude required ofan airman. This determination must bemade on a case-by-case basis.


### 7-18

### 10/01/07 2150.38

No. 90-2, and has concluded that the sanction guidance for fraudulent or intentional falsification should bethe same regardless ofthe type ofcase involved. The FAAhas determined that falsification in the cases described in C & 

### E Bulletin No. 90-2 has the same potentially adverse consequences for aviation safety as does falsification ofany other record. In essence, a person who fraudulently or intentionally falsifies these records demonstrates the same lack ofcare, · judgment, and responsibility as a person who falsifies any other aviation safety-related records. To correct the anomaly created by C & 

### E BulletinNo. 90-2, the FAArescinds the sanction guidance regarding intentionally false or fraudulent statements in that bulletin and withdraws the Notice ofEnforcement Policy found at 54 Fed. Reg. 15144 (1989).



### 12. General Guidance for Using the Sanction Guidance Table for Unruly Passenger Conduct Under 49 U.S.C. 

## § 46318.

a. GeneralPurpose and Policy.
(1) The table atAppendix B, part II, Figure B-3-p provides the suggested sanction ranges for a single act ofunruly conduct by a passenger subject to the provisions of49 U.S.C. 

### § 46318. 

### See also Crew Interference (Unruly Passengers), chapter 4, paragraph 14

.. They provide general guidance only about how to apply the agency's civil penalty authority under 49 U.S.C. 

### § 46318. The sanction guidance tables do not supplant the agency'sjudgment or its prosecutorial discretion in evaluating a particular case for enforcement action.
(2) Whether a particular passenger's unruly act warrants a sanction within or outside the sanction range, or in the exercise ofprosecutorial discretion a decision notto proceed with enforcement action depends on the totality ofthe circumstances in a particular case. Wherethe mitigating and aggravating factors described in chapter 7, paragraph 4 are also present in a 49 U.S.C. § 46318 case, FAA enforcement personnel applying the sanction ranges at Appendix B; part II, Figure B-3-p consider those factors in selecting an appropriate sanction within or outside the range. The variety ofcond{J.ct subject to 49 U.S.C. 

### §46318 andthe varied facts and circumstances within which unruly conduct may occur, may also warrant consideration ofother mitigating and aggravating factors unique to unruly passenger conduct. Some ofthese additional factors are set forth in chapter 7, subparagraphs 12.b. and c. ·


### b. Additional Aggravating Factors to Consider. In addition to the factors described in chapter 7, paragraph 4, FAA enforcement personnel consider other potentially aggravating factors in chapter 7, subparagraphs 12.b.(l)-(7) in the selection ofan appropriate sanction within

or outside the sanction range.
(1) The severity ofthe unruly conduct. The severity ofthe conduct may be indicated by several factors, including:

• The physical characteristics ofthe individual committing the unnily conduct contrasted with those ofthe victim.

• The nature ofthe conduct itself.

• The extent ofany injury inflicted.



### 7-19

### 10/01/07 2150.38

(2) Whether the unruly conduct occurred when the aircraft was in flight or while passengers were boarding or deplaning. Certain unruly conduct that occurs during flight or on a crowded boarded flight may be more aggravating than the same conduct that occurs while passengers are deplaning.

(3) Whether the unruly conduct was directed at a crewmember or a passenger. Because

a crewmemberhas safety duties to perform on a flight, unruly conduct against a crewmember maybe more aggravating than the same unruly conduct directed at an individual who does not have any safety duties to perform on the flight.

(4) Whether the unruly passenger provoked the situation thatresulted in the unruly conduct. For instance, a passenger who instigates a confrontation, or a passenger who mixes alcohol with prescribed or over-the-counter drugs that the passenger claims precipitated the unruly conduct.
(5) Whether the unruly conduct necessitated thatthe flight be diverted from its intended

· destination. ·
(6) Whether the unruly conduct necessitated that the flight crew call ahead for law enforcementto meet the flight on arrival. ·
(7) Whether the unruly conduct was inflicted with malice or in anger.



## c. AdditionalMitigating Factorsto Consider. The factors listed in chapter 7, subparagraphs 12.c.(l)-(3) mayjustify a sanction below the sanction range, or in the agency's prosecutorial discretion, mayjustify a decision not to prosecute a passenger's unruly conduct.
(1) Whether the unruly passenger has already served a criminal sentence for the same conduct orhas already made monetary restitution in the context ofa criminal prosecution for the·

same conduct. ·
(2) Whetherthe passenger's unruly conduct was caused by a diagnosed medical or mental condition for whichthe<passenger was receiving medical treatment.
(3) Whether the unruly conductwas. a reasonable response to a provocation by another. However, a passenger's use ofunreasonable force in response to a provocation by another individual on the aircraft would not constitute a mitigating factor.



