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 of This Order. This order establishes the Flight Standards Information 

Management System (FSIMS) as the repository of all Flight Standards policy and guidance 

concerning aviation safety inspector job tasks. Technically speaking, FSIMS is a Flight 

Standards directive, which aviation safety inspectors use as the system of record 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 of Changes;· 

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 of policy and guidance for aviation safety inspectors. 

( l) The establishment of FSIMS as an agency directive does not mean we have removed 

the contents of the cancelled directives. We have included the contents of the cancelled orders in 

this directive. 

(2) The functional capabilities of FSIMS, e.g., searches conducted according to inspector 

specialty, etc., have not changed. Rather, to simplify coordination, to eliminate confusion 

between electronic and printed versions of various 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 ) '?.. =I 
t ' 

U.S. Department 

of Transportation 

Federal Aviation 

Administration . 

~!c'l,: 

r;}~-

CertifiG~d~R.eturn Receipt 

File Number: 2004EA91 0073 

Dr. Michael Selig, CEO 

M and R Helicopters LLC 

Office of Aviation Medicine 

2045 Westgate 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 of 49 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 1 on 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 of 49 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 1 of 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: 

M and 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, M and 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, 

tl ~ ""\ -Q ' <:'.--··· ·---

~· • 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 2005.11 
l 

·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 Baker was included In EraMED's drug 

program during his dates of employement: 5-1-2006 to 11-4-2007. 

If you have any questions or concerns please contact me at your 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 M and R Helicopters, LLC's drug and alcohol 

programs. During the inspection, it was identified that 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 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 a telephone 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 of Aerospace Medicine 

FOR OFFICIAL USE ONLY 

~ 

~s \ t-. ..:+---

Public availability to be determined under 5 USC 552 ~O(V 

--
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 West gate Drive 

Bethlehem, P A 1801 7 

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 of the examination. 

A competency I proficiency check is required for operations under the provisions of Federal 

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 of your air carrier operation until satisfactory completion of said check. 

If you 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 of Amendment-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~ 'vJ cl ~offe Dr\re ~& ~ ¢:: 

~~ Stater~. ZipCode \()() 17 

Fee: $70 

\ In compliance with the requirements of the applicable provisions (relating to certificate of amendment), the 

undersigned, desiring to amend its Certificate of Limited Partnership/Organization, hereby certifies that: 

I. The name of the limited ~~p/limited liability compariy is: 

f!\ & R Hiltc IS. LLC. 

2. The date of filing of the original Certificate of Limited Partnership/Organization: 4-pr./ ] ) ;<cf) ( 

3. Check, and if appropriate complete, one of the following: 

~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 the following: 

0The amendment shall be effective upon filing this Certificate of Amendment in the Department of State. 

[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 IIIII Iiiii IIIII 111111111111111 IIIII 11111111111111 I Iii 

T0825311005 

'--------- \' \-z-
t 

DSCB: 15-8512/8951-2 

5. Check if the amendment restates the Certificate of Limited Partnership/Organization: 

~he restated Certificate of Limited Partnership/Organization supersedes the original Certificate of Limited 

Partnership/Organization and all previous amendments thereto. 

IN TESTIMONY WHEREOF, the undersigned limited 

partnershipl!imited liability company has caused this 

Certificate of Amendment to be executed this 

~day of~() 

Name of Limited Partnership/Limited Liability Company 

()i:ia~~~ 

itle < 

NOTARIAL lEAl. 

USAA em . Notary Public 

I!THLEHEM CITY, UiHIGH COUNn' 

My Commllllon lxptr., May 10, 2011 
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.. --~-~-----···· -- ----- --- ··-~- --- .. .. . ... -· ···---- .. ------------ .. - -· ... . -... - ·-·-····! 

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 I z..__O I 2.. + 

~·· 

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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 & R Helicopters, 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 R Helicopters, 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~ R Helicopters, LLC. will not permit 

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

sensitive function. 

135.255(a) M & R Helicopters, 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 1 21 , no later than the start of operations under 

FAR 1 3 5. All M 8t R Helicopters, 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 R response 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 - TAKE JN OF 2150.38 

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 

of Transportation 

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 of these operations specifications is the holder of Air Carrier Certificate Number 

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 of Transportation. 

The certificate holder shall conduct these kinds of operations in accordance with the specific 

authorizations, limitations, and procedures in these operations specifications and all appropriate Parts 

of the CFR. 

b. These operations specifications are effective as of the "Date Approval is effective" listed in each 

paragraph and shall remain in effect as long as the certificate holder continues to meet the requirements 

of Part 119 as specified for certification. 

c. The certificate holder is authorized to use only the business name which appears on the certificate to 

conduct the 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 of company officials using the applicable 

authorizations in these operations specifications, without obtaining a Letter of Authorization, provided 

the flights are not conducted for compensation or hire and no charge of any kind is made for the 

conduct of the flights. 

Print Date: 3/29/2008 A001-l Certificate No.: MR3A020K 

M AND R HELICOPTERS LLC 
.. ¥4' . - 5 -# s.s .. ; 

U.S. Department 

of Transportation 

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 of the Administrator. 

ALOTTA, FRANK Principal Operations Inspector 

g. !if-t&# 

EA05 

3. Date Approval is effective: 2/4/04 Amendment Number: 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 

of Transportation 

Federal Aviation 

Administration 

Operations Specifications 

A449. Antidrug and Alcohol Misuse Prevention Program HQ Control: 

HQ Revision: 

01/22/04 

000 

a. The certificate holder who operates under Title 14 Code of Federal Regulations (CFR) Part 135 

certifies that it will comply with the requirements of 14 CFR Part 121 Appendices I and J and 

49 CFR J>azt 40 for its Antidrug and Alcohol Misuse Prevention Program. 

b. Antidrug and Alcohol Misuse Prevention Program records are maintained and available for inspection 

by the FAA's Drug Abatement Compliance and Enforcement Inspectors at the location listed in Table 1 

below: 

Table 1 

Location of Antidrug and Alcohol Misuse Telephone Number: 

Prevention Program Records: 

Address: 2045 Westgate Drive (610) 769-7000 

Address: 

City: Bethlehem 

State: PA 

Zip code: 18017 

c. Limitations and Provisions. 

(I) Antidrug and Alcohol Misuse Prevention Program inspections and enforcement activity will be 

conducted exclusively by the Drug Abatement Division. All questions regarding thls program 

should be directed to the Drug Abatement Division. 

(2) The certificate holder must implement its Antidrug and Alcohol Misuse Prevention Programs fully 

in aCcordance with 14 CFR Part 121, Appendices I and J, and 49 CFR Part 40. 

(3) The certificate holder is responsible for ensuring that its contractors who perfonn safety-sensitive 

work for the certificate holder are subject to Antidrug and Alcohol Misuse Prevention Programs. 

( 4) The certificate holder is responsible for updating this operations specification when any changes 

occur in the following: 1 '' ',. • . ,· •• , ., ... , . 

(a) Location or phone number where the Antidrug and Alcohol Misus(f Prev.ention Records are 

kept (as listed in Table 1 above).· · · · . '· 

(b) If the certificate holder's number-·ef safety..sensitive employees goes to ·so and above, or falls 

below 50 safety-sensitive employees. C J;;_i "" .: : .. :· .; .• :· 

(5) The certificate hol.der with 50 or more employees performing a safety-sensiti~e function on 

January 1 of the calendar year must submit an annual report to the Drug Abatement Division ofthe 

FAA. The certifica~ holder with fewer than 50 employees performing a safety-sensitive function 

on January 1 of any Calendar year must submit an annual report upon request of the Administrator, 

as specified in the regulations. 

The certificate holder has fewer than 50 safety-sensitive employees. 

Print Date: 8/15/2005 A449-l Certificate No.: MR3A020K 

M AND R HELICOPTERS LLC 

FOR OFFICIAl USE ONLY 

Public availablfi1y to be determined under 5 USC 552 
U.S. Department 

of Transportation 

Federal Aviation 

Administration 

Operations Specifications 

1. Issued by the Federal Aviation Administration. 

2. These Operations Specifications are approved by direction of the 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 in this paragraph. 

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

.. __ , . . 

. ·~ ·~ 

. '\ ' 

.)· .. . . . . ·,. . .' •. ~~~-

Print Date: 8/15/2005 A449-2 Certificate No.: MR3A020K 

M AND R HELICOPTERS LLC 

_ FOR OFFICIAL USE ONLY 

Public availability to be determined under 5 USC 552 
U.S. Department 

of Transportation 

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 CPR Part 135 using the aircraft 

identified on this operations specification. 

Serial No. Aircraft M!M/S 

4056 BELL-206-B 

1. Issued by the Federal Aviation Administration. 

2. These Operations Specifications are approved by direction of the Administrator. 

Henninger, Gerald Principal Maintenance Inspector EA05 

3. Date Approval is effective: 12120/04 Amendment Number: 2 

4. I hereby accept and receive the Operations Specifications in this paragraph. 

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

.( 

•,"~ \ .._ "\ ' : ' I 

.· .... 

Print Date: 8/15/2005 . D085-l Certificate No.: MR3A020K 

M AND R HELICOPTERS LLc 

FOR OFFICIAL USE ONLY 

Public availability fo be determined under 5 USC 552 

EXHIBIT 

A- 3 
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HR. MIN. HR. MIN. 

TOTAL FLIGHT TIME 

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1) Replaced Main sbip batt 

40057588 life expired. 

2) Instaued new SIN 4021< 

Concorde batteries dater 

3) Next inspection due 3/21 

rev. J. Concorde batterh 

4) Ops checked good 

5) Return to servic~ . / 

Autholized Signature: 

~ A 

1 ) Torque checked CIW on 

Inspections 5-00-00 pag 

2.) Re-safetyed lock plate a 

3.) Rautntos'7~ 

Authorized S1gnature: 

E1 

A 

7-~4-2008 N98CM ACIT: 1553..0 Hrs Cycles:2183 Main Rotor track and ba~ 

cneck lisf # 4300 and Bell206 Maintenance Manual Chapter 65. TraCk ar 

· 2000 unit SN: 2575. Lateral balance 0.081PS, Vertical balance 0.15 Main 

KJAS. AU mOOsuremenls ~· n~nls uired.

7-,_ ,.~.t 

'·. r~ . r ·-T· T--
EXHIBIT 

206 He.licopter N98CM M & R Helicopters, LLC 

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Public availability to be determined under 5 USC 552 
TIME PILOT -Pass ROUTE 

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DATE HOBBS-5 HOBBS-F =l ;· 

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FOR OFFICIAL USE ONLY 

Public availabilfiy to be determined under 5 USC 552 --
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DATE HOBBS-S HOBBS-F ~E PILOT-Pass ROUTE 

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SELIG, MICHAEL 

SELIG, MICHAEL 

. ~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 

Location: M & R HELICOPTERS - MRH001 

Mode: FAA 

,.,...,...,..,....,.~,.....,...,..,......,--...,.-.::.,...·::r::-.~""~!n,...,.,:,....!t·,..,·· ... --: .'""· .,.--.-... '""':>-.-.. ------r-...,...,.~~~~=,..,.,..,~~~.,.,...,.,.,.....,.,; :: !!:·'. 

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SELIG, MICHAEL 

SELIG, MICHAEL ' 

SELIG, MICHAEL 

.,_.,. <J ~ -.· 

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 

Report Version: 1.0 

. . FOR OFFICIAL USE ONLY 

Pub/tc avaffabllily to be determined under 51/SC 552 

EXHIBIT 

A-/; 

1 of6 
emplno 

XXX-XX-Gl SELIG, MICHAEL 

SELIG, MICHAEL 

name 

. . . ' . . 

SELIG, MICHAEL 

.. name ·. ·~·~··- '( ·:.:, ·. . . 

SELIG, MICHAEL 

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 USE ONLY 

.,. -; r 

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

Report Version: 1.0 Public avaKability to be determined under 5 USC 552 

·,i,. 

2of6 
SELIG, 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 

. FOR OFFICIAL USE ONLY 

Public availability to be determined under 5 usc 552 

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 - MRH001 

Mode: FAA 

, ~• •'"-•- w w ~ •• , , -• w,••J w,••w •·~ ,., ~· 

. . . . . ... ·.: .. :i..,: . . '" :· . 

.Run on: 7/21/2009 3:43:31 PM 

Report Version: 1.0 

. · FOR OFFlCtAl USE ONLY 

Public avaUabinty to be determined under 5 USC 552 4of6 
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. 

2009 

Location: M & R HELICOPTERS - MRH001 

Mode: FAA 

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

name. 

Location: M & R HELICOPTERS_.-:.fv1RH001 

Mode: FAA 

p~Uyear 

2009 

Location: M & R HELICOPTERS- MRH001 

Mode: FAA 

·~: '· I I 1:,. 

...... ,, ~--· ......... -:.·. ·-....... ···· -·····- ~··•·: . ...... : -·- . -.. . Pl!llyear 

SELIG, MICHAEL 2009 

FOR OFFICIAl USE ONlY 

Report Version: 1.0 Public availability to be determined under 5 USC 552 Run on: 7/21/2009 3:43:31 PM ' . 5 of6 
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 

. ' .. 

FOR ·OFFICIAl USE ONLY 

• ~ • f 

, . .i ·; • 

Run on: 712112009 3:43:31 PM . 

Report Version: 1.0 Public availability to be determined under 5 USC 552 6 of6 
,. ·""·· 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 of this 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 prior to 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 if you 

have questions about these matters. A written statement should include all 

pertinent facts and mitigatilig circumstances that you believe may have a bearing on 

these matters. Send your written statement to: 

Attentjon: Latonya Williams, AAM-862 

Federal Aviation Administration 

Office of Aerospace Medicine 

Drug Abatement Division 

. 1701 Columbia Avenue 

College Park, GA 30337 

hFoffCiFFiCi~rusforftve_arg/headquarters_ affices/avstaffices/aam/drug_alcohov 

Public availability to be determined under 5 USC 55.2 

ONCURRENCES 

fR?UTING SYMBOL 

AAM-862 

rNtTlALS!SIG 

LWilllams 

AT!; 

08/14/2009 

!ROUTING SYMBOl 

INITIALS/SIC 

ATE 

FlOUTING SYMBOL 

NITIALSISIG 

OATE 

ROUTING SYMBOL 

INrTIAl.SISIG' 

ATE 

ROUTING SYMBOl 

INmALSISIG 

. 

DATE 

ROUTING SYMBOl 

NITIALSJBIG 

f'ATE 

ROUTING SYMBOL 

INmALSISIG 

!DATE 

ROUTING SYMBOL 

INITIALSISIG 

ATE 

J js 

''.:-* 
...... ' 

If we do not hear from you within the specified time, our report will be processed 

without the benefit of your statement. 

Sincerely, 

~ 

I 11tl8Ri'f'P ft. 

e.1rlf.I.WM 

Latonya Williams, Inspector 

Eastern Compliance and Enforcement Center 

Drug Abatement Division 

Office of Aerospace Medicine 

... l\\\' ·~;J\.'. 

,• .. 

~ ...... •,, .. - ...... 

\- :. . ~: ·~\ • .. :, ·. ' . 

'. 1.._.~·. ~~:·l .. 

. ..... , ....... ·- ...... ~ 

... ..... , 

2 

U.S. Department of Transportation fQR OFFICIAL USE ONlY Federal Aviation Administration 

Public qvailabi!Hy to be determined under 5 USC 552 
"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 of the mallpleca, 

or on the front If space permits. 