## d. When to Apply the Sanction Range for Acts Posing an "ImminentThreat" to Safety ofthe Aircraft or Others on Board the Aircraft.
(1) The sanction range at Appendix B, part II, Figure B-3-p for an actthat poses an imminent threat to safety ofaircraft or other individuals on the aircraft applies when there is an

· imminentthreat to the safety ofthe aircraft or to the collective safety ofothers on board the

aircraft. Forexample, a passenger attemP.tingto open an emergency exit door would be an imminentthreat to the safety ofthe aircraft. Ifthe imminent threat to safety is directed to

.

### 10/01/07 2150.38

specific hidividuals on the aircraft, then the sanction range for physiCal assault or threatened physical at Appendix B, part II, Figure B-3-p applies.

(2) In selecting an appropriate sanction within or outside the sanction range for an act posing an imminent safety threat, FAA enforcement personnel consider whether the resultant imminentthreatwas the unintended consequence ofthe passenger's careless or reckless act or whether the passenger intended the consequences. The former wouldjustify a sanction toward ·the low end ofthe range, while the latter wouldjustify a sanction toward the maximum range.

e. Applicable Sanction Ranges for Security Officers or Others Assigned a Law EnforcementFunction on a Flight (for example, FederalAirMarshals Assigned to the Flight). FAA enforcement personnel apply the sanction range applicable to physical assaults or threatened physical assaults on crewmembers (Appendix B, part II, Figure B-3-p).

f. Applying UnrulyPassenger Sanction Guidance Tables to Multiple Acts. When applying the table to multiple acts by an unruly passenger, FAA enforcement personnel consider not only the individual unruly acts committed, but also the collective consequences of all the unruly behavior

.. FAA enforcement personnel do not approach the sanction determination for multiple acts as a mechanical exercise ofmultiplying the number ofseparate acts ofunruly behavior by a sanction amount in the range for a single act. Instead, they use the guidance in the table and exercise theirjudgment as to the seriousness ofthe conduct, given the totality of circumstances, to determine an appropriate sanction amount that will deter future violations by the unruly passenger and others similarly situated.

7-21

### . 10/01/07



## AppendixB

Table ofSanctions

All Enforcement Programs Except HazardousMaterials

Part One

- Abbreviations and Definitions .2150.38

1. Applicability. This table ofsanctions applies to violations that occurred on or after ·October 1, 2007. For violations occurring before October 1, 2007, FAA enforcement personnel

apply the sanction guidance principles in FAA Order 2150.3A using up to the statutory maximum sanction amount in effect at the time ofthe violation.

2. Abbreviations. The following abbreviations are used in this Table:



## AP ISmeans approved production inspection system 

## AIWmeans airworthiness 

## AWC means airworthiness certificate

. . BTS

### means Under Secretary for Border and Transportation Security !A 

### means inspection authorization · LE

### means law enforcement PC

### means production certificate STC

### means supplemental type certificate TC 

### means type certificate TFR 

### means Temporary Flight Restriction TSA 

### means Transportation Security Administration 3. Definitions:

·a. A continuing violation 

### ariSes when a specific violation occurs over more than one day

or overmore than one flight. It also may involve a violation that is ongoing,jorexample, 

### an ongoing refusal to provide required records to the FAA for inspection. Punitive sanctions are appropriate for continuing violations that are not currently ongoing. Sanction guidance for these violations is set forth in paragraphs 6 and 7 (multiple acts ormultiple violations) 

### of chapter 7. A combination ofpunitive and remedial sanctions is appropriate when continuing violations are ongoing. ·

b. Violation committed by a small business concern. 

### Section 503 ofVision 1 00---Century ofAviation Reauthorization ACt (CARA) amended 49 U.S.C. 

### § 46301 to change the civil penalty amounts the FAA may seek for violations that occur on or after December 12, 2003; thelaw sets different limits onthe civil penalties the FAA may seek for violations by small business concerns, 

### as opposed to violations by other entities. Vision 100 CARA gives small business concern

### the same meaning as in the Small Business Act (15 U.S.C. 

### § 632). Section 632 defines smallbusiness concern 

### as an enterprise "Which is independently owned and operated and which is not dominant in its Qeld ofoperation." The Small Business Administration regulations implement the Small Business Act and defme business concern 

### as



### 8-1

### 10/01/07 2150.38

"abusiness entity organized for profit, with a place ofbusiness located in the U.S., and which operates primarily within the U.S. or which makes a significant contribution to the U.S. economy through payment oftaxes or use ofAmerican products, materials 