1. Miele Addressed to; 

Dr. Michael B. Selig 

President 

M and R Helicopters 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 (r1ansfer from servlcs/abel} 

PS Form 3811, February 2004 Domestic Return Recalpt 102595-02-M-1540 1l 

UN IIIII/ ITED Sr. ;li.TES p OSTAL SERVICE 

First-Class Mall 

Postage & Fees Paid 

USPS 

Permit No. G-10 

J 

• ~nder: ~.ease print your name, address, and ZIP+4 in this box • 

.... -: 0 Federal A~iation Ad.Jtllnts;ation· ....... . -t .• 

~:~-.·:r~ --~- .... __ 

Industry Drug & Alqqhol Programs ·- · · . .,.,...., 

:::-. ~.'.:. ("T-~, 1701 Columbia Avenue J'·' ·• I 

[;j··- I LJ'') 

C);t,:S N College Park, GA 30337 

~;".~-~~;: (...!:' 

= A'ii'N: AAM-862/Latonva Williams ·,J·· .. ~:::_ 

c-.n -.. -- = .:·~:i = c--.1 ,, .. -

I ... 

FOR OFFICIAL USE ONlY 

Public availability to be determined unde~ 5 USC 552 
August 29, 2009 

Latonya Williams, AAM-862 

FAA 

Office of Aerospace Medicine 

1701 Columbia Avenue 

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 your letter dated August 14, 2009 and our conversation on 

August 24, 2009 regarding alleged violations, I would like to direct your 

attention and have you refer to my prior correspondence dated July 23, 2009 

that addresses some of the initial items you made me aware of during 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 of maintenance on the DRH aircraft. Scott Richards 

Aviation is located across the street from the Allentown FSDO. 

Also, Edward Baker was continuously engaged in a drug program in his 

-- - -· ·----------·capacity· as -a-full-time-Medivae- Pilot-and A&P-mechanic with Air Methods Inc-, 

prior to and during his performance of maintenance on the DRH aircraft. 

Item Number 2: This is erred because it was determined that drug testing 

protocols were in order with both mechanics via their full-time employers 

FOR OFFICIAl USE ONlY 

J.Di1fc availabiU~ to be determined under 5 usc·~ 
dating back before 2004. 

Please note that the DRH aircraft is located across the street from the 

Allentown FSDO, at Lehigh Valley International Airport. FAA Maintenance 

Inspector, Gerry Henninger, who performs bi-annual records inspections, never 

notified DRHs Director of Operations, Dr Selig of the drug consortium policy 

changes. Perhaps during his last 5 years of inspecting DRH aircraft, Mr 

Henninger was not made aware of policy 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 with you. I have calls into 

FAA officers' Jeff Stooky and Steve Heche for further options as to how to 

become compliant with 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. 

Thank you for your consideration. 

Sincerely, 

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

FOR OFRCtAl ~E ONlY 

?ublfc avnitabiity ro t-e dt~rmined unde~ 5 me 552 
CERTIFICATE OF SERVICE 

I hereby certifY that I have served a true and correct copy of the forgoing 

document(s) upon the following person(s) by regular, first class mail, 

postage prepaid, addressed to the following: 

Latonya V/illiarns, i\.A.l.VI-862 

FAA 

Office of Aerospace Medicine 

1701 Columbia Avenue 

College Par~, GA 30337 

By 

Michael Selig, MD, FACC. 

2816 Orefield Rd 

Allentown<g P~8104 Dated - ;=e:a 

. ?!\ ~ 

FOR OFFICIAL USf ONnr 

1\U(C avc1fability to be determined undef 5 USC 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 letter from 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 the Air Methods DOT Anti-Drug and Alcohol 

·ogram since 11/5/2007. He Is a. pilot who also holds a A&P certlfJcate. however. he Is onder our m~ster . ~ . . . 

ll/29/2010 
tl/ 2 9/2010 10:09PM FAX ~0037/0043 

--------··--·------·----·-------·----·--· - ... - .. --.. -·---·-··------ Page 2 of2 

certificate QMIA253U and does not perform any maintenance under our repair station certificate QMlR253U, 

other and is operator. not authorl>ed or contracted by Air Methods to do any outside maintenance for M&R Helicopters or any 

Please reply to let me know that you 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 Aviation Administration 

Mr. Stevenson, 

This is regarding our telephone conversation on the 15th of October 2010 for maintenance 

performed on Bell 206B3 registration number N98CM on the dates you requested 

November 2"d and 18th 2007 and on July 24th 2008. 

On the 2"d of November I performed required Main Rotor Hub strap replacement due to 

24 month manufacturer retirement requirements and on the 18th of November I performed 

the required Main Rotor Retention Nut re-torque check for this maintenance. I was 

compensated ·via check in the amount of $880.00 Dollars. 

On July 24th 2008 I performed a main rotor track and b~aJ:l~ check per the. request of the 

aircraft owner and for this I was compensatt!d via cheddn'the mnount of$200.00 

Dollars. ,.. .... :: '_._-.".:_. _._.;·.:: 

~incer~ly, -· 

Edward L. Baker III 

A&P 3458278 

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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: Final rule. 

SUMMARY: As a result of a number of 

years of experience inspecting the 

aviation industry's Antidrug and 

Alcohol Misuse Prevention Programs, 

the FAA is clarifying regulatory 

language, increasing consistency 

between the antidrug and alcohol 

misuse prevention program regulations 

where possible, and eliminating 

regulatory provisions that are ·no longer 

appropriate. The major changes the FAA 

is making include the requirements for 

submission of antidrug plans and 

alcohol misuse prevention certification 

statements by employers and 

contractors; and the timing of preemployment testing. The effect of these 

changes is to improve safety and lessen 

administrative burdens on the regulated 

public. 

DATES: These amendments become 

effective February 11, 2004. 

FOR FURTHER INFORMATION CONTACT: 

Diane]. VVood,Manager,Drug 

Abatement Division, AAM-800, Office 

of Aerospace Medicine, Federal 

Aviation Administration, 800 

Independence Avenue SVV., 

VVashington, PC 20591, telephone 

number (202) 267-8442. 

SUPPLEMENTARY INFORMATION: 

Availability of Rulemaking Documents 

You can get an electronic copy using 

the Internet by: · 

(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 copy by submitting 

a request to the Federal Aviation 

Administration, Office of Rulemaking, 

ARM-1, 800 Independence Avenue 

SVV., VVashington, DC 20591, or by 

calling (202) 267-9680. Make sure to 

identify the amendment number or 

docket number of this rulemaking. 

Anyone is able to search the 

electronic form of all comments · 

received into any of our dockets by the 

name of the individual submitting the 

comment (or signing the comment, if 

submitted on behalf of an association, 

business, labor union, etc.). You may 

review DOT's complete Privacy Act 

statement in the Federal Register 

published on April11, 2000 (Volume 

65, Number 70; Pages 19477-78) or you 

may visit http://dms.dot.gov. 

Small Business Regulatory Enforcement 

Fairness Act 

The Small Business Regulatory 

Enforcement Fairness Act (SBREF A) of 

1996 requires FAA to comply with 

small entity requests for information or 

advice about compliance with statutes 

and regulations within its jurisdiction. If 

you are a small entity and you have a 

question regarding this document, you 

may contact its local FAA official, or the 

person listed under FOR FURTHER 

INFORMATION CONTACT. You can find out 

more about SBREF A on the 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 of comments received. 

Background Information About the Drug 

and Alcohol Rules 

The Antidrug and Alcohol Misuse 

Prevention Program regulations are part 

of a long history ofF AA actions to 

combat the use of drugs and alcohol in 

the aviation industry. For many decades 

the FAA has had regulations prohibiting 

crewmembers from operating aircraft 

under the influence of alcohol or drugs 

that impair their ability to operate the 

aircraft. Because of the broad use of 

drugs in American society, the FAA 

adopted rules in the 1980s to require 

testing of persons performing safety 

functions in the 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 

Transportation Employee Testing Act of 

1991 (49 U.S.C. 45101, et seq.) (the Act), 

requiring d,rug and alcohol testi:q.g of air 

cqrrier employees. To conform with the 

Act, the Office of the Secretary of 

Transportation (OST) coordinated the 

efforts of Department of Transportation 

(DOT) modal administrations to address 

the issue of alcohol use in the 

transportation industries. On August 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 with revised 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 drug use and alcohol 

misuse in the aviation industry. From 

1990 through 2001, aviation employers 

required to report have told the FAA 

that approximately 19,400 positive preemployment test results have occurred. 

Hence, pre-employment testing has 

proven to be an effective detection tool 

for the aviation industry. 

In addition to these pre-employment 

test results, 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 900 breath alcohol test 

results of 0.04 or greater. This is further 

evidence of the success of the 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 of the 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 of certification 

statements for alcohol misuse 

prevention programs. The FAA is also 

clarifying regulatory language, · 

increasing consistency between 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 of Proposed 

Rulemaking (NPRM), Notice 02-04 (67 

FR 9365). We proposed clarifying 

regulatory language, increasing 

consistency between the antidrug and 

alcohol misuse prevention program 

regulations where po.ssible and 

eliminating regulatory provisions that 

were no longer appropriate. We 

proposed these changes to improve 

safety and lessen administrative 

burdens. The comment period 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 of public 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 or by any tier of a contract for 

an employer is subject to testing. 

Several commenters stated that this was 

more than a clarifying change. The 

commenters suggested that, because 

more people would have to be tested, 

there would be an economic impact 

from this proposed change. In order to 

gather more information on the 

concerns expressed by the commenters, 

the FAA is not adopting the proposed 

revision in this 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 in this final 

rule. 

This amendment also replaces "Office 

of Aviation Medicine" with "Office of 

Aerospace Medicine," wherever it 

appears in the regulations. 

Charts Summarizing the Changes 

The following charts summarize the 

principal and clarifying changes to 

appendices I and J to 14 CFR part 121. 

Where the proposed change is modified 

in this final rule, the FAA's reason. is 

discussed in this 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 of Comments Received 

General Overview 

The FAA received approximately 30 

comments in response to Notice 02-04, 

including comments from the Air 

Transport Association of America 

(ATA), Regional Airline Association 

(RAA), National Air Transportation 

Association (NATA), Airline Pilots 

Association, International (ALP A), and a 

joint filing by the Aeronautical Repair 

Station Association (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: 

"Applicable Federal Regulations" and 

"Falsification." These paragraphs. were 

designated "D." and "E." respectively. 

Proposed Paragraph D. included a list of 

Federal regulations dealing with the 

antidrug and the alcohol misuse 

prevention progranis. Paragraph E., 

"Falsification," proposed to specifically 

prohibit falsification of any logbook, 

record, or report required to be 

maintained under the regulations to 

show compliance with appendix I. 

Similar language 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 

In Notice 02-04, the FAA proposed to 

change the term "Contractor company" . 

-to "Contractor" to emphasize that a 

contractor can be an individual or a 

company who contracts with an 

aviation employer .. 

The FAA received one comment 

regarding the proposed change from 

"Contractor company" to "Contractor." 

The commenter believed that the term 

"Contractor company" was adequate. 

The FAA has determined that the 

proposed clarification more clearly 

articulates the intended meaning of the 

term. Therefore, we are adopting the 

change as proposed. 

Employee 

In Notice 02-04, the FAA proposed to 

change the definition of "Employee" to 

clarify that an employee is either a 

person hired, directly or by 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 

considered to be an employee of the part 

121 certificate holder for purposes of 

this appendix." This sentence was 

included at the inception of the drug 

testing regulations, when part 121 

certificate holders were required to 

implement drug testirig earlier than part 

135 certificate hqlders. Because all 

existing part 121 and part 135 certificate 

holders have implemented the 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 

In Notice 02-Q4, the FAA proposed to 

change the definition of "Employer." 

The proposed change was intended to 

make it clear that no employer can use 

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 under the 

contractor's FAA-mandated antidrug 

program and is performing a safety-· 

sensitive function on behalf of the 

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 of its . 

employee's activities for Employer B. 

One problem arising from this was that 

if Employer A terminated the employee, 

Employer B might not know that the · 

employee was no longer covered by 

Employer A's drug testing program. 

Another problem was that, in the 

event of an accident while an employee 

was working for Employer B, Employer 

B could not have post-accidenttested 

the employee because the employee was 

not included in Employer B's drug 

testing program. Employer A might not 

have been aware of the need to test the 

employee, or it might not have agreed to 

test the employee if the employee had 

not been performing a safety-sensitive 

function within the scope of 

employment with Employer A. In 

adopting the original rule, it was not the 

FAA's intent to create a situation where 

a person performing a safety-sensitive 

function could avoid being tested. With 

adoption of this change, employers will 

only be permitted to rely on companies 

with whom they have contractual · 

relationships to cover testing of their 

employees. The FAA received comments from 

· several submitters, including ARSA and 

RAA, on the definition of "Employer." 

Two commenters approved of the 

proposed definition of employer. One of 

the commenters stated that the proposed 

definition clarified the relationship 

between employees and employers. 

Also, this commenter noted "that the 

stated problems with 'moonlighting' and 

the adverse experiences that it has 

generated over the past years justify the 

blanket elimination of the practice of 

moonlighting. * * * . 

ARSA noted that the proposed 

elimination of the moonlighting 

exception would cause great difficulty 

because, if a non-certificated 

subcontractor did not want to have its 

own program, it would need to be 

covered by the programs of all of the · 

contractors for whom it performed 

safety-sensitive work. ARSA believed 

that many of these companies would 

refuse to establish programs of their 

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 the beginning of the drug 

and alcohol programs, companies have 

made these choices. If a certifi{;ated or 

non"certificated contractor has its own 

program, it does not need to be included 

in the program of each company for 

whom it works. 

In Notice 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 if that contract 

employee is subject to the requirements 

of the contractor's FAA-mandated 

antidrug program and is performing 

work within the scope of employment 

· with the contractor." RAA 

recommended that the FAA delete the 

phrase "and is performing work within 

the scope of employment with the 

contractor." RAA.believed that the 

phrase places a burden on an employer 

to determine whether the work it 

requires of the contract employee is 

substantially similar to the work the 

employee performs for the contractor. 

RAA believed the language was an 

attempt to remedy a post-accident 

testing issue, and in this light, RAA 

found the language "within the scope of 

employment" to be "vague, ambiguous, 

,subject to multiple interpretations and 

should be deleted." Instead, RAA 

proposed that the language of postaccident testing be amended to allow an 

· employer to post-accident test a contract 

·employee. · 

The examples provided in Notice 02-

04 may have confused some 

commenters. The language "in the scope 

of employment" was not intended to be 

limited to post-accident testing. Upon 

further review of the proposal, we 

decided to include additional language 

to better explain that "within the scope 

of employment" 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 intended to 

ensure that an individual performing a 

safety-sensitive function for an 

employer is covered by either the 

employer's program or the program of 

the contractor when the individual is 

performing work for the employer 

within the scope of his 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. Under this final rule, if. 

an individual is "performing a safetysensitive function on behalf of that 

contractor (i.e., within the scope of 

employment with the contractor)," then 

the contractor is fully knowledgeable of 

what work the individual is doing, and 

the contractor can, therefore, remove 

from service any individual who tests 

positive while working for a client. This 

way, the regulation permits the 

employer to use an individual without 

directly covering him or her, but also 

. ensures that the contractor will be in a 

position to know who is working where, 

so that safety and individual privacy are 

correctly balanced should a positive test 

result be received. 

Two colhmenters had concerns. about 

ensuring that contractor employees are 

actually covered by the contractor's 

program. One commenter suggested that 

"language be added to the final rule to 

require documentation that a contract 

employee is enrolled in the 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 on file at their facilities or 

whether an electronic means such as an 

updated listing that the FAA could 

maintain would be 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 the regulation does 

not require specific documentation to be 

kept on file, the employer remains 

responsible for demonstrating that it has 

ensured that it has only used a contract 

employee who is included under the 

contractor's testirig programs. In the 

past, the FAA's Drug Abatement 

Division maintained an Internet Web 

site with a list of aviation companies 

that had approved drug and alcohol 

testing programs. The intent of this 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 on this list 

was current only at the time the list was 

placed on the 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 

company had implemented or 

continued to implement its drug and 

alcohol testing programs. Therefore, the 

information could not be 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 meet this 

.requirement on a· continuing basis in 

any manner that is practical and 

effective for each particular emJ>loyer. 

Another commenter requested that 

the FAA include within the rule text 

itself, the examples provided in the 

preamble to Notice 02-04. The FAA 

considered this proposal and decided 

that including examples in the 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 

currently has a "moonlighting"· 

employee performing a safety-sensitive 

function is not required to conduct a 

pre-employment test on the employee. 

However, the employer must include 

the employee under its antidrug and 

alcohol misuse prevention programs. 

With the effective date of this final rule, 

the "moonlighting" exception is 

elimhiated and the employer may not 

hire or transfer any employee into a 

safety-sensitive function before the 

employer conducts a pre-employment 

test on the employee and receives a 

negative drug test result on the 

employee. In addition, one of the 

commenters stated that as a consortium 

administering drug and alcohol services, 

he has noticed that§ 135.1(c) operators 

do not read and comply with part 135. 

The commenter recommended 

addressing this concern by adding the 

term "scenic aircraft operations;, in the 

definition of employer when§ 135.1(c) 

is mentioned. 

The FAA has determined that it is 

only necessary to reference§ 135.1(c) to 

describe these employers. Section 

135.1(c) refers to "any person or entity 

conducting non-stop sightseeing flights 

for compensation or hire in an airplane 

or rotorcraft that begin and end at the 

same airport and are conducted within 

a 25 statute mile radius of that airport." 

"Scenic aircraft operations" does not 

accurately describe these employers. A 

more elaborate description would not 

better notify these commercial operators 

of their regulatory duty to 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, 

which require these operators to 

conduct testing under part 121, 

appendices I and J. We have concluded 

that the regulatory requirements are 

adequate as stated in the existing 

regulations. Consequently, we are not 

adopting the commenter's suggestion on 

this issue .. Therefore, the FAA is adopting the 

definition of employer as proposed, 

with minor editorial changes for clarity. 

Other Definitions 

We received two comments that 

suggested we clarify the definition of 

"Safety-sensitive." One of the 

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 the reader must be able 

to understand the phrase explicitly." 

The commenter also stated, "without a 

clear definition of performing 

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 must be 

tested. It is :not necessary to address 

specific examples of the tasks performed 

within safety-sensitive {unctions. 

Instead, the rule identifies the duties 

that are subject to drug and alcohol 

testing because of their relationship to 

aviation safety. 

In requesting 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 of these 

"individuals 'release-to-service' the 

aircraft engine and/or its components 

·after this maintenance is performed." 

The commenter noted that "performing 

maintenance is a routine procedure on 

an aircraft engine," and asked when this 

becomes safety-sensitive. In addition, 

the commenter questioned when an 

employer should start drug and alcohol 

testing. . The commenter seems to be confusing 

performance of maintenance with 

release to service. In fact, release to 

service is only one aspect of the broader 

. concepts of maintenance and preventive 

maintenance, which are defined by the 

FAA in 14 CFR § 1.1, and 14 CFR part 

43. Maintenance and preventive 

maintenance are not defined differently 

for the purposes of drug and alcohol 

testing. Consequently, the FAA has 

determined that a definition for 

"Performing maintenance" is not 

necessary. 

In the course of discussing "Safetysensitive" and "Performing 

maintenance" the commenter noted that 

manufacturing duties are "just as safetysensitive, if not more so" than 

maintenance duties. The commenter 

questioned why the FAA does not 

require drug testing for manufacturing 

duties. · 

· The purpose of this rulemaking was 

not to add or remove categories of 

safety-sensitive employees. Any changes 

to the types of safety-sensitive 

employees who must be subject to 

testing would need to be accomplished 

by notice and comment rulemaking 

procedures. The FAA did not propose 

any such changes; therefore, it would 

not be appropriate to consider the 

commenter's issues in this·rulemaking. · In requesting 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 can have 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 of random testing, see 

Section V.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 

when pre-employment testing needs to 

be done for a person who performs 

services as a volunteer, through barter, 

or in some other manner that may not 

seem to include a clear "hiring event." 

This commenter also suggested that we 

"specifically prohibit the performance 

of safety-sensitive duties by an 

applicant or as part of the application 

process." 

The FAA 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 of this 

definition is not a substantive change, 

rather it is a clarification to ensure that 

the new pre-employment testing · 

requirement does not inadvertently 

eliminate anyone who was required to 

submit to pre-employment testing under 

the 1994 provision. The FAA has 
Federal Register/Val. 69, No. 7/Monday, January 12, 2004/Rules and Regulations 1845 

determined that the rule language and 

the new definition of hire have 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 Must Be Tested 

In Notice 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 on the safety-sensitive duties 

that the individual performs rather than 

employment status (full time, part time, 

temporary, or intermittent). The . 

proposed language was not intended to 

change the current rule's scope. 

We received several comments 

regarding this clarification, including a 

. comment from RAA. Some commeilters 

supported the clarification, while. others 

expressed concerns. RAA stated that the phrase 

"regardless of the degree of 

supervision" confuses the reader on 

exactly which individuals are required 

to be tested. RAA saw this language as 

broadening the scope of coverage 

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 any task affecting the 

aircraft is reviewed and signed off by 

another individual licensed to perform 

a safety-sensitive function. RAA felt that 

this change significantly broadened the 

scope of testing for many air carriers 

· and would increase their expenses. 

One commenter stated that the change 

makes it clear that the determination of 

who needs to be in a testing program is 

based on the safety-sensitive duties the 

individual performs. The commenter 

noted, however, that "helpers" are not 

mentioned in the regulatory text and 

that this omission could cause some 

confusion. 

Another commenter believed that the 

rule change would require a mechanic's 

helper, who is supervised by a 

maintenance technician, to be covered 

by the drug and alcohol testing 

requirements. · . The FAA's drug and alcohol testing 

regulations have always required testing 

of any employee who performs a safetysensitive function regardless of the 

degree of supervision. Communications. 

with the aviation industry, as well as 

compliance inspections and 

investigations, show that employers do 

not always understand which 

employees must be tested. Therefore, 

the FAA is specifying that the testing 

obligations apply to any individual who 

is full-time, part-time, temporary, 

intermittent, or in a training status,. if 

that individual is performing a safetysensitive function. The revision does 

not change the scope of the regulation, 

it merely clarifies that any employee 

performing a safety-sensitive function 

must be tested even if that employee is 

being supervised during the 

performance of the safety-sensitive 

.function. 

Section Til lists safety-sensitive 

functions and it does not list job titles. 

The determination of who should be 

tested is not based on the title of the 

position or the degree of supervision, 

but the 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 helper in another company 

might perform safety-sensitive functions 

and, therefore, must be subject to 

testing. The revision does not broaden 

the scope of testing 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 on pre-employment 

testing stated that,. "in small companies 

especially * * * an individual could 

begin to perform safety-sensitive duties 

(without being formally transferred into 

a safety-sensitive position). Possible 

examples include a parts warehouseman 

who performs maintenance on an asneeded basis or a reservations clerk who 

is trained to do weight and balance 

calculations." 

The FAA has considered the 

commenter's concerns. However, we 

,have not adopted the language proposed 

by the commenter because we believe 

Section ITI. Employees Who Must Be 

Tested, clearly states that the employer 

must test an employee before allowing 

the employee to accomplish any safetysensitive task, even if the task only is 

accomplished on an as-needed basis. 

For example, a reservations clerk could 

be trained in the s8fety-sensitive duties 

of weight and balance calculations. 

However, the employee would only be 

tested if the employer identifies this 

person as someone who could be called 

upon to perform safety-sensitive duties 

on an as-needed basis. On the other 

hand, if the employer has 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 Testing Required 

A. Pre-Employment Testing 

As discussed earlier, approximately 

19,400 positive pre-employment tests 

have been reported to the FAA in the 

last decade, demonstrating that such 

tests are an effective detection tool. Preemployment testing is directly tied to 

ayiation safety, in that it is a gateway to 

safety-sensitive positions. Failure of a 

pre-employment test is a direct barrier 

to an individual's entry into safetysensitive work. Thus, it is vital that the 

language requiring pre-employment 

testing be as clear as possible in order 

to maximize the efficiency of its use. Originally, the antidrug regulation . 

published in 1988 said, "No employer 

may hire any person to perform a 

function, listed in section m. of this 

appendix, unless the applicant passes a 

drug test for that employer." The 

regulation required pre-employment 

testing before 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-employment testing 

of an individual prior to the first time 

the individual performed a safetysensitive function for an employer 

instead of requiring this testing "prior to 

hiring." Under the 1994 revisions, an 

individual was required to have a . 

verified negative drug test result on a 

pre-employment test prior to performing 

a safety-sensitive function, and the 

employer could not allow the indi~idual 

to perform such a function until the 

employer received the verified negative 

pre-employment test result. 

Communications with the aviation 

industry and enforcement cases have 

shown that, in the absence of the very 

clear "hiring" event, some employers 

have misunderstood the preemployment testing requirement. They 

neglected to conduct a pre-employment 

test and receive a negative test result 

.before allowing employees to perform . 

safety-sensitive functions. In the worst 

cases, this resulted in the performance 

of safety-sensitive functions by 

employees who subsequently tested. 

positive for illegal drug use. Before the 

. 1994 change, misunderstandings were . 

not prevalent. 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 prior to hiring 

an individual for a safety-sensitive 

function. 

In paragraph V.A.2., the FAA 

proposed to require that employers drug 

test employees prior to transferring 

them into safety-sensitive functions. 

I' 
1846 Federal Register/Vol. 69, No. 7 /Monday, January 12, 2004/Rules and Regulations 

This paragraph proposed to clarify to 

the employer that testing is required and 

a negative test result must be received 

before an employee is "hired" for a 

safety-sensitive function, even if that 

"hiring" is simply an internal transfer 

from a nonsafety-sensitive function to a 

safety-sensitive function. 

In paragraph V.A.3., the FAA 

·proposed to.address circumstances 

where iridividua:ls are given preemployment drug tests (and receive 

negative test results) but a significant 

period of time passes between the date 

of the test and the date of hire or transfer 

into a safety-sensitive function and thus 

into the employer's FAA-mandated drug 

testing program. The FAA proposed 60 

days as an acceptable time between 

being given a pre-employment test and 

being brought into a drug testing · 

program. 

The FAA received comments on each 

of the subparagraphs of V.A. Several 

commenters, including the Drug & 

Alcohol Testing Industry Association 

(DATIA) supported the clarification in 

paragraph V.A.l. that a negative test 

result must be received prior to hiring 

an employee for a safety-sensitive 

function, especially in light of the 

number of positive pre-employment test 

results. 

Several commenters, including ATA 

and RAA opposed the requirement in 

paragraph V.A.1. to conduct preemployment testing with a.negative test 

result received prior to hiring an 

individual. These commenters preferred 

the 1994 version of the regulation, 

which only required receiving the 

negative test result on a pre- . 

employment test prior to performance. 

RAA stated that the FAA's proposal to 

have a negative drug test result received 

prior to hire rather than prior to the first 

performance of a safety-sensitive 

function would severely affect the 

ability of its members to hire in an. 

efficient manner. In addition they stated 

that this 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 result prior 

to beginning training of each individual. 

RAA noted that air carriers would have 

to conduct increased numbers of tests. 

RAA stated that air carriers would 

potentially be 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 

revert to the "prior to hire".preemployment testing language. ATA 

stated "that failures to perform preemployment testing have not been the 

result of confusion about when these 

tests must be performed, but instead 

because of a variety of other reasons: 

simple human error/forgetfulness, 

inadequate administrative systems, or 

occasionally the need to get someone in 

place in a position." They believed that 

"the change proposed by FAA will not 

prevent these kinds of errors from 

occurring in the future." ATA asserted, 

"the basic reason for the 1994 

language-flexibility that realistically 

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 in trying to 

reduce employer's errors in conducting 

pre-employment testing, they stated this 

goal "does not outweigh the need for 

·flexibility to conduct pre-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 can be 

complex and take a long time." ATA felt 

that its "members need the flexibility to 

conduct the pre-employment test at a 

time that makes sense in the 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." AT A 

noted that given both the length of the 

process and that some individuals 

ultimately will not make it through the 

process, these individuals should not be 

pre-employment tested before being 

hired. AT A also stated that the same 

two to four weeks of classroom training 

before they perform any activity that 

could be considered a safety-sensitive . 

function. RAA stated that classroom 

training generally occurs at the 

corporation's headquarters, and, since. 

most of the hires do not live there, air 

carriers conduct pre-employment testing 

on a new hire's first day of class. They 

noted that this gives the air carrier 

. issues and concerns apply to flight 

attendant and mechanic hiring, 

although the hiring/training process 

may be shorter. For these reasons, ATA 

requested that FAA retain the current 

text of section V.A.l. 

ample time to receive and document an 

individual's results before any safetysensitive work is performed. RAA stated 

that th.e proposed rule 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 

proper testing. Statistics show that preemployment testing yields the largest 

number and percentage of positive test 

-results, a larger number and percentage 

than .all other FAA -required drug testing 

combined. Pre-employment testing 

functions as the gatekeeper in the FAArequired drug testing program because it 

prevents the entry into safety-sensitive 

work of individuals who use illegal 

drugs. Therefore, any pre-employment 

violation poses the risk of permitting the · 

entry of an 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 preemployment testing. We have 

determined that the event of hiring an 

employee provides an unambiguous 

standard for the timing of pre- . 

employment testing. Although the. 

"prjor to 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 money by 

eliminating illegal drug users before 

employers expend time, effort, and 

funds to train those individuals. 

Consequently, because of the safety 

implications of allowing undetected 

drug users to enter into safety-sensitive' 

functions, the FAA is using the more 

clear and direct "prior to hire" 

language. 

Furthermore, pre-employment drug 

testing is a less expensive and more 

common prerequisite for employment in 

the United States today than it was in 

1994. Employers across ·the United 

States are finding that pre-employment, 

random, and other forms of testing 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 of dollars each year 

in costs associated with absenteeism, 

on-the-job errors, injuries to employees, 

increased insurance costs and workers 

compensation payments, etc. Requiring 

pre-employment testing prior to hiring 

an individual should actually save 

employers from expending salary, 

benefits, and workers compensation on 

active illegal drug users. 
Federal Register I Vol. 69, No. 7 I Monday, January 12, 2004 I Rules and Regulations 1847 

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 clear that the test 

for which the employer is receiving a 

verified negative drug test result 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-employment test 

and" to clarify that the test for which 

the employer is receiving a verified 

negative drug test result is a preemployment test. 