## ot labor." 13 C.P.R. 

## § 121.105. The SBA regulations further define small business concern in tables, describing each kind ofentity by its economic activity or industry, and listing the limit for smallby annual receipts or, more commonly, number ofemployees. (The size limits generally

are established under the North American Industry Classification System (NAICS).) Forthe complete list, see 13 C.P.R.§ 121.201 orthe SBA's website at www.sba.gov. Thus, ifa person meets the definition ofbusiness concern andhas.annual receipts orthe number ofemployees within the applicable SBA limit, it is a small business concern, and the FAA will determine the civil penalty using the applicable range. Limits for common aviation entities follow (in numbers ofemployees, unless otherwise noted).
Manufacturing Aircraft- 1,500 employees Aircraft engine andpart- 1,000 employees Other aircraftpart and equipment- 1,000 employees

Airtransportation Scheduled passenger- 1,500 employees Scheduled freight- 1,500 employees Nonscheduled passenger- 1,500 employees Nonscheduled offshore marine passenger- $25.5 million annual receipts Nonscheduled freight- 1,500 employees Nonscheduled offshore marine freight- $25.5 million annual receipts Other nonscheduled

- $6.5 million annual receipts Support activities

- $6.5 million annual receipts
Flight Training- $23.5 million annual receipts
Airport operations Airport operator, organized for profit- $6.5 million annual receipts Other operations, excluding air traffic control

- $6.5 million annualreceiptsNote thatthe following guidance uses large business concern for some civil penaltyranges. That is not a statutory or regulatory term for purposes ofFAA enforcement. It

### includes each business concern that exceeds the maximum limit for small business concern, as well as any other entity that does not meetthe definition of"small business concern."

c. Civil PenaltyRanges. Forthe purpose ofthis table, when civil penalty action is recommended and described as Minimum, Moderate, orMaximum, the penalty ranges are defined in subparagraphs (1) through (9) ofthis paragraph. Note that the middle ofeach recommended sanction**ran~e** 

### would be for a single violation without aggravating ormitigating factors.



### 8-2

### 10/01/07 2150.38



### (1) VIOLATION CO:MMITTED BY U.S. AIR CARRIERS OR U.S. CO:MMERCIAL OPERATOR.

CLASSIFICATION OF AIRCARRIERAND OPERATOR

GROUP I- Each air carrier operating underpart 121 or part 135, with an aimual operating

revenue of$100,000,000 or more. Operating revenue is determined by reference to DOT's ·"AirCarrier Industry Scheduled Servic,e Traffic Statistics Quarterly." 

### See http://ostpxweb.dot.gov/aviation/index.html, and click on "Airlfue Financial Review."

GROUP II- Each air carrier or commercial operator operating under part 121 with an annual operating revenue ofless than $100,000,000, or under part 135 with an annual operating

.revenue ofless than $100,000,000, ifthe 135 operator has 50 ormore pilots and 25 ormore aircraft on its operations specifications. Operating revenue is determined by reference to DOT's "Air Carrier Industry Scheduled Service Traffic Statistics Quarterly."

GROUP III- Each air carrier or commercial operator operating under part 135 with 6 to 49 pilots or 6 to 24 aircraft. ·

GROUP IV- Each air carrier or commercial operator operating under part 135 with no more than 5 pilots and no more than 5 aircraft.

GROUP I

- 

### large business concern

Maximum. Moderate Minimum $18,750-$25,000 $10,000-$18,749 $2,000-$9,999

GROUP I

- small business concern (for violations covered under 49 U.S.C. 

### § 46301(a)(5)(A)):

Maximum Moderate Minimum $8,250-$11,000 $4,400-$8,249 $1' 100-$4,399

GROUP I- small business concern (for violations covered under 49 U.S.C. 

### § 46301(a)(1)(A)

or (B) but not under 49 U.S.C. 

### § 46301(a)(5)(A)):

Maximum Moderate Minimum $850-$1,100 $650-$849 $500$649

GROUP II 

### -large business concern:

B-3

## 10/01/07 2150.38

Maximum $16,250-$25,000 Moderate $8,750-$16,249 Minimum $1,850-$8,749

GROUP II- small business concern (for violations covered under 49 U.S.C. § 

### 46301(a)(5)(A)):

Maximum $8,250-$11,000 Moderate $3,850-$8,249 Minimum ·$935-$3,849

GROUP II- small business concern (for violations covered under 49 U.S.C. §46301(a)(1)(A)

or (B) but notunder 49 U.S.C. 

### §46301(a)(5)(A)):

Maximum $750-$1,100 Moderate $450-$ 749 Minimum $250 $ 449

GROUP III -for violations covered under 49 U.S.C. §

### 46301(a)(5)(A):

Maximum $7,150-$11,000 Moderate · $3,300-$7,149 Minimum $825-$3;299

GROUP III- for violations covered under 49 U.S.C. § 46301(a)(l)(A) or (B) but not under 49 U.S.C. § 46301(a)(5)(A):

Maximum $650-$1,100 Moderate $400-$ 649 Minimum $150-$ 399

GROUP IV -for violations covered under 49 U.S.C. § 

### 46301(a)(5)(A):

Maximum $4,400:-$11,000 Moderate $2,200-$4,399 Minimum $550-$2,199

GROUP IV- for violations covered under 49 U.S.C. §46301(a)(l)(A) or (B) 

### but not under 49 U.S.C. §46301(a)(5)(A):

Maximum $500-$1,100 Moderate $300-$499

B-4

### 10/01/07

Minimum**$100~$299**



### (2) VIOLATION COMMITTED BYPART 129 OPERATOR

Maximum $18,750-$25,000 Moderate $10,000-$18,749 Minimum $2,000-$9,999

(3) VIOLATION COMMITTED BY PART 125 OPERATOR.
Large Business Concern:

Maxim'um Moderate Minimum $16,250-$25,000 $8,750-$16,249 $1,850-$8,749

Small**~usiriess** 

### Concern (for violations covered under 49 U.S.C. § 46301(a)(5)(A)):

Maximum $8,250-$11,000 Moderate $3,850-$8,249 Minimum $935-$3,849 2150.38

Small Business Concern (for violations covered under 49 U.S.C. § 46301(a)(1)(A) or (B) 

### but not under 49 U.S.C. §46301(a)(5)(A)):

Maximum $750-$1,100 Moderate $450-$749 Minimum $250 $449

(4) VIOLATION COMMITTED BYAIR AGENCY (INCLUDING REPAIR STATION).
Large Business Concern:

Maximum $16,250-$25,000 Moderate $8,750-$16,249 Miriimum $1,850-$8,749

Small Business Concern(for violations covered under 49 U.S.C. §46301(a)(5)(A)):

Maximum $7,150-$11,000 Moderate $3,850-$7,149 Minimum $935-$3,849

8-5

### 10/01/07 2150.38



### Small Business Concern (for violations covered under 49 U.S.C. § 46301(a)(1)(A) or (B) but not under 49 U.S.C. §46301(a)(5)(A)):

Maximum $750-$1,100 Moderate $450-$749 Minimum $250 $449

(5) VIOLATION COMMITTEDBYAIRPORT OPERATOR.
Large Business Concern:

Maximum $18,750-$25,000 Moderate $10,000-$.18,749 Minimum $2,000-$9,999

Small Business Concern (for violations covered under 49 U.S.C. § 46301(a)(5)(A)):

Maximum $8,250-$11,000 Moderate $4,400-$8,249 Minimum $1,100-$4,399

Small Business Concern (for violations covered under 49 U.S.C. § 46301(a)(l)(A) or (B) but notunder 49 U.S.C. § 46301(a)(5)(A)):

Maximum $850-$1,100 Moderate $650-$849 Minimum $500 $649

(6) LARGE BUSINESS CONCERN-- DOES NOT HOLD CERTIFICATE

Maximum $18,750-$25,000 Moderate $10,000-$18,749 Minimum · $2,000-$9,999

(7) SMALL BUSINESS CONCERN- DOES NOT HOLD CERTIFICATE

For violations covered under 49 U.S.C. §46301(a)(5)(A):

Maximum $4,400-$11,000 Moderate $2,200-$4,399. Minimum $550-$2,199

B-6

### 10/01/07 2150.38

Forviolations covered under 49 U.S.C. §

### 46301(a)(1)(A) or (B) butnot under 49 U.S.C. 

### §46301(a)(5)(A):

Maximum $500-$1,100 Moderate $300-$499 Minimum $100-$299

(8) VIOLATION RELATING TO THE TRANSPORTATION OF A HAZARDOUS MATERIAL (14 CFR), THE REGISTRATION ORRECORDATION OF AN AIRCRAFT NOT USED TOPROVIDE AIR TRANSPORTATION, THE LIMITATION ON THE CONSTRUCTION ORESTABLiSHMENT OF A LANDFILL, ORTHE SAFE DISPOSAL OF A LIFE-LIMITED AIRCRAFT PART.
Large Business Concern (ifentity is not within a more specific category, for example, Group I Air Carrier or Operator):

Maximum $16,250..:$25,000 Moderate $8,750-$16,249 Minimum $1,850-$8,749

. . 

### Small Busiriess Concern (ifnot within a more specific category for example, Group II Air Carrier or Operator) or Individual:

For violations covered under 49 U.S.C. §

### 46301(a)(5)(A): ·

Maximum Moderate Minimum $4,400-$11,000 $2,200-$4,399 $550-$2, 199

## F~r violations covered lihder 49 U.S.C. §

### 46301(a)(1)(A) or (B) butnot under 49 U.S.C. §

### 46301(a)(5)(A):

Maximum Moderate Minimum $500-$1,100

. $300-$499 $100-$299

(9) OTHERVIOLATION COMMITTED BYAN INDIVIDUAL.