Some commenters, including NATA, 

supported the 60-day provision in 

paragraph V.A.3. However, several 

commenters, including AT A and RAA, 

opposed the proposed 60-day provision. 

ATA stated that the 60-day period 

would not have 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 between the 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 of its members to 

conduct more than one pre-employment 

test and would require its members to 

more closely track the time between preemployment testing and putting an 

employee into the testing program. RAA 

explained that under Postal regulations 

its members' new hires must be preemployment tested within 90 days. 

Thus the proposed 60-day window for 

pre-employment testing new hires is too 

narrow for RAA members. 

After reviewing the comments, we 

have determined that 180 days, as 

suggested by AT A, 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 want to ensure that there is not a 

significant delay between the preemployment test and the individual 

being subject to a drug testing program, 

we want to give the employer some 

flexibility. However, the longer the 

delay between the pre-employment test 

and the individual assuming a safetysensitive function, the less the 

deterrence factor because the individual 

is not in an on-going testing program. 

The FAA 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 of the discussion 

about the proposed changes to preemployment testing may have 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 must be tested again if the 

employee does not begin 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 of the 

apparent confusion about the use of the 

word "perform" in the 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 

in paragraph V.A.3. In addition, this· 

change to paragraph V.A.1. more 

directly mirrors the proposed language 

in V.A.2., which appears to have been 

clearer. 

Therefore, we are adopting the 

proposed language in paragraph V.A.3. 

with the change described above to 

-increase the 60-day period to 180 days. 

One commenter correctly recognized 

that Notice 02-04 proposed requiring 

pre-employment testing of any · 

individual hired or transferred into a 

safety-sensitive position, even if that 

individual were rehired by a former 

employer. However, when we reviewed 

the language in paragraph V.A. we 

realized that there was a conflict 

between paragraphs 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 

or transferred must be subject to preemployment testing. Historically, 

paragraph V.A.2. (redesignated as 

V.A.4.) allowed but did not require an 

employer to 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 submit to testing, such as 

assignment to a nonsafety-sensitive 

function. This allowed an employer to 

return an individual to a safety-sensitive 

.function without subjecting that 

individual to another pre-employment 

test. 

In this 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 cannot rehire 

a former employee without a pre~ 

employment test and receipt of a 

negative drug test result. 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, if the 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 in the random testing 

pool witb.out a pre-employment test. For 

example, if an employee is removed 

from the random pool because of a 

·work-related injury 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 

·redesignated paragraph V.A.4., we 

restored the concept that an employer 

must receive a negative test result on a 

pre-employment test. Historically, the 

requirement for the receipt of a negative 

test result was included in paragraph 

V.A.3., but it was inadvertently omitted 

in the proposal. · Another commenter believed that 

· requiring rehired employees to be preemployment tested would be "cost 

prohibitive" and a large number of 

employers would need to be educated 

on this change. Therefore, this 

commenter requested a long grace 

period to allow companies to become · 

familiar with this change. 

The FAA has determined that 

postponing the effective date of this 

provision is not necessary. While all 

employers governed by the drug and 

alcohol testing regulations must become 

familiar with all the changes in this 

final rule, we have no data to suggest 

that a large number of pre-employment 

tests will be triggered by this new 

provision. Furthermore, while the 

commenter notes that she believes the 

change is "cost prohibitive", she does 

not oppose the change or offer data to 

support that a large number of 
1848 Federal Register I Vol. 69, No. 7 I Monday, Jaimary 12, 2004 I Rules and Regulations 

employers would need to conduct 

significantly more pre-employment tests ·as a result of this change. · 

One commenter suggested that we 

add a definition of "Hire" to clarify who 

must be pre-employment tested. The 

FAA agrees with this commenter. For a 

discussion of this issue see Section IT. 

Definitions. 

There were no changes to paragraphs 

V.A.4.(b) and (c). They are adopted as 

proposed. · . 

In reviewing the draft final rule text, 

we realized that the language in 

paragraph V.A.5., which has been in the 

regulation for many years, could have 

caused some confusion. Specifically, 

proposed paragraph V.A.5. required an 

employer to notify "each individual 

applying to perform a safety-sensitive 

function at the time of application that 

the individual will be requ~red to · 

undergo pre-employment testing." This 

language was not intended to require 

employers who receive hundreds of 

unsolidted applications every year to 

notify each of these individuals of the 

requiremenf to test. Instead, the intent is 

to ensure that prior to pre-employment 

· testing, each individual has been 

notified of the requirement to take that 

test and we revised the rule accordingly. 

Also, we updated the reference in the 

last sentence of the proposed paragraph · 

because we redesignated paragraph 

V.A.2. a:s V.A.4. in Notice 02-04. 

Further we eliminated the reference to 

section v:A.l. in the proposal because it 

was redundant. 

In the final rule, we have made minor 

· editorial changes to section V.A., 

including substituting the word 

"individual" for the words "applicant.~' · 

"person," and "employee," as 

appropriate for clarity. 

The FAA has adopted the provisions 

proposed in paragraph V.A., Pre- . 

Employment Testing, with the changes 

described above and minor editorial 

changes. 

testing, the FAA has determined that the 

elimination of periodic 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 of periodic testing, the 

remaining paragraphs in this section are 

being relettered accordingly. . Tlie FAA received several comments, 

including one from ATA, supporting the 

proposed elimination of periodic 

testing. We agreed with the commenters 

and are adopting the changes as 

proposed. 

C. Random Testing 

In Notice 02-04, the FAA proposed 

adding a paragraph to the random 

testing section for consistency with 

appendix J. Under the proposed 

provision, each employer must ensure 

that each safety-sensitive employee who 

is notified of selection for random drug 

testing proceeds to the collection site 

immediately. Under the proposal, even 

if the employee is performing a safetysensitive function at the time of the 

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·requirement has been 

included in appendix J since its 

issuance in 1994 and has worked well. 

Two commenters supported the 

proposed change to the random drug 

testing section. One commenter stated 

that the proposed change would clear 

up the misunderstanding of the 

regulation that some companies have 

had. 

continued use of this means of 

notification, as it would require the 

pilots to cease operating fue aircraft 

after notification of testing." Finally, 

ALP A 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 of management 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 

proposed rule language continues to 

provide the employer a reasonable 

degree of control over when to notify an 

· employee of the need to take a random 

drug test. The proposed rule language 

does not preclude pilots from 

completing a flight segment in progress 

in order to submit to random testing. 

Employers have always had the option 

of notifying employees of random 

testing after completion of their safetysensitive .duties. In addition, the 

proposed rule language does not permit 

advance notification of random testing 

. of pilots and flight attendants. Such 

advance notification is inherently unfair 

because pilots and flight attendants are 

only two of the eight categories of 

safety-sensitive employees. In other 

words, six categories of employees are 

not accessible by AGARS advance 

notification. In· addition to fue 

unfairness issue, AGARS advance 

notification has been linked, through 

enforcement cases, to dilutions, 

. substitutions, and adulterations. AGARS 

notification could provide the employee 

with an opportunity to consume large . 

quantities of fluid immediately before • 

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 commenter questioned B. Periodic Testing 

In Notice 02-04, the FAA proposed to 

eliminate paragraph V.B, Periodic 

Testing. Periodic testing was important 

at the beginning of the program when 

many people were grandfathered into· 

newly approved antidrug programs 

without pre-employment testing. 

ALP A submitted a comment generally 

opposing random testing and 

specifically stated: "We suggest deleting 

this new proposed language, and 

replacing it with 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 of the Aircraft 

·Communications Addressing and 

Reporting System (AGARS) "to notify 

pilots flying an aircraft of their 

obligation to report for a random drug 

and/or alcohol test upon landing. * * * 

By using on-board notification to 

crewmembers of their obligation to 

submit to urine testing upon landing, 

the crewmembers are able to defer 

emptying their bladders and avoid 

subsequent problems· wifu producing 

the requisite urine specimen. Such 

notification and testing has been 

working well for employees and air 

carriers." ALP A 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 implementing random 

testing. Employers were not required to 

meet the annual random testing rate 

until the last collection at the end of the 

first year of testing. Thus, it was likely 

that a pilot would not be tested in the 

first year of testing. Because all flight 

ctewmembers are subject to preemployment testing and annual random 

. station holding an FAA-approved 

program must be tested equally and 

throughout the year, regardless of the 

volume of work performed by contract 

to an air carrier, and regardless of 

whefuer a person actually performs a 

safety-sensitive function directly on an 

air carrier's aircraft." 

The FAA notes that if an 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 
Federal Register I Vol. 69, No. 7 I Monday, January 12, 2004 I Rules and Regulations 1849 

the testing does not depend on the 

volume of work, but does depend on 

whether the employee has been 

designated by the employer to 

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 of FAA-required testing, 

including random testing, as long as the 

employee may be 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 perform safety-sensitive 

functions even part-time or 

intermittently must be 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 

the random testing provision as 

proposed. 

E. Testing Based on Reasonable Cause 

In Notice 02-04, the FAA proposed to 

change the reasonable cause language. 

Specifically, we proposed to allow, but 

not require, an employer to make a 

reasonable cause determination 

regarding a contractor's employee. The 

employer would be 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, including ATA, 

RAA, NATA, and DATIA, on the 

proposed change to reasonable cause 

testing. Four of the commenters, 

including NATA and DA TIA, supported 

the concept of allowing 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 of the commenters, however, 

suggested that the FAA did not go far 

enough because the proposed 

reasonable cause testing of contractors 

provision was permissive, not 

· mandatory. One commenter 

recommended that the employer should 

be required to make a reasonable cause 

determination regarding any contract 

employee who performs a safetysensitive function on the 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 similarly believed that the 

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 test results to the relevant 

employers. 

ATA and RAA opposed the proposed 

change to reasonable cause testing. AT A 

and RAA both had concerns over the 

legal implications of the proposed 

permissive language. In addition, ATA 

. stated that it "opposes this proposal 

bec.ause it would place our members in 

the middle of a sensitive employeremployee situation with regard to 

someone else's employee. This 

provision, if adopted, would create 

administrative burdens and legal risks 

that are m:iacceptable * * .* Moreover, 

even if an airline-employer makes a 

proper and timely referral there is no 

guarantee that the contractor will 

conduct the testing in a timely manner." 

After reviewing the comments 

received, the FAA agrees with 

commenters that the permissive nature 

of this provision is not advisable 

because there are too many 

contingencies in the proposal. For 

example, as ATA pointed out, even if an 

employer makes a reasonable cause 

determination on a contract employee, 

. there is no guarantee that the contractor 

will conduct the testing in a timely 

manner. Therefore, the FAA has not 

adopted the proposed reasonable cause 

testing of contract employees provision. 

It is important to note that the 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 

being tested for reasonable cause 

because their actual employers are not 

on-site. The FAA may revisit this 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 of marijuana, 

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 only in accordance with this 

appendix and the DOT Procedures for 

Transportation Workplace Drug Testing 

Programs' (49 CFR part 40)." The first 

sentence is redundant of the 

requirements in 49 CFR part 40. The 

second sentence is no longer 

appropriate. . · The FAA did not receive any 

comments on the proposed paragraph 

V.D.1. Therefore, the FAA has adopted 

this change to paragraph V.D.l. as 

proposed, now redesignated as 

paragraph V.D. 

IX. Implementing an Antidrug Program 

In Notice 02-04, the FAA proposed 

eliminating the requirement that each 

employer submit an antidrug program 

plan to the FAA for approval. Noncertificated employers or contractors 

conducting testing will be required to 

register with the FAA. Certificate 

holders must obtain an Antidrug and 

Alcohol Misuse Prevention Program 

Operations Specification (OpSpec). This 

provides the FAA with the information 

it needs for surveillance of these 

programs. In addition, we proposed 

changing the title of this section so it 

more accurately reflects the section's 

content. 

Replacement of Plan 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 testing program, 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 of Aerospace Medicine, every 

time they make a change to data 

regarding their company. 

New and existing part 121 and part 

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 own FAA 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 OpSpec has 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 

both the drug and the alcohol programs. 

To clarify the certificate holder's 

responsibility to update its Antidrug 

and Alcohol Misuse Prevention Program 

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 

in Notice 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 prevention program certification 

statement requirements for new and 

existing: (1) Air traffic control facilities 

not operated by the 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 entity registers it will only be 

required to file one registration that 

covers both the drug and the alcohol 

programs. However, a company must 

amend its registration information 

whenever changes to the data in the 

registration occur. Generally, the registration requires 

less information than the antidrug plan 

required. The only new item (for the 

antidrug program) is a statement signed 

by a company representative that the 

company will comply with part 121, 

appendices I and J, and 49 CFR part 40. 

Companies will be able to meet their 

registration requirements for both the 

antidrug program .and the alcohol 

misuse prevention program by signing 

one statement. 

Every employer must either register 

with the FAA or obtain an Antidrug and 

Alcohol Misuse Prevention Program 

OpSpec, as appropriate. Part 145 repair 

stations and non-certificated contractor · 

companies that are covered under an 

employer's antidrug and alcohol misuse 

prevention program may continue to be 

covered under 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 

not register with the FAA or obtain an 

Antidrug and Alcohol Misuse 

Prevention Program OpSpec. A part 145 

certificate holder or a non-certificated 

contractor that performs safety-sensitive 

functions for an employer may choose 

to have its own testing programs instead 

of being covered by an employer's 

program. In that case, the part 145 

certificate holder would be required to 

obtain an Antidrug and Alcohol Misuse 

Prevention Program OpSpec and the 

non-certificated contractor would 

register with the FAA as outlined in the 

rule. 

The FAA received several comments 

on Section IX. DATIA supported the 

proposal to eliminate antidrug plan 

approvals. Another commenter 

supported the elimination of antidrug 

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 of other more 

effective methods instead of being 

codified. RAA noted that airline 

individuals who specialize in aircraft 

navigational and air traffic procedures 

are typically responsible for maintaining 

the OpSpecs. RAA also noted that 

administering the antidrug and alcohol 

misuse prevention programs is typically 

accomplished by an individual in 

human resources. RAA stated that, 

while such individuals can coordinate 

their duties within the 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 of their antidrug 

and alcohol misuse pr~vention 

programs. Although the FAA has . 

eliminated the regulatory requirement 

for a company to obtain FAA approval 

of these programs, the FAA needs to 

continue to track companies with 

programs. The mechanisms in this 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 than the old plan approval 

process while still providing the FAA 

with the.necessary information. The 

information received continues to be 

important to the FAA, and we do not 

consider this new process merely an 

administrative task that can be 

accomplished without regulation. In 

response to RAA's concern regarding 

personnel responsibilities, the FAA has 

determined that while the employer 

may have to adjust responsibilities 

within its organization, this initial 

burden is significantly offset by the 

reduction in the overall paperwork 

burden. Therefore, the FAA .is adopting 

the requirement for an Antidrug and 

Alcohol Misuse Prevention Program 

OpSpec or registration to replace FAA 

approval. 

ATA supported the proposal to track 

pertinent information through the 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 adding the new OpSpec because 

the commenter believed that the new 

OpSpec intermingled the 

responsibilities of the Drug Abatement 

Division and FAA Principal 

Maintenance Inspectors. 

In response to these commenters, the 

FAA notes that under the miw OpSpec 

process, the role of the local Flight 

Standards District Office is limited to 

creating and updating the actual 

Antidrug and Alcohol Misuse 

Prevention Program OpSpec. The FAA 

Principal Operations Inspector and the 

FAA Principal Maintenance 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 of responsibilities, 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 add rule language that 

clarifies internal FAA responsibilitif:!s 

for the OpSpec. 