AIRMAN SERVING AS ANAIRMAN- INDIVIDUAL SERVING IN CAPACITY OF AN AIRMAN. ALL VIOLATIONS EXCEPT THOSE LISTED IN (8).

Maximum $850-$1,100

B-7

### 10/01/07

Moderate Minimum $650-$849 $500-$649

OTHER INDIVIDUAL- NOT SERVING IN CAPACITY OF AIRMAN.

For violations covered under 49 U.S.C. § 46301(a)(5)(A):

Maximum $4,400-$11,000 Moderate $2,200-$4,399 Minimum $550-$2,199 

### 2150.38

For violations covered under 49 U.S.C. § 46301(a)(1)(A) or (B) but not under 49 U.S.C. 

### § 46301(a)(5)(A):

Maximum Moderate Minimum $500-$1,100 $300-$499 $100-$299

(10) ENGINEERING AND MANUFACTURING VIOLATI6NS.
Large Business Concern:

Maximum $18,750-$25,000 Moderate $10,000-$18,749 Minimum $2,000-$9,999

Small Business Concern orIndividual (for violations covered under 49 U.S.C. 

### § 46301(a)(5)(A):

Maximum Moderate Minimum $8,250-$11,000 $4,400-$8,249 $1,100-$4,399

Small Business Concern orIndividual (for violations covered under 49 U.S.C. 

### § 46301(a)(1)(A) or (B) 

### but not under 49 U.S.C. §46301(a)(5)(A):

Maximum Moderate Minimum $850-$1'100 $650-$849 $500$649



### B-8

### 10/01/07 2150.38

d. Pending compliance orcorrective action; injunctive relief. Formany kinds ofviolations, there may be circumstances where the FAA should not allow the offending entity to continue to operate or to continue in business. Examples include a certificate holder that does not allow an FAA inspector to inspect the holder's operation or facilities, or an unapproved manufacturer that produces aircraft parts inviolatlon of 14 C.F.R. §

### 21.303. In that circumstance, suspension ofan entity's certificate or other approval, pending compliance or corrective action, or injunctive reliefagainst an entitythat does not hold an FAA approval, would be appropriate. In egregious circumstances revocationofthe entity's certificate or other approval maybe warranted. Such action or reliefmay be considered in addition to the assessment ofa civil penalty as recommended in the following tables.

Furthermore, amendment ormodification ofa certificate or approval may be appropriate in the circumstance where a defmitive part ofthe offending entity's operation can be safely excluded from the operational appt:oval. An example is an approved aircraft parts manufacturer that makes multiple kinds ofparts, but has quality control problems for only one kind ofpart. Such action may be considered in addition to the assessment ofa civil penalty as recommended in the\following ta:bles.



## PartTwo

- Sanction Guidance Tables



## 1. U.S. Air Carriers, U.S. Commercial Operators, Part 125 Operators, and Part 129 Operators.
Fig. B-1-a. Maintenance Manual Fig. B-1-b. AIW

### Directive Fig. B-1-c. Operations Specifications Fig. B-1-d. Facilities and Equipment Fig. B-1-e. Maintenance and Inspection Organization Fig. B-1-f. Training Program Fig. B-1-'g. Maintenance orAircraft Paperwork Fig. B-1-h. Performance ofMaintenance Fig. B-1-i. SF AR 36 Fig. B-1-j. Records and Reports Fig. B-1-k. Dispatch and Flight Release Rules Fig. B-1-1. Operation ofunairworthy aircraft Fig. B-1-m. Provisions specific to passenger-carrying Fig. B-1-n. Provisions specific.to flight deck crew Fig. B-1-o. Other provisions Fig. B-1-p. Operations at airports requiring slots



## 2. Personnel ofAir Carriers, Commercial Operators, and Part 125 Operators.
Fig. B-2-a. Maintenance, including inspection Fig. B-2-b. Inspection

B-9

### 10/01/07

Fig. B-2-c. Records and Reports Fig. B-2-d. Flight operations Fig. B-2-e. Other provisions applicable to individual certificate holders Fig. B-2-f. Other Air Carrier Personnel 2150.38