NATA agreed with the FAA that there 

will be a reduction in the paperwork 

burden for certificate holders if 

programs no·longer require FAA 

approval and issuance of plan numbers. 

However, NATA objected to the FAA 

placing on the certificate holders the 

burden of obtaining the new OpSpec. 

NATA noted that since this is a change 

mandated by the FAA, FAA inspectors 

should initiate contact with certificate 

holders under their supervision as they 

routinely do when new or changed 

OpSpecs are issued. NATA requested 

that the proposed language indicating 

that certificate holders bear the 

responsibility for obtaining the OpSpec 

be revised to clarify that existing 

operators will be issued the OpSpec by 

their primary inspector. 

Although the 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 

conduct their routine 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 in the certificate holder's 

overall paperwork burden by 

eliminating the plan approval process. 

The ultimate beneficiary of the new 

OpSpec process will be the certificated 

entity, which will only be required to 

update its data in one FAA tracking 

system, and will no longer be required 

to provide infonhation for a separate 

Drug Abatement Division tracking 

system. · Several commenters, including ATA 

and NATA, asked procedural questions 

about implementing the new OpSpec 

and registration processes. ATA 

-recommended that FAA identify a 

person within the Drug Abatement 

Division for air carriers to contact in the 

event of a problem regarding its OpSpec 

under this appendix. ATA stated that, to 

avoid confusion, the FAA should 

specify the documentation that 

contractors must provide to employers 

to prove that they have compliant 

antidrug and alcohol misuse prevention 

programs in place. NATA commented 

that additional information, such as a 

model certification .statement, would be 

particularly helpful to small operators, 

including§ 135.1(c) operators. 

The changes· requested by the 

commenters can be accomplished 

without modifying the regulatory text. 

Once the rule becomes effective, the 

public can obtain information about 

process and implementation by 

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 of approval/acceptance of 

the OpSpec. One commenter 

recommended that the 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. 

In response to the recommendation 

that the. OpSpec contain more detailed 

information and written confirmation of 

approval/acceptance, the FAA has 

determined that providing detailed 

information, including the current 

laboratory and MRO, could defeat the 

simplicity of the OpSpec and 

registration requirement under the new 

rule. Under the antidrug plan approval 

process, this level of detail 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 of the antidrug 

plan added delay. · 

In deciding to move to the OpSpec 

and registration requirement, the FAA 

carefully considered whether it should 

be evaluating/approving the written 

information submitted at the beginning 

of the testing program. The FAA 

decided that the best evaluation of how 

a company is testing is done on-site at 

the company during FAA inspections. 

Successful implementation of a: testing 

program is the employer's 

responsibility; and is not shown merely 

on a paper submission at the beginning 

of a testing program. Therefore, the FAA 

decided to collect only enough 

information in the registration 

statements and OpSpecs to provide a 

starting point for our inspections. 

. The FAA notes that many companies 

have already obtained the Antidrug and 

Alcohol Misuse Prevention Program 

OpSpec. In addition, because the 

requirement will not become effective 

until30 days after this final rule is 

published, there is a built-in transitional 

period to obtain an OpSpec for any 

company that has not already obtained 

an Antidrug and Alcohol Misuse 

Prevention Program OpSpec. 

One commenter was concerned that 

the plan approval process took a long 

time and may have 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. 

The FAA is going forward with the 

OpSpec and registration processes as 

proposed, with minor clarifying 

changes, because we have determined 

that these, in fact, will streamline the 

gathering of basic information that the 

FAA needs for monitoring the 

compliance of companies conducting 

FAA-required drug and alcohol testing. 

At the same time they will lessen the 

burden on the operator. As suggested by 

one of the commenters, we expect that 

the OpSpec and registratiqn processes 

will expedite the beginning of 

operations for employers. 

Elimination of 60-Day Grace Period for 

Contractors 

The FAA also proposed eliminating 

the 60 days allowed for new employers 

to ensure that their contractors are 

subject to an antidrug program. This 

provision provi.ded a grace period that 

was important a:t the inception of the 

antidrug regulations in 1988 because 

drug testing was a new regulatory 

requirement for employers and their 

contractors. However, since contractor 

programs must be implemented by the 

time the contractor performs safetysensitive functions for an employer, this 

grace period is no longer necessary or 

appropriate. 

The FAA received a supporting 

comment from DA TIA on the proposed 

elimination of the 60-day grace period 

for contractors of new employers to 

implement an antidrug program. The 

FAA proposed this change in Section IX 

for employers to ensure that their 

contractors are covered by an FAAmandated antidrug program. We are 

adopting it as proposed. 

Adoption of the Plain Language Format 

for Section IX 

The FAA proposed two formats for 

the rule language in this section. While 

both proposals had the same 

requirements, they differed greatly in 

format. The first option was presented 

in table format as much as possible. The 

second option followed the format of 

the current rule. · 'Fhe FAA received a comment 

objecting to inclusion of the words "a 

non-certificated repair station, * * * or 

any other individual or company that 

provides safety-sensitive service." Thiscommenter believed that this language, 

as posed in option 1, added a new 

· requirement to the regulations. 

As stated above, the options offered 

different formats but had the same 

requirements. Since the beginning of the 

program, certificated and noncertificated contractors have been 

allowed, but not required, 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 

continue to 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. in the 

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, supporting the table format. reasonable suspicion determinations 

Therefore, the FAA js adopting the table and refer a contract employee for testing 

format as proposed with minor editorial under the contractor's alcohol misuse 

changes. · prevention program. This change was 

The FAA also received a comment proposed because there has been · 

from RAA requesting that we give confusion about the reasonable 

operators the option of submitting suspicion testing of contract employees 

information electronically. RAA noted on an employer's premises. 

that even ifF AA is not now capable of For the reasons discussed in the 

receiving information electronically, we preamble to section V.E. of appendix I, 

should nonetheless write it into the rule the FAA has not adopted the proposed 

so that when we do have the capability, . reasonable suspicion language. 

operators can submit it to the FAA IV. Handling of Testing Results, Record 

without first requesting an exemption to Retention, and Confidentiality the rule. 

The FAA has determined that it is In Notice 02-04, the FAA proposed to 

pr:emature to incorporate into the change paragraph B.4. by adding the 

current rule text any specific reference sentence "No other form, including 

to electronic filings. However, we agree another DOT Operating 

with the spirit of RAA' s comment that Administration's form, is acceptable for 

the final rule should allow rooni for ·submission to the FAA." The FAA has 

developments in acceptance and already made this change in a final rule 

retention of electronic filings. Currently, published December 31, 2003 (68 FR 

we are not able to receive registration 75455). 

information electronically. The FAA is VII. Implementing an Alcohol Misuse 

eager to pursue avenues for electronic Prevention Program 

filing, and therefore, in response to 

RAA's suggestion, we have added In Notice 02-Q4, the FAA proposed 

language in paragraph IX.E.2. to allow eliminating the requirement that each 

for registration information to be sent employer submit an Alcohol Misuse 

"in the form and manner prescribed by Prevention Program Certification 

the Administrator." Statement. As with the elimination of 

program approvarunder appendix I, 

Appendix J-AlcoholMisuse each employer or contractor conducting 

Prevention Program alcohol testing will be required to either 

I. General register with the FAA or obtain an Antidrug and Alcohol Misuse 

In Notice 02-04, the FAA proposed Prevention Program OpSpec, as 

the following changes in paragraph D. specified in the regulation. 

·Definitions. We proposed to eliminate Many of the comments on appendix I 

the definition of" Administrator" · addressed this change in appendix J as 

because it is defined elsewhere in 14 well. For the reasons discussed under 

CFR. We also proposed to change appendix I, we have also adopted this 

"Contractor company" to "contractor" change for appendix J. 

to emphasize that a contractor could be In Notice 02-04, the FAA also 

an individual. proposed eliminating the 180 days 

The FAA did not receive any · allowed for new employers to ensure 

comments on the 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 

In Notice 02-Q4, we proposed to make . the alcohol misuse prevention program 

it clear in appendix J as we did with regulations in 1994 because alcohol 

appendix I that including an employee testing was a new regulatory 

in a drug and alcohol testing program requirement for employers and their 

depends on his or her duties not contractors. However, since contractor 

employment status (full time, part time, programs must now be implemented by 

temporary, or intermittent). In this final the time the contractor performs safetyrule, we have·further modified appendix sensitive functions for an employer, this 

J to ensure that this 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 of the 180-day . timeframe. The commenter, DA TIA, · D. Reasonable Suspicion Testing supported the proposed change. The 

In Notice 02-Q4, the FAA proposed to FAA is adopting the elimination of the 

change the reasonable suspicion 180-day timeframe as proposed. 

language to allow, but not require, an . As with appendix r, the FAA. 

employer to have its supervisors make proposed two formats for the rule 

language in this section, one mostly in 

table format, the other in the format of 

the current rule. 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 in this final rule. 

Paperwork Reduction Act. 

This final rule contains information 

collection activities subject to the 

Paperwork Reduction Act (44 U.S. C. 

3507(d)). In accordance with the 

Paperwork Reduction Act, 

documentation describing the 

information collection activities was 

'submitted to the Office of Management 

· and Budget (OMB) for review and 

approval, and assigned q:mtrol number 

2120-0685. 

This rule constitutes a change to the 

data collection burden for existing and 

new companies required or electing to 

implement antidrug and alcohol misuse 

prevention programs. 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 operated by the FAA or by or under 

contract to the U. S. military, and noncertificated contractors will register 

with the FAA. 

A protection provided by the 

Paperwork Reduction Act states that an 

agency may not conduct or sponsor and 

a person is not required to respond to 

a collection of information unless it 

P,isplays a currently valid OMB control 

number. As stated above, the OMB 

control numbers is 2120-0685. 

International Compatibility · 

In keeping with U.S. obligations 

under the Convention on International 

Civil Aviation, it is 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 

Regulatory Policies and Procedures 

Changes to Federal regulations must 

undergo several economic analyses. 

First, Executive Order 12866 directs that 

each Federal agency shall propose or 

adopt a regulation only upon a reasoned 

determination that the benefits of the 

intended regulation justifY its costs. 

Second, the Regulatory Flexibility Act 

of 1980 requires agencies to analyze the 

economic impact of regulatory 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 of the 

United States. In developing U.S. 

standards, this Trade Act requires 

agencies to consider international 

standards and, where appropriate, that 

they be the basis of U.S. standards. 

Fourth, the Unfunded Mandates Reform 

Act of 1995 (Pub. L. 104-4) requires 

agencies to prepare a written assessment 

of the costs, benefits, and other effects 

of proposed or final rules that include 

a Federal mandate likely to result in the 

expenditure by State, local, or tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

annually (adjusted for inflation.) 

In conducting these analyses; FAA 

has determined this rule: (1).Has 

benefits that justifY its costs, is not a 

"significant regulatory action" as 

defined in section 3(f) of Executive 

Order 12866, and is not "significant" as 

defined in DOT's Regulatory Policies 

and Procedures; (2) will not have a 

significant economic impact on a 

substantial number of small entities; (3) 

will not reduce barriers to international 

t:fade; and does not impose an unfunded 

mandate on state, local, or tribal 

governments, or on the private sector. 

These analyses, available in the docket, 

are summarized below. 

Cost of Compliance 

The FAA is changing several sections 

of 14 CFR part 121, appendices I and J; 

not all of these changes will have cost 

implications. Some of the 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 of tests, and the 

salaries of the employees can be found 

in the full regulatory evaluation, found 

in the 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 current provision, 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 regulatory provisions 

between the drug and alcohol rules. The 

current drug rule 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 certain types of employees tend 

to moonlight; these include part 121/ 

135 pilots, mechanics, screeners, 

sightseer pilots, and part 135 ondemand pilots, primarily single owner 

operators. The FAA believes that the 

number of moonlighting employees is 

small, but does not know exactly how 

many of these employees moonlight. 

Accordingly, the FAA will base costs on 

an additional 1 percent of these 

employees having additional drug tests. 

The FAA projects over 10 years, the 

total number of tests, 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 sum to 

$147,200 over 10 years. Total10-year 

costs of testing these employees will 

sum to $646,300 (present value, 

$449,900). 

(2) The FAA is eliminating section V. 

B. of appendix I, periodic testing. The 

current regulation requires that a new 

employer must periodically drug test 

part 67 medical certificate holders 

during the first calendar year of 

implementation of Its program; Periodic 

testing was important at the beginning 

ofthe program when many people were 

grandfathered into newly approved 

antidrug programs without.preemployment testing. Since all flightcrew 

members are currently subject to pree1llployment testing and annual random 

testing, the FAA believes that the 

elimination of periodic drug testing will . 

not compromise safety and will be a 

cost savings. Cost savings from the 

elimination of periodic drug testing, 

over ten years, sums to $122,300 

(present value, $85,900). 

(3) The FAA will make several 

changes to section IX of appendix I and 

section VII of appendix J; two of these 

changes will have cost implications. 

Provisions that affect part 121, 135, and 

145 certificate holders will be covered 

in section (3a); and operators as defined 

by§ 135.1(c);air traffic control facilities 

not operated by the FAA or by or under 

contract to the U.S. military, and noncertificated contractors in section (3b). 

(3a) Part 121, 135, and 145 certificate 

holders will no longer have to submit 

antidrug and alcohol misuse prevention 

programs to the FAA for approval. The 

FAA instead will track these 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 

of certificate holders' operations 

specifications. 

Companies with antidrug and alcohol 

misuse prevention programs will incur 

additional costs from these rule· 

changes. In the first year of this rule, 

these companies will have to file new 

information. New companies will have 

to do the same in their first year. When 

the number of employees 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 plan holders 

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 of the existing plan ho~ders will. 

have to spend time to produce the 

required information, file and store it, and submit it to the FAA. Total first 

year costs will be $39,700. Subsequent 

year costs, which will encompass 

processing new plans, employment 

change reports, and amendments sum tQ 

$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. First year costs will be 

$21,400, while each subsequent year 

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 of the existing 

companies will no longer have to spend 

time to produce these plans and 

certification statements. Total first year 

cost savings will be $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 not having 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). 

Ten year net cost savings sum to 

$270,700 (present value, $228,800). 

(3b) These rule changes also will 

eliminate the antidrug program plan and 

alcohol misuse prevention program 

certification statement requirements for 

new and existing non-Federal air traffic 

· control facilities and operators as 

defined by§ 135.1(c). Instead, as with 

certificate holders, a single registration 

statement requirement will suffice for 

. both programs. In addition, the FAA 

will require new and existing noncertificated contractors·that elect to have 

an antidrug and alcohol misuse 

prevention program to register with the 

FAA. 

The FAA 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 of these companies. 

Each of the existing plan holders will 

have to spend time to produce the 

required information, file and store it, 

and submit it to the FAA. Total first 

year costs will be $11,000, while total 

annual costs for existing company 

amendments and new company plans 

sum to $1,500. Ten year 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 over ten 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 company plans sum to $5,400, Ten . 

year cost savings equal $111,900 

(present value, $92,700). 

Ten year net 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 (present value, $119,900) and 

total costs savings to the FAA sums to 

$60,400 (present value, $48,000). 

Analysis of Benefits 

The FAA believes that these new 

rules can result in enhanced safety and 

concludes that several specific benefits 

will accrue from these rule changes. 