## 3. Individuals and General Aviation- Owners, Pilots, Repair Stations, Pilot Schools, Maintenance Personnel.
Fig. B-3-a. Owners and Operators Other Than Required Crewrnernbers Fig. B-3-b. Repair Stations Fig. B-3-c. ID Plate Violations Fig. B-3-d. Part 141 Pilot Schools Fig. B-3-e. General Aviation Maintenance Personnel Fig. B-J-f. Student Operations Fig. B-3-g. Flight Instructors Fig. B-3-h. Other Violations Fig. B-3-i. Weather Operations Fig. B-3-j. 14 C.F.R. 91.13(a), Careless or reckless operation so as to endanger (independent violation) Fig. B-3-k. Passengeroperations Fig. B-3-1. Acting or attemptingto act as a crewrnernberunderthe influence ofdrugs or alcohol; consumption ofalcohol before operating an aircraft Fig. B-3-m. Crime; security risk; falsification Fig. B-3-n. Miscelianeous Fig. B-3-o. Operations at Airports Requiring Slots Fig. B-3-p. Unruly passengers Fig. B-3-q. Other Violations by Passengers



## 4. DUIIDWI Program, Falsification ofDrug Convictions and Airman Medical Certificate Violations.
Fig.**B-4~a.** 

### Sanctions related to DUIIDWI Program Fig. B-4-b. Airman Medical Certificate Violations Fig. B-4-c. ·Drug convictions

- no falsification involved



## 5. Drug and Alcohol Testing Violations.
Fig. B-5-a. Drug and alcohol testing violations Fig. B-5-b. Coverage · Fig. B-5-c. Pre-:employrnent drug testing Fig. B-5-d. Random drug and alcohol testing Fig. B-5-e. Post-accident drug and alcohol testing Fig. B-5-f. Reasonable cause drug and reasonable suspicion alcohol testing Fig. B-5-g. Return to duty drug and alcohol testing

B-10

### 10/01/07

Fig. B-5-h. Follow-up drug and alcohol testing Fig. B-5-i. Retesting covered employees Fig.**B~5-j.** 

### Inappropriate testing Fig. B-5-k. Administrative and other matters Fig. B-5-1. Medical Review Officer (MRO) Fig. B-5-m. Substance Abuse Professional (SAP) referral and evaluation Fig. B-5-n. Employee Assistance Program Fig. B-5-o. Alcohol misuse information, training, and referral Fig. B-5-p. Violations ofthe drug and alcohol prohibitions Fig. B-5-q. Employees located outside the Territory ofthe U.S. Fig. B-5-r. Specimen collection Fig. B-5-s. Laboratory issues Fig. B-5-t. Alcohol testing Fig. B-5-u. Consequences to the uncertificated individual Fig. B-5-v. Consequences to the certificated individual



### 6. Airport Operators.
Fig. B-6-a. Certification Fig. B-6-b. Certification Manual Fig. B-6-c. Operations



### 7. Violations ofNoise Provisions.
Fig. B-7-a. AircraftNoise (14 C.F.R. p;;trt 91, subpart I)



### 8. Violations ofPilotRecords ImprovementAct (PRIA).
Fig. B-8-a. PRIA



### 9. Engineering and Manufacturing Violations.

· Fig. B-9-a. APIS Holders, including production under type certificate

Fig. B-9-b. Production Certificate Holders · Fig. B-9-c. Designees 2150.38

Fig. B-9-d. Technical Standard Order Authorization {TSOA), Letter·ofDesignApproval, and Letter ofAcceptance Manufacturers Fig. B-9-e. Replacement orModification Parts Manufacturers Fig. B-9-f. All Production Approval Holders Fig. B-9-g. TC orSTC Holder; Manufacturers and Alteration Entities Fig. B-9-h. All persons, including designees



### 10. Aircraft Owner/OperatorRegistration Violations.
Fig. B-10. Registration

B-11

### 10/01/07 2150.38

Fig. B-4-c. Drug convictions

- no falsification involved Civil Penalty Certificate cont. Action (2) Multiple convictions for simple possession* 120-day Suspension to Revocation ofall part 61, 63, or65 certificates (3) Conviction(s) for otherthan simplepossession* Revocation ofall part 61, 63, or65 certificates

*It may be appropriate, inthe exercise ofprosecutorial discretion, notto take enforcement action when

a conviction is several years old when discovered by the FAA and there is evidence thatthe certificate holderhas been rehabilitated such that the individual can be expected to conform his or her conduct .to safety requirements.



### 5. DRUG AND ALCOHOL TESTING VIOLATIONS.
Fig. B-5-a. Drug and Alcohol Testing Violations Civil Penalty Certificate Action (1) Failure ofan air carrier operating under part 121 orpart Moderate 135 operatorto obtain an operations specification (2) Failure ofa part 145 operator (that opts to have its own Moderate drug program and AMPP) to obtain an operations specification (3) Failure ofa Section 135.l(c) ornon-FAA air traffic Moderate control facility to submit a registration to the FAA (4) Failure ofa contractor (that opts to have its own drug and Moderate alcohol prog_rams)_to submit a registration to·the FAA (5) Failure to implement ormaintain continuous coverage in Maximum Indefinite

an FAA antidrug program and/or AMPP.in accordance with Suspension Appendices I and/or

### J

..... .,..**~** .. 