The specific changes to preemployment testing will result in a 

number of benefits. The FAA believes 

that certain employers had 

·misunderstood the current requirements 

and that the requirements will be better 

understood. This will reduce the 

number of pre-employment enforcement 

cases. From 2000 through 2002, the 

FAA initiated 197legal enforcement 

cases dealing with pre-employment 

violations, or an average of 66 cases per 

year. The FAA believes that these 

changes can reduce the number of legal 

enforcement cases, saving both the FAA 

and the industry time and resources. Pre-employment testing acts as the 

"gatekeeper." Since this type of testing 

has the largest number of positives, it is 

a major tool that would keep drug users 

from getting into the aviation industry 

in the first place. Most of the 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 longer having to file 

antidrug plans and alcohol misuse 

prevention program certification 

statements will bring about some cost 

savings. In addition to the cost savings 

discussed above, each company will 

benefit from a reduction in the 

paperwork burden; the FAA will also 

realize these same benefits. These rule · 

changes will increase consistency 

between appendices I and J, where 

possible. Elimination of unnecessary 

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 of Costs and Benefits 

This action will. make a number of 

'Changes in order to 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 of the 

antidrug plans and the alcohol misuse 

prevention program certification 

statements should make these programs 

more effective. 

These rules will result in a net cost of 

$178,600 (net present value, $72,000). 

The public will benefit from: 

-Increased safety, by reducing the 

likeli.)10od that a drug user will be 

employed in a safety-sensitive 

position due to clarified pre-. 

employment requirements; 

-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 of unnecessary 

differences between appendices I and 

J. Accordingly, the FAA finds these 

requirements to be cost-beneficial. 

Regulatory Flexibility Determination 

The Regulatory Flexibility Act of 1980 

(RFA) establishes "as a principle of 

regulatory issuance that agencies shall 

endeavor •. consistent with the objective 

of the rule and of applicable statutes, to 

fit regulatory and informational 

requirements to the scale of the 

business, organizations, and 

governmental jurisdictions subject to 

regulation." To achieve that principle, 

the RF A requires agencies to solicit and 

consider flexible regulatory proposals 

and to explain the rationale for their 

actions. The RF A covers a wide-range of 

small entities, including small . 

businesses, not-for-profit organization's 

and small governmental jurisdictions. 

Agencies must perform a review to 

determine whether a proposed or final 

rule will have a significant economic 

impact on a substantial number of small 

entities. If the agency determines that it 

will, the agency must prepare a 

regulatory flexibility analysis as 

described in the Act.· 

However, if an agency determines that · a ·proposed or final rule is not expected 

to have a significant economic impact 

on a substantial number of small 

entities, section 605(b) of the 1980 RFA 

provides that the head of the agency 

may so certify and a regulatory 

flexibility analysis is not required. The 

certification must include a statement 

providing the factual .basis for this 

detenp.ination, and the reasoning should 

be clear. · · . For this rule, the small entity group is 

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 of 98 of a total of 144 

part 121 air carriers and 2,118 of a total 

of 3,074 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 of these 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 on each of the small 

entities and also on all of the small 

entity industry groups. If all 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 would be 

$174, $8, or $7, respectively. If the cost 

savings were divided among all of these 

business entities, the average cost 

savings per entity would be $4 per 

entity. Consequently, the FAA certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of these entities. 

International Trade Impact Statement · 

The Trade Agreement Act of 1979 

prohibits Federal agencies from 

establishing any standards or engaging 

in related activities that create 

unnecessary obstacles to the foreign 

commerce of the United States. 

Legitimate domestic objectives, such as 

safety, are not considered unnecessary 

obstacles. The statute also requires 

consideration of international standards 

and, where appropriate, that they be the 

basis for U.S. standards. The FAA has 

assessed the potential effect of this final 

rule and determined that it will have 

only a domestic impact and therefore no 

. effect on any trade-sensitive activity. 

Unfunded Mandates Determination 

The Unfunded Mandates Reform Act 

of 1995 (the Act) is intended, among 

other things, to curb the practice of 

imposing unfunded Federal mandates 

on State, local, and tribal governments. 

Title II of the Act requires each Federal 

agency to prepare a written statement 

assessing the effects of any Federal 

mandate in a proposed or final agency 

rule that may result in an expenditure 

of $100 million or more (adjusted 

annually fpr inflation) in any one year 

by State, local, and tribal governments, 

in the aggregate, or by the private sector; 

such a mandate is deemed to be a 

"significant regulatory action." This 

final rule does not contain such a 

mandate. The requirements of Title IT do 

not apply. 

Executive Order 13132, Federalism 

The FAA has analyzed this final rule 

under the principles and criteria of 

Executive Order 13132, Federalism. We 

determined that this action will not 

have a substantial direct effect on the 

States, on the relationship between the. 

national Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government. Therefore, we 

determined that this final rule does not 

have federalism implications. 

Environmental Analysis 

FAA Order 1050.1D defines FAA 

actions that may be categorically 

excluded from preparation of a National 

Environmental Policy Act (NEP A) 

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, or Use 

The FAA has analyzed this final rule 

under Executive Order 13211, Actions 

Concerning Regulations that 

Significantly Affect Energy Supply, 

· Distribution, or Use (May 18, 2001). We 

have determined that it is not a 

"significant energy action" under the 

executive order because it is not a 

"significant regulatory action" under 

Executive Order 12866, and it is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. 

List of Subjects 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 . 

The Amendment 

• In consideration of the foregoing, the 

Federal Aviation Administration 

amends part 121 of title 14, Code of 

Federal Regulations, as follows: 

PART 121-0PERATING 

REQUIREMENTS: DOMESTIC, FLAG, 

AND SUPPLEMENTAL OPERATIONS. 

• 1. The authority citation for 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 appendix I to part 121 as follows: 

• A. In section I., add new paragraphs D 

andE· 

• B. fu ~ection II., remove the definition 

of Contractor company; add new 

definitions for Contractor and Hire in 

alphabetic order; and revise the 

definitions of Employee and Employer; 

• C. Revise section ill.; 

• D. In section V., revise paragraph A.; 

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 new paragraph 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 section VI., revise paragraph D.1; • F. In section VII., revise paragraph C.5; • G. Revise section IX; and • H. In section XIII., revise introductory 

text and paragraph B. 

The additions and revisions read as 

follows: 

Appendix I to Part 121-Drug Testing 

Program 

* * * * * 

I. General. 

* * * * * 

D. Applicable Federal Regulations. 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-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. 

65.46-Use of prohibited drugs. 

· 67.107-First-Class Airman Medical 

Certificate, Mental. ' 

67.207-Second-Class Airman Medical 

Certificate, Mental. 

67.307-Third-Class Airman Medical 

Certificate, Mental. 

121.429-Prohibited drugs. 

121.455-Use of prohibited drugs. 

121.457-Testing for prohibited drugs. 

135.1-Applicability. · 

135.249-Use of prohibited drugs. 

135.251-Testing for prohibited drugs. 

135.353-Prohibited drugs. 

E. Falsification. No. person may make, or 

cause to be made, any of the following: 

1. Any fraudulent or intentionally false 

statement in any application of an antidrug 

program. 

2. Any fraudulent or intentionally false · 

entry in any record or report that is made, 

kept, or used to show compliance with this 

appendix. 

3. Any rep.roduction or alteration, for 

fraudulent purposes, of any report or record 

required to be kept by this appendix. 

II. Definitions. * * * 

* * * * * 

Contractor is an individual or company 

that performs a safety-sensitive function by 

contract for an employer or another 

contractor. 

* * * * * 

Employee is a person who is hired, either 

directly or by 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. 

Employer is a part 121 certificate holder, a 

part 135 certificate holder, an 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. An employer may 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 employee is included under the 

contractor's FAA-mandated antidrug program 

and is performing a safety-sensitive function 

on behalf of that contractor (i.e., within the 

scope of employment 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 of compensation. 

* * * * * 

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 or by contract for an 

employer as defined in this appendix must 

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 of the degree of supervision. The 

safety-sensitive functions are: 

A. Flight crewmember duties. 

B. Flight attendant duties. 

C. Flight instruction duties. 

D. Aircraft dispatcher duties. 

E. Aircraft maintenance and preventive 

maintenance duties. 

* 

F. Ground security coordinator duties. 

G. Aviation screening duties. 

H. Air traffic control duties. 

* * * * 

V. Types of Drug Testing Required. * 

A. Pre-Employment Testing. 

1. No employer may hire any indivldual for 

a safety-sensitive function listed in section III 

of this appendix unless the employer first 

conducts a pre-employment test and receives 

a verified negative drug test result for that 

individual. 

2. No employer may allow an individual to 

transfer from a nonsafety-sensitive to a 

safety-sensitive function unless the employer 

rust conducts a pre-employment test and 

receives a verified negative drug test result 

for the individual. 

3. Employers must conduct another preemployment test and reCeive a verified 

negative drug test result before hiring or 

transferring an individual into a safety-

. sensitive function if more than 180 days 

elapse between conducting the preemployment test required by section V.A.1. 

or V.A.2. of this appendix and hiring or 

transferring the individual into a safetysensitive function, resulting in that 

If you are ... 

1. A part 121 or 135 certificate holder 

individual being brought under an FAA drugtesting program. 

4. If the following criteria are met, an 

employer is permitted to conduct a preemployment test, and if such a test is 

conducted, the employer must receive a 

negative test result before putting the 

individual into a safety-sensitive function: 

(a) The individual previously performed a 

safety-sensitive function for the employer 

and the employer is Iiot required to preemployment test the individual under 

section: V.A.1. or V.A.2 of this appendix 

before putting the individual to work in a 

safety-sensitive function; 

(b) The employer removed the individual 

from the employer's random testing program 

conducted under this appendix for reasons 

other than a verified positive test result on 

an FAA-mandated drug test or a refusal to 

submit to such testing; and 

(c) The individual will be returning to the 

performance of a safety-sensitive function. 

5. Before hiring or transferring an 

individual to a safety-sensitive function, the 

employer must advise each individual that 

the individual will be required to undergo 

pre-employment testing in accordance with 

this 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 each individual required by the employer 

to undergo pre-employment testing under 

section V.A.4. of this 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 if the employee is performing 

a safety-sensitive function at the time of the 

notification, the employer shall instead 

ensure that the employee ceases to perform 

the safety-sensitive function and proceeds to 

the collection site as soon as possible. 

* * * * * 

D. Testing Based on Reasonable Cause. 

Each employer must test each employee who 

,performs a safety-sensitive function and who 

is reasonably suspected of having used a 

prohibited drug. The decision to test must be 

based on a reasonable and articulable belief 

that the employee is using a prohibited drug 

on the basis of specific contemporaneous 

You must ... 

physical, behavioral, or performance 

indicators of probable drug use. At least two 

of the employee's supervisors, one of whom 

is trained in detection of the symptoms of 

possible drug use, must substantiate and 

concur in the decision to test an employee 

who is reasonably suspected of drug use; 

except that in the case of an employer, other 

than a part 121 certificate holder, who 

employs 50 or fewer employees who perform 

safety-sensitive functions, one supervisor 

who is trained in detection of symptoms of 

possible drug use must substantiate the 

decision to test an employee who is 

reasonably suspected of drug use. 

* * * * 

VI. Administrative and Other Matters. 

* * * * * 

D. Refusal to Submit to Testing. 1. Each 

employer must notify the FAA within 5 

working days of any employee who holds a 

certificate issued under part 61, part 63, or 

part 65 of this chapter who has refused to 

submit to a drug test required under this 

appendix. Send these notifications to: 

Federal Aviation Administration, Office of 

Aerospace Medicine,. Drug Abatement 

Division (AAM-800), 800 Independence 

Avenue, SW, Washington, DC20591. 

* * * * * 

VII. Medical Review Officer/Substance 

Abuse Professional, and Employer 

Responsibilities. · 

* * * * * 

C. Additional Medical Review Officer, 

Substance Abuse Professional, and Employer 

Responsibilities Regarding 14 CFR part 67 

Airman Medical Certificate Holders. 

* * * * * 

5. Reports required under this sectio~ shall 

be forwarded to the Federal Air Surgeon, 

Federal Aviation Administration, Office of 

Aerospace Medicine, Attn: Drug Abatement 

Division (AAM-800), 800 Independence 

Avenue, SW., Washington, DC 20591. 

* * * * * 

IX. Implementing an Antidrug Program. 

A. Each company must meet the 

requirements of this appendix. Use the 

following chart to determine whether your 

company must obtain an Antidrug and 

Alcohol Misuse Prevention Prograin 

Operations Specification or whether you 

must register 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) 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 if you 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 if you 

If you are ... 

intend to begin air traffic control operations 

[not operated by the FAA or by or under 

contract to the U.S. military.) Use it to 

determine whether you need to have an 

Antidrug and Alcohol Misuse Prevention 

You must ... 

Program Operations Specification, or 

whether you 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 of this 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. If you are an individual or company 

that intends to provide safety-sensitive 

services by contract to a part 121 or 135 

certificate holder, a sightseeing operation as 

defined in§ 135.1(c) of this 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 of this appendix. 

traffic control facility not operated by .the 

FAA or by or under contract to the U.S. 

military, use the chart in paragraph C.2 of 

this section to determine what you must do 

You must ... 

if you opt to have your o'Wn antidrug 

program. 

2. The following chart explains what you 

must do if you 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 and Alcohol 

Misuse Prevention Program Operations 

Specification; you must contact your FAA 

Principal Operations Inspector or Principal 

Maintenance Inspector. Provide him/her with 

the following information: 

a. Company name. b. Certificate number. 

c. Telephone nUinber. 

d. Address where your Antidrug and 

Alcohol Misuse Prevention Program records· 

are kept. 

e. Whether you have 50 or more safetysensitive employees, or 49 or fewer safetysensitive employees. (Part 121 certificate 

holders are not required to provide this 

information.) 

2. You must certify on your Antidrug and 

Alcohol Misuse Prevention Program 

Operations Specification issued by your FAA 

Principal Operations Inspector or Principal 

Maintenance Inspector that you 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 J of this part, 

and 49 CFR part 40. . 

3. You are required to obtain only one Antidrug and Alcohol Misuse. Prevention 

Program Operations Specification to satisfy 

this requirement under this appendix and 

appendix J of this part. 

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. 1. To register with the FAA, submit the 

following information: 

a. Company name. 

b; Telephone number. 

c. Address where your Antidrug and 

Alcohol Misuse Prevention Program records 

are kept. 

d. Type of safety-sensitive functions you 

perform for an employer (such as flight 

instruction duties, aircraft dispatcher duties, 

maintenance or preventive maintenance 

duties, ground security coordinator duties, 

aviation screening duties, air traffic control 

duties). 

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

employees. . f. A signed statement indicating that: your 

company will comply with this appendix, 

appendix J of this part, and 49 CFR part 40; 

and, if you are a contractor, you intend to 

provide safety-sensitive functions by contract 

to a part 121 or part 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. 

2. Send this information in the form and 

manner prescribed by the Administrator, in 

duplicate to: The Federal Aviation 

Administration, Office of Aerospace 

Medicine, Drug Abatement Division (AAM-
1858 Federal Register I Vol. 69, No. 7 I Monday, 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 in paragraph 2. 

4. This registration will satisfy the 

registration requirements forboth your 

Antidrug Program under this appendix and 

your Alcohol Misuse Prevention Program 

under appendix J of this part. 

* * * * * 

XIII. Waivers from 49 CFR 40.21. An 

employer subject to this part may petition the 

Drug Abatement Division, Office of 

Aerospace Medicine, for a waiver allowing 

. the employer to stand down ail employee 

following a report of a laboratory confirmed 

positive drug test or refusal, pending the 

outcome of the verification process. 