### pending compliance

or Revocation


### Fig. B-5-b. Coverage CivilPenalty Certificate Action 

### (1) Failure to include a safety-sensitive employee in FAA Maximum mandated drug and alcohol testing programs (2) Permitting a contractor employee to perform a function Maximum listed in Appendix I or J who is not covered under an**FAA~** 

### mandated antidrug and/or alcohol misuse preventionprogram



### 8-31

### 10/01/07 2150.38

Fig. B-5-c. Pre-employment drug testing Civil Penalty Certificate Action (I) Failure to advise each individual applying to perform a Minimum safety-sensitive function ofthe pre-employmenttesting requirement 

## - (2) Failure to pre-employment drug test an individual and/or Maximum receive a negative drug testresult priorto hiring or transferring that individual for a safety-sensitive function (3) Failure to pre-employment drug test before hiring or Moderate transferring an individual into a safety-sensitive position if

more than 180 days elapse between a pre-employmenttest and placing the individual into a safety-sensitive function
Fig. B-5-d. Random drug and alcohol testing Civil Penalty Certificate Action (1) 

### Failure to conduct random drug and/or alcohol testing Maximum (2) Failureto meetthe minimum annual percentage rate for Moderate random drug and/or alcohol testing (3) Failure to use a scientifically valid method ofrandom Moderate selection (4) Failure to ensure that random drug and/or alcohol tests Moderate

are unannounced (5) Failure to ensure the dates for administering random tests Minimum

are spread reasonably throughout the calendar year (6) Failure to ensure that an employee who is notified 

### to Moderate report for random drug and/or alcohol testing proceeds immediately to the testing site (7) Failure to conduct alcohol testingjust before the employee Minimum is to perform a safety-sensitive function, during orjustafterthe employee has ceased performing a safety-sensitive function
Fig. B-5-e. Post-accident drug and alcohol testing Civil Penalty Certificate Action (1) Failure to drug and/or alcohol testeach employee who Maximum performs a safety-sensitive functiqp., ifthat employee's

.

# - performance either contributed to an accident or cannotbe completely discounted as a contributing factor to the accident. (2) Failure to post-accident drug test an employee within 32 Maximum .hours afterthe accident. (3) Failure to conductpost-accident alcohol testing on an Maximum employee within 8 hours after the accident (4) Failure to prepare and maintain on file required records Minimum stating the reasons the post-accident alcohol test was not administered within 2 hours and/or 8 hours.
Fig. B..:5-f. Reasonable cause drug and reasonable Civil Penalty Certificate suspicion alcohol testing Action 

### (1) Failure to drug and/or alcohol test each employee who Maximum performs a safety-sensitive function and who is reasonably · suspected ofusing a prohibited drug and/or misusing alcohol



### 8-32

### 10/01/07 2150.38

Fig. B-5-f. Reasonable cause drug and reasonable Civil Penalty Certificate suspicion alcohol testing cont. Action (2) Reasonable cause drug testing ofindividuals without a Moderate reasonable and articulable beliefthat the employee is using a prohibited drug on the basis ofspecific, contemporaneous physical, behavioral, orperformance indicators ofprobable drug use (3) Reasonable suspicion alcohol testing ofindividuals when Moderate reasonable suspiCion ofalcohol misuse has not been determined by a trained supervisor based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech orbody.odor ofthe employee (4) Failure to prepare and maintain on file a record stating the Moderate**rea~ons** 

### the reasonable suspicion alcohol test was not administered within 2 hours and/or 8 hours (5) Failure to remove a safety-sensitive employee who is Maximum under the influence ofor impaired by alcohol ' 

### Fig. B-5.:.g. Return to duty drug and alcohol testing Civil Penalty Certificate Action (I) 

### Failure to conduct a return-to-duty drug test before an Maximum individual is returned to perform a safety-sensitive function afterthe individual refused to submit to a required drug test or received a verified positive drug testresult (2) Failure to receive a verified negative return to duty drug Maximum test result for an individual priorto the individual's return to a safety-:-sensitive function (3) Failure to administer a return-to-duty alcohol test on an Maximum individual who engaged in prohibited conduct priorto

. returning him or her to a safety-sensitive function. (4) Failure to ensurethat the employee has received an alcoho Maximum testresult with an alcohol concentration ofless than 0.02 on a return-to-duty test prior to resuming the performance ofsafetysensitive duties
Fig. B-5-h. Follow-up drug and alcohol testing Civil Penalty Certificate Action (I) 