* * * * *· 

B. Each petition for a waiver must be 

submitted to the Federal Aviation 

Administration, Office of Aerospace 

Medicine, Drug Abatement Division (AAM800), 800 Independence Avenue, SW., 

Washington, DC 20591. · 

* * * * * • 3. InappendixJto part 121: 

• A. In section I., amend paragraph D. 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 section II., revise the introductory 

text of paragraph A.; 

• C. In section V., revise paragraphs C.3. 

and D.1.; and 

• D. Revise section VII. 

The additions and revisions read as 

follows: 

Appendix J To Part 121-Alcohol 

Misuse Prevention Program 

* * * * 

I. General 

* * * * * 

If you are. 

1. A part 121 or 135 certificate holder 

D. Definitions 

* * * * * 

Contractor means an individual or 

company that performs a safety-sensitive 

function by contract for an employer or 

another contractor. 

* * * * * 

H. Applicable Federal Regulations. 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 of Alcohol. 

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 of alcohol. 

121.459-Testing for alcohol. 

135.1-Applicability. 

135.253.,.-Misuse of alcohol. 

135.255-Testing for alcohol. 

I. Falsification. No person may make, or 

cause to be made, any of the following: 

1. Any fraudulent or intentionally false 

statement in any application of an alcohol 

· misuse prevention program. 

2. Any fraudulent or intentionally false 

entry in any record or report that is made, 

kept, or used to show compliance with this 

appendix. 

3. Any reproduction or alteration, for 

fraudulent purposes, of any report or record 

required to be kept by this appendix. 

II. Covered Employees 

A. Each employee, including any 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 subject to alcohol testing under an alcohol 

misuse prevention program implemented in 

accordance with this appendix. This not only 

includes full-time and part-time employees, 

but temporary and intermittent employees 

regardless of the degree of supervision. The 

safety-sensitive functions are: 

* * * * * 

V. Consequences for Employees Engaging in 

Alcohol-Related Conduct 

* * * * * 

C. Notice to the Federal Air Surgeon 

* * * * 

3. All documents must be sent to the 

Federal Air Surgeon, Federal Aviation_ 

Administration, Office of Aerospace 

Medicine, Attn: Drug Abatement Division 

(AAM-800), 800 Independence Avenue, SW, 

Washington, DC 20591. 

* * * * 

D. Notice of Refusals 

1. Except as provided in subparagraph 2 of 

this paragraph D, each employer shall notify 

the FAA within 5 working days of any 

covered employee who holds a certificate 

issued under 14 CFR part 61, part 63, or part 

65 who has refused to submit to an alcohol 

test required under this appendix. 

Notifications must be sent to: Federal 

Aviation Administration;Office of Aerospace 

Medicine, Drug Abatement Division (AAM800), 80.0 Independence Avenue, SW, 

Washington, DC 20591. 

* * * * * 

VII. How To Implement an Alcohol Misuse 

Prevention Program 

A. Each company must meet the 

requirements of this appendix. Use the 

following chart to determine whether your . 

company must obtain an Antidrug and 

Alcohol Misuse Prevention Program 

Operations Specification or whether you 

must register 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 chart for 

implementing an Alcohol Misuse Prevention 

Program if you are applying for a part 121 or 

135 certificate, if you intend to begin 

sightseeing operations as defined in 

§ 135.1(c) of this chapter, or if you intend to 

begin air traffic control operations (not 

operated by the FAA or by or under contract 

to the U.S. military.) Use it to determine 

whether you need to have an Antidrug and 

Alcohol Misuse Prevention Program 

Operations Specification, or whether you 

need to register with the FAA. Your 

employees who perform safety-sensitive 
Federal Register I Vol. 69, No. 7/ Monday, January 12, 2004/ Rules and Regulations 1859 

duties must be 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 of this 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 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. 

military). 

a. Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM-810), 800 Independence Avenue, SW, Washington, DC 20591, 

C. 1. If you 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 of this appendix. 

chart in paragraph C.2. of this section to 

determine what you must do ifyou opt to 

have your own Alcohol Misuse Prevention . 

Program. 

You must ... 

2. The following chart explains what you 

must do if you opt to have your own Alcohol 

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) 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 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 and Alcohol 

Misuse Prevention Program Operations 

Specification, you must contact your FAA 

Principal Operations Inspector or Principal 

Maintenance Inspector. Provide him/her with 

the following information: a. Company name. 

b. Certificate number. 

c. Telephone number. 

d. Address where your Antidrug and· 

Alcohol Misuse Prevention Program records 

are kept. 

e. Whether you have 50 or more covered 

employees, or 49 or fewer covered 

employees. (Part 121 certificate holders are 

not required to provide this information:) 

2. You must certify on your Antidrug and 

Alcohol Misuse Prevention Program 

Operations Specification, issued by your 

FAA Principal Operations Inspector or 

Principal Maintenance Inspector, that you 

will comply with appendix I of this part, this 

appendix, and 49 CFR part 40. 

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) of this chapter, and 

iii. Meet the requirements of this appendix as if you were an employer·. 

this requirement under appendix I of this 

part and this appendix. 

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. 1. To register with the FAA, submit the 

following information: 

a. Company name. b. Teltiphone number. 

c. Address where your Antidrug and 

Alcohol Misuse Prevention Program records 

are kept. 

d. Type of safety-sensitive functions you 

perform for an employer (such as flight 

instruction duties, aircraft dispatcher duties, 

maintenance or preventive maintenance 

duties, ground security coordinator duties, 

aviation screening duties, air traffic control 

duties). 

e. Whether you have 50 or more covered 

employees, or 49 or fewer covered 

employees. . . f. A signed statement indicating that: Your 

company will comply with this appendix, 

appendix I of this part, and 49 CFR part 40; 

and, if you are a contractor, you intend to 

provide safety-sensitive functions by contract 

to a part 121 or part 135 certificate holder, 

a sightseeing operator as defined by 

§ 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. 

2. Send this information in the form and 

manner prescribed by the Administrator, in 

duplicate to: The Federal Aviation 

Administration, Office of Aerospace 

Medicine, Drug Abatement Division (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 in paragraph 2. 

4. This registration will satisfy the 

registration requirements for both your 

Antidrug Program under appendix I of this 

part and your Alcohol Misuse Prevention 

Program under this appendix. 

* * * * 
1860 Federal Register I Vol. 69, No. 7 I Monday, January 12, 2004 I Rules and Regulations 

Issued in Washington, DC, on January 5, 

2004. 

Marion C. Blakey, 

Administrator. 

[FR Doc. 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 considered FAA-approved if they are approved by the State of Design Authority 

(or their delegated agent). You are required 

to assure the product is airworthy before it 

is returned to service. 

(3) Reporting Requirements: For any. 

reporting requirement in this AD, under the 

provisions of the Paperwork Reduction Act, 

the Office of Management 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; 

Bombardier Alert 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, dated August 3, 

2006; Task 21~32-01-000-80~ of the 

Bombardier CRJ Regional Jet Series Aircraft 

Maintenance Manual, CSP B-001, Part 2, 

Volume 1, Revision 28, dated January 20, 

2009; and Task 21-32-01-400-801, of the 

LIST OF EFFECTIVE PAGES 

Bombardier·CRJ Regional Jet 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, 

if done, 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, dated January 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 of the Federal Register 

approved the incorporation by reference of 

this service information under 5 U.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 of the service 

illformation at the FAA, Transport Airplane 

Directorate, 1601 Lind Avenue, SW., Renton, 

Washington. For information on the 

availability of this material at the FAA, call 

425-227-1221 ot 425-227-1152. 

(4) You may also review copies of the 

service information that is incorporated by 

reference at the National Archives and 

Records Administration (NARA). For 

information on the availability of this 

material at NARA, call 202-741~030, or go 

to: http:/ /www.archives.gov/federal_ register/ 

code_ofJederal_regulations/ibr_ 

locations.html. 

Issued in Renton, Washington, on May 6, 

2009. 

Ali Bahrami, 

Manager, Transport Airplane Directorate, 

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 

rule making. 

DATES: Effective Date: July 13, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Rafael Ramos, Office of Aerospace 

Medicine, Drug Abatement Division, 

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 of United States Code. Subtitle 

I, section 106, describes the authority of 

the FAA Administrator. Subtitle VII, 

Aviation Programs, describes in more 

detail the scope of the FAA's authority. 

These rules were originally 

promulgated under the authority 

described in Subtitle VII,Part A Chapter 

451-Alcohol and Controlled 

Substances Testing. Under section 

45102, the FAA is charged with 

prescribing regulations for air carriers 

and foreign air carriers to establish and 

to conduct preemployment, reasonable 

suspicion, random, and post-accident 

drug and alcohol testing. Some of these 

rules, for example those dealing with 

contract air traffic controllers, were 

promulgated under the FAA's general 

rulemaking authority in 49 U.S.C. 

44701(a)(5). 

This rule is intended to reorganize the 

requirements for drug and alcohol 

testing into a single part. It also clarifies 

the rules by, for example, replacing 

references to appendices I and J with 

references to part 120. It is expected that 

this rule will simplify locating specific 

provisions and changes to those 

provisions for individuals and entities 

required to comply with the FAA's drug 

and alcohol testing requirements. For 

this reason, the changes are within the 

scope of our authority ~d are a 

reasonable and necessary exercise of our 

statutory obligations. 

Background 

The regulations governing FAArequired drug and alcohol testing 

requirements currently are scattered 

throughout Chapter I of Title 14, Code 

of Federal Regulations. Requirements 

· for affected certificated airmen are 

located in parts 61, 63, 65, and 67. 
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 included in 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 J of part 121. 

At this time, the FAA is working on 

a major revision of its drug and alcohol 

testing regulations. Given the 

· complexity of that revision and the time 

it will take to complete the rulemaking 

process, the FAA has concluded that in 

the interim it makes sense to pull the 

existing regulations together in one 

place. The FAA expects that doing so 

will clarify the requirements for testing, 

and simplify locating specific 

provisions and changes to those 

provisions for individuals and entities 

that have drug and alcohol testing 

programs. 

This rulemaking will gather the 

existing regulations into the new part, 

remove them from their existing 

locations, and provide cross references 

in parts 91 and 135 to the new part. 

Appendices I and ] themselves set 

forth the requirements for drug and 

alcohol testing programs. Some 

provisions in the current regulations in 

appendices I and J are duplicative. For 

example, the definitions in the 

appendices are mostly verbatim 

duplications. In addition, some of the 

terms defined in the appendices I and 

J are used in parts 121 and 135. Because 

the drug and alcohol 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 of new part 

120. We are therefore including all the 

definitions in section 120.7 of subpart 

A. 

The FAA has begun moving away 

from using the separate terms "antidrug 

program" and "alcohol misuse 

prevention program" in favor-of "drug 

testing program" and "alcohol testing 

program" where appropriate. For 

example, in this rulemaking, we use the 

term "drug testing program" instead of 

"antidrug program" in § 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 confusion related to 

having multiple regulations dealing 

with the same requirements, the FAA is 

combining the drug and alcohol testing 

requirements in current parts 121 and 

135 rather than having separate part 120 

subparts for 121 or 135. Provisions 

unique to operations conducted under 

part 135 are placed at the end of 

relevant sections. 

Organization of New Part 120 

The following table shows the 

derivation of the regulations contained 

in this "final rule: 

.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 of the United States. In 

Flexibility Determination, International developing U.S. standards, this Trade 

Trade Analysis, and Unfunded Act requires agencies to consider 

Mandates Assessment international standards and, where 

Changes to Federal regulations must appropriate, that they be 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 only upon a reasoned written assessment of the costs, benefits, 

determination that the benefits of the and other effects of proposed or final 

intended regulation justify its costs. rules that include a Federal mandate 

Second, the Regulatory Flexibility Act likely to result in the expenditure by 

of 1980 (Pub. L. 96-354) requires State, local, or tribal governments, in the 

agencies to analyze the· economic aggregate, or by the private sector, of 

impact of regulatory changes on small $100 million or more annually (adjusted 

entities. Third, the Trade Agreements for inflation with base year of 1995). 

Act (Pub. L. 96-39) prohibits agencies In conducting these analyses, FAA 

from setting standards that create has determined this rule-(1) Has 

unnecessary obstacles to the foreign . benefits which do justify its costs, is not 

a significant regulatory action as defined 

in the Executive Order and is not 

significant as defined in DOT's 

Regulatory Policies and Procedures; (2) 

will not have a significant impact on a 

substantial number of small entities; (3) 

will have no effect on barriers to 

international trade; and (4) does not 

impose an unfunded mandate on state, 

local, or tribal goverhments, or on the 

private'sector. 

·Department of Transportation Order 

DOT 2100.5 prescribes policies and 

procedures for simplification, analysis, 

and review of regulations. If the 

expected cost impact is so minimal that 

a proposed or final rule does not 

warrant a full evaluation, this order 

permits that a statement to that effect 
Federal Register/Vol. 74, No. 92/Thursday, May 14, 2009/Rules and Regulations 22651 

and the basis for it be included in the 

preamble if a full regulatory evaluation 

of the cost and benefits is not prepared. 

Such a determination has been made for 

. this final rule. The reasoning for this 

determination follows: The FAA is not 

making any substantive changes to the 

drug and alcohol regulations in this 

rulemaking. This action amends the 

FAA's drug and alcohol regulations to 

place them in a new part. This rule 

imposes no costs and provides no 

accrual ofbenefits; and therefore, this 

rule will have no economic impact. 

Regulatory Flexibility Determination 

The Regulatory Flexibility Act of 1980 

(RFA) establishes "as a principle of 

regulatory issuance that agencies shall 

endeavor, consistent with the objective 

ofthe rule and of applicable statutes, to 

fit regulatory and informational 

requirements to the scale of the 

business, organizations, and 

governmental jurisdictions subject to 

regulation." To achieve that principle, 

the RF A requires agencies to solicit and 

consider flexible regulatory proposals 

and to explain the rationale for their 

actions. The RFA covers a wide range of 

small entities, including small 

businesses, not-for-profit organizations 

and small governmental jurisdictions. 

Agencies must perform a review to 

determine whether a proposed or final 

rule will have a significant economic 

impact on a substantial number of small 

entities. If the agency determines that it 

will, the agency must prepare a 

regulatory flexibility analysis as 

described in the Act. 

However, if an agency determines that· 

a proposed or final rule is not expected 

. to have a significant economic impact 

on a .substantial number of small 

entities, section 605(b) of the 1980 RFA 

provides that the head of the agency 

may so certify and a regulatory 

flexibility analysis is not required. The 

certification must include a statement · 

providing the factual basis for this 

· determination, and the reasoning should 

be clear. 

This rule imposes no costs and 

provides no accrual of benefits; and 

therefore, this rule will have no 

economic impact. Tllis action amends 

· the FAA's drug and alcohol regulations 

to place them in a new part. The FAA 

is not making any substantive changes 

to the drug and alcohol regulations in 

this rulemaking. Therefore, as the 

Acting FAA Administrator, I .certify that 

this rule will not have a significant 

economic impact on a substantial 

number of small entities. 

International Trade Analysis 

The Trade Agreements Act of 1979 

(Pub. L. 96-39), as amended by the 

Uruguay Round Agreements Act (Pub . 

L. 103-465), prohibits Federal agencies 

from establishing standards or engaging 

in related activities that create 

unnecessary obstacles to the foreign 

commerce of the United States. 