### Failure to implement a reasonable program of Maximum unannounced testing for each individual who has been hired to perform or who has been returned to the performance ofa safety-sensitive function afterrefusing to submit to a test, receiving a verified positive drug test result, or engaging in prohibited alcohol conduct (2) Failure to administer at least six follow-up tests in the first Maximum 12 months following the return to duty ofan employee (3) Failure to discontinue follow-up testing after 60 months Moderate from the date the individual returned to a covered function (4) Failure ofa substance abuse professional to determine the Maximum number and frequency offollow-up tests



### B-33

## EXHIBIT 

# My

# FAA '?-Q\'V 

# I A

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FAR Certificate Type. Certificate Status Certificate Issue Date Certificate Status Date Certificate Validation Date Certificate Expiration Date Last DO Update Date Previous Designator Previous Certificate Number MR3A020K

EA05

135
Air Carrier

Active (A)

07/08/2002

07/0812002

06/10/2011

01/05/2012



## I No 

## I Description Operation jvalue ODR

11! Kinds of Operation
Types of Operation On-Demand Rotocraft (PAX/cargo) Single Pilot Operator FAR-135 On-Demand FAR-135-9 Passengers Orless VFROnly Rotorcraft



### ... FA.R:1:3li Areas of Operation Excemptions Authorized Deviations Authorized 

### · · · Fie1iabi1i1Y · Program Authorized No

No

No

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. . ailworthiness Airworthiness maintenance Agreement program not required Hazardous Materials No



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## Analysis for FSAS/T AP Contact Us
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## 1118/2012 2:28:32 PM

Updated. December 28. 2011 

### Readers 

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### .!ii!lfl!!!Jijj STRU

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Analysis for FSAS!fAP Client Version 3.41 (12/2812011), Server Version 4.1 (07/l3120ll), Microsoft ASP.NET 3.5



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## Page 3 of3

### 02/13/2012 13:26 FAX 3012942525 

### Aviation Law Experts 1410001



### U.S. 

## DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

IN THE MATTER OF

AIR AMBULANCE BY AIR TREK, INC.

FAA DOCKET NO. [TO BE 

## ASSIGNED] (Civil Penalty Proceeding)



## FDMS NO. 

## FAA-2011-1003

RONNIE A. 

## YODER CHIEFADMINISTRATIVE LAW JuDGE

DRAFT ORDER ESTABLISHING JOINT SCHEDULE

Pursuant to Rule 13.217(d), undersigned counsel hereby submits the following draft order
establishing an agreed procedural schedule to be signed by the Honorable Ronnie A. Yoder,

ChidAdministrative Law Judge, and filed with the hearing docket clerk.

(a)

1. 

### Stipulations

- Stipulations, by and between the parties, shall be filed on or

before June 

### 15, 2012.



### n. List ofwitnesses and a summary oftheir proposed testimony- a list of

witnesses and a 

### summary oftheir proposed testimony shall be exchanged

on or bdore 

### May 15, 2012.


### (b) 

### Exchanging exhibits and discovery

- Exchange ofexhibits to be introduced at the
hearing; a list ofwitnesses that may be called at the hearing; and all other discovery shall

be completed no laterthan April 13, 2012.

### 02/13/2012 13:26 FAX 3012942525 

### Aviation Law Experts 1410002



## PROPOSED HEARING SITE

The hearing shall take place in Washington, D.C.



## PROPOSED HEARING DATE

A two-day hearing shall take place on July l6-17, 2012.



## SO ORDERED.

Ronnie A. Yoder ChiefAdministrative J,aw 

## Judge

202/13/2012 13:26 FAX 3012942525



## Federal Aviation Administration 800 Independence Avenue, S.W. Washington, 

## D.C. 20591 Aviation Law Experts



## SERVICE LIST ORIGINAL & 

## ONE COPY

Attention: Hearing Docket Clerk, AGC-430 Wilbur 

## Wright Building-Suite 2WI000



## ONE COPY

GREGORY S. WINTON, 

## Re8pondent's Counsel THE AVIATION LAW FIRM One Research Court, Suite 450 Rockville, 

## MD 20850 TEL: (301) 294-8550 fAX: (30 1) 294-2525

STEPHEN 

## W. BRICE, ESQ., Complainant's Counsel 

## FEDERAL AVIATION ADMINISTRAllON Office 

## ofthe Regional Counsel FAA Eastern Region, AEA-7 1Aviation Plaza, Room 561 Jamaica, 

## NY 11434 Tel: 718 553-3268 Fax: 718 

## 533-5699

The Honorable Ronnie A. Yoder, 

## Chief Administrative Law Judge 

## U. S. Department ofTransportation Office ofHearings, M-20, Room El2-320 1200 New Jersey Ave., S.E

.. Washington, DC 20590 TEL: 202 366-2142 FAX: 202 366-7536

3 1410003



### I