Pursuant to these Acts, the 

establishment of standards is not 

considered an unnecessary obstacle to 

the foreign commerce of the United 

States, so long as the standard has a 

legitimate domestic objective, such as 

the protection of safety, and does not 

operate in a manner that excludes 

imports that meet this objective. The 

statute also requires consideration of 

international standards and, where 

appropriate, that they be the basis for 

U.S. standards. The FAA has assessed 

the potential effect of this final rule and 

determined that it will have only a 

domestic impact and therefore will not 

create unnecessary obstacles to the 

foreign commerce of the United States. 

Unfunded Mandates Determination 

Title II of the Unfunded Mandates 

Reform Act of 1995 (Pub. L. 104-4) 

requires each Federal agency to prepare 

a written statement assessing the effects 

of any Federal mandate in a proposed or 

final agency rule that may result in an 

expenditure of$100 million or more 

(adjusted annually for inflation) in any 

one year by State, local, and tribal 

governments, in the aggregate, or by the 

private sector; such a mandate is 

deemed to be a "significant regulatory 

action." The FAA currently uses an 

inflation-adjusted value of $136.1 

million in lieu of $100 million. 

This final rule does not contain such 

a mandate. The requirements of Title II 

do not apply. 

':EnVironmental Analysis 

FAA Order 1050.1E identifies FAA 

actions that are categorically excluded 

from preparation of an environmental 

assessment or environmental impact 

statement under the National 

Environmental Policy Act in the 

absence of extraordinary circumstances. 

The FAA has determined this 

rulemaking action qualifies for the 

categorical exclusion identified in 

paragraph 307(k) and involves no 

extraordinary circumstances. 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use 

The FAA has analyzed this Final Rule 

under Executive Order 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 

"significant regulatory action" under 

Executive Order 12866, and it is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. 

Executive Order 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 between the 

Federal Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government, and, therefore, 

does not have federalism implications. 

International Civil Aviation · 

Organ~ation (ICAO) and Joint Aviation 

Regulations · 

In keeping with U.S. obligations 

under the Convention on International 

Civil Aviation, it is FAA policy to 

comply with ICAO Standards and 

Recommended Practices to the 

maximum extent practicable. The FAA 

has determined that this final rule does 

not conflict with any international 

agreement of the United States. 

Paperwork Reduction Act 

Information collection requirements 

associated with the final rule have been 

approved previously by the Office of 

Management and Budget (OMI;I) under 

the provisions of the Paperwork 

Reduction Act of 1995 (44 U.S. C. 

3507(d)) and have been assigned OMB . 

Control Numbers 2105-0529, 2120-

0535,2120-0685,2120-0689. 

Good Cause Justification for Adoption 

Without Prior Notice 

We find good cause exists under 5 

U.S.C. 553(b)(B) and (d)(3) to implement 

this final rule immediately without 

prior notice and comment. This rule 

merely reorganizes existing regulations 

governing drug and alcohol testing into 

their own part and makes clarifying 

changes to the. existing parts of the rules 

necessitated by the reorganization. 

Proprietary or Confidential Business 

Information 

. Do not file in the docket information 

that you consider to be proprietary or 

confidential business information. Send 

or deliver this information directly to· 

the person identified in the FOR FURTHER 

INFORMATION CONTACT section of this 

document. You must mark the 

information that you consider 

proprietary or confidential. If you send 
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 of the disk or CD-ROM 

and also identify electronically within 

the disk or CD-ROM the specific 

information that is proprietary or 

confidential. 

Under§ 11.35(b), when we are aware· 

of proprietary information filed with a 

comment, we do not place it in the 

docket. We hold it in a separate file to 

which the public does not have access, 

and place a note in the docket that we 

have received it. If we receive a request 

to examine or copy this information, we 

treat it as any other request under the 

·Freedom of Information Act (5 U.S.C. 

552). We process such a request under 

the DOT procedures found in 49 CFR 

part 7. 

Availability ofRulemaking Documents 

You can get an electronic copy of 

rulemaking documents using the 

Internet by1. Searching the Federal eRulemaking 

Portal (http://www.regulations.gov); 

2. Visiting the FAA's Regulations and 

Policies Web page at http:// 

www.faa.gov/regulation _policies/; or 3. Accessing the Government Printing 

Office's Web page at http:// 

www.gpoaccess.gov/fr/index.html. 

You can also get a copy by sending a 

request to the Federal Aviation 

Administration, Office of Rulemaking, 

ARM-1, 800 Independence Avenue, 

SW., Washington, DC 20591, or by 

calling (202) 267-9680. Make sure to 

identify the amendment number or 

docket number of this rulemaking. 

Anyone is able to search the 

electronic form of all comments 

received into any of our dockets by the 

name of the individual submitting the 

comment (or signing the comment, if 

submitted on behalf of an association, 

business, labor union, etc.). You may 

review DOT's complete Privacy Act 

statement in the Federai Register 

published on April11, 2000 (Volume 

65, Number 70; Pages 19477-78) or you 

may visit http://Docketslnfo.dot.gov. 

Small Business Regulatory Enforcement 

Fairness Act 

The Small Business Regulatory 

Enforcement Fairness Act (SBREF A) of 

1996 requires FAA to comply with 

small entity requests for information or 

advice .about compliance with statutes 

and regulations within its jurisdiction. If 

you are a small entity and you have a 

question regarding this document, you 

may contact your local FAA official, or 

the person listed under the FOR FURTHER 

INFORMATION CONTACT heading at the 

beginning of the preamble. You can find 

out more about SBRF A on the Internet 

at http://www.faa.gov/ 

regulations _policies/rul emaking/ 

sbre_act/. 

List of Subjects 

14 CFR Part 61 

Aircraft, Airmen, Alcohol abuse, 

Aviation safety, Drug abuse, Recreation 

and recreation areas, Reporting and 

recordkeeping requirements, Security 

measures, Teachers. 

14 CFR Part 63 

Aircraft, Airmen, Alcohol abuse, 

Aviation safety, Drug abuse, Navigation 

(air), Reporting and recordkeeping 

requirements, Security measures. 

14 CFR Part 65 

Air traffic controllers, Aircraft, 

Airmen, Airports, Alcohol abuse, 

Aviation safety, Drug abuse, Reporting 

and recordkeeping requirements, 

Security measures. 

14 CFR Part 91 

Afghanistan, Agriculture, Air traffic 

control, Aircraft, Airmen, Airports, · 

Aviation safety, Canada, Cuba, Ethiopia, 

Freight, Mexico, Noise control, Political 

candidates, Reporting and 

recordkeeping requirements, 

Yugoslavia. 

14 CFR Part 120 

Alcoholism, Air carriers, Air traffic 

control, Airmen, Alcohol abuse, Alcohol 

testing, Aviation safety, Charter flights, 

Commercial air tour operators, Contract 

air traffic controllers, Drug abuse, Drug 

testing, Operators, Reporting and 

recordkeeping requirements, Safety, 

Safety-sensitive, Transportation. 

14 CFR Part 121 

Air carriers, Aircraft, Airmen, Alcohol 

abuse, Aviation safety, Charter flights, 

Drug abuse, Drug testing, Reporting and 

recordkeeping requirements, Safety, 

'transportation. · 

14 CFR Part 135 

Air taxis, Aircraft, Airmen, Alcohol 

abuse, Aviation safety, Drug abuse, Drug 

testing, Reporting and recordkeeping 

requirements. 

The Final Rule 

• In consideration of the foregoing, the 

Federal Aviation Administration adds 

part 120 and amends parts 61, 63, 65, 

91, 121, and 135 of Title 14 of the Code 

of Federal Regulations (14 CFR parts 61, 

63, 65, 91, 121, 135), as follows: 

PART 51-CERTIFICATION: PILOTS, 

FLIGHT INSTRUCTORS, AND GROUND 

INSTRUCTORS 

• 1. The authority citation for part 61 

continues to read as follows: 

Authority: 49 U.S.C. 106(g), 40113, 44701-

44703, 44707, 44709-44711, 45102-45103, 

45301-45302. 

§61.14 [Removed and Reserved] 

• 2. Section 61.14 is removed and 

reserved. 

PART 53-CERTIFICATION: FLIGHT 

CREWMEMBERS OTHER THAN 

PILOTS 

• 3. The authority citation for part 63 

continues to read as follows: 

Authority: 49 U.S.C. 106(g), 40113,44701-

44703,44707,44709-44711,45102-45103, 

45301-45302. 

§63.12b [Removed and Reserved] 

• 4. Section 63.12b is removed and 

reserved. 

PART 55-CERTIFICATION: AIRMEN 

OTHER THAN FLIGHT 

CREWMEMBERS 

• 5. The authority citation for part 65 

. continues to read as follows: 

Authority: 49 U.S.C. 106(g). 40113, 44701-

44703,44707,44709-44711,45102-45103, 

45301-45302. 

§65.23 [Removed and Reserved] 

• 6. Section 65.23 is removed and 

reserved. 

§ 65.46 [Removed and Reserved] 

• 7. Section 65.46 is removed and 

reserved. 

§ 65.46a [Removed and Reserved] 

• 8. Section 65.46a 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 authority citation for part 91 

continues to read as follows: . 

Authority: 49 U.S.C. 106(g), 1155, 40103, 

40113,40120,44101,44111,44701,44704, 

44709,44711,44712,44715,44716,44717, 

44722,46306,46315,46316,46504,46506-

46507, 47122, 47508, 47528-47531, articles 

12 and 29 of the Convention on International 

Civil Aviation (61 Stat. 1180). 

• 11. Section 91.147(d) is revised to 

read as follows: 

§ 91.147 Passenger-carr}iing flights for 

compensation or hire. 

* * * * *. 

(d) The Operator must register and 

implement its drug and alcohol testing 

programs in accordance with part 120 of 

this chapter. · 

* * * * * 
Federal Register I Vol. 74, No. 92 I Thursday, May 14, 2009 I Rules and Regulations 22653 

• 12. Section 91.1047(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 company testing program is 

comparable to the federally mandated 

drug and alcohol testing program 

required under part 120 of this chapter 

regarding the information in paragraphs 

(c)(1) and (c)(2) of this section. 

* * * * * 

• 13. Add Part 120 to read as follows: 

PART 120-DRUG AND ALCOHOL 

TESTING PROGRAM 

Subpart A-General 

Sec. 

120.1 Applicability. 

120.3 Purpose, 

120.5 Procedures. 

120.7 Definitions. 

Subpart 8-lndividuals Certificated Onder 

Parts 61, 63, and 65 

120.11 Refusal to submit to a drug or 

alcohol test by a Part 61 certificate 

holder. 

120.13 Refusal to submit to a drug or 

alcohol test by a Part 63 certificate 

holder. 

120.15 Refusal to submit to a drug or 

alcohol test by a Part 65 certificate 

holder. 

Subpart C-Air Traffic Controllers 

120.17 Use of prohibited drugs. 

120.19 Misuse of alcohol. 

120.21 Testing for alcohol. 

Subpart D-Part 119 Certificate Holders 

Authorized To Conduct Operations Under 

Part 121 or Part 135 or Operators Under 

§ 91.147 of This Chapter and SafetySensitive Employees 

120.31 Prohibited drugs. 

120.33 Use of prohibited drugs. 

120.35 Testing for prohibited drugs. 

120.37 Misuse of alcohol. 

120.39 Testing for alcohol. 

Subpart E-Drug Testing Program 

Requirements 

120.101 Scope. 

120.103 General. 

120.105 Employees who must be tested. 

120.107 Substances for which testing 

must ·be conducted. 

120.109 Types of drug testing required. 

120.111 Administrative and other matters. 

120.113 Medical Review Officer, Substance 

Abuse Professional, and employer 

responsibilities. 

120.115 Employee Assistance Program 

(EAP). 

120.117 Implementing a drug testing 

program. · 

120.119 Annual reports. 

120.121 Preemption. 

120.123 Drug testing outside of the territory 

of the United States. 

120.125 Waivers from 49 CFR 40.21. 

Subpart F-Aicohol Testing Program 

Requirements 

120,201 Scope. 

120.203 General. 

120.205 Preemption of State and local laws. 

120.207 Other requirements imposed by 

employers. 

120.209 Requirement for notice. 

120.211 Applicable Federal regulations. 

120.213 Falsification. 

120.215 'covered employees. 

120.217 Tests required. 

120.219 Handling of test results,-record 

retention, and confidentiality. 

120.221 Consequences for employees 

engaging in alcohol-related conduct. 

120.223 Alcohol misuse information, 

training, and substance abuse · 

professionals. . 

120.225 How to implement an alcohol 

· testing program. 

120.227 Employees located outside the U.S. 

Authority: 49 U.S.C. 106(g), 40101-40103, 

40113,40120,41706,41721,44106,44701, 

44702,44703,44709,44710,44711,45101-

45105;46105,46306. 

Subpart A-General 

§ 120.1 Applicability. 

This part applies to the following 

persons: 

(a) All air carriers and operators 

certificated under part 119 of this 

chapter authorized to conduct 

operations under part 121 or part 135 of 

this chapter, all air traffic control 

facilities not operated by the FAA or by 

or under contract to the U.S. military; 

and all operators as defined in 14 CFR 

91.147. 

(b) All individuals who perform, 

either directly or by contract, a safetysensitive function listed in subpart E or 

subpart F of this part. 

(c) All part 145 certificate holders 

who perform safety-sensitive functions 

and eJect to implement a drug and 

alcohol testing program under this part. 

(d) All contractors who elect to 

implement a drug and alcohol testing 

program under this part. 

§120.3 Purpose. 

The purpose of this part is to establish 

a prograin designed to help prevent 

accidents and injuries resulting from the 

use of prohibited drugs or the misuse of 

alcohol by employees who perform 

safety-sensitive functions in aviation. 

§ 120.5 Procedures. 

Each employer ·having a drug and 

alcohol testing program under this part 

. must ensure that all drug arid alcohol 

testing conducted pursuant to this part 

complies with the procedures set forth 

in 49 CFR part 40. 

§ 120.7 Definitions. 

For the purposes of this part, the 

following definitions apply: 

(a) Accident means an occurrence 

associated with the operation of an 

aircraft which takes place between the 

time any individual boards the aircraft 

with the intention of flight and all such 

individuals have disembarked, and in 

which any individual suffers death or 

serious injury, or in which the aircraft 

receives substantial damage. 

(b) Alcohol means the intoxicating 

agent in beverage alcohol, ethyl alcohol, 

or other low molecular weight alcohols, 

including methyl or isopropyl alcohol. 

(c) Alcohol concentration (or content) 

means the alcohol in a volume of breath 

expressed in terms of grams of alcohol 

·per 210 liters of breath as indicated by 

an evidential breath test under subpart 

F of this part. 

(d) Alcohol use means the 

consumption of ariy beverage, mixture, 

or preparation, including any 

medication, containing alcohol. 

(e) Contractor is an individual or 

company that performs a safety- . 

sensitive function by contract for an 

employer or another contractor. 

(t) Covered employee means an 

individual who performs, either directly 

or by contract, a safety-sensitive 

function listed in §§ 120.105 and 

120.215 for an employer (as defined in 

paragraph (i) of this section). For 

purposes of pre-employment testing 

only, the term "covered employee" 

includes an individual applying to 

perform a safety-sensitive function. 

(g) DOT agency means an agency (or· 

"operating administration") of the 

United States Department of 

Transportation administering 

regulations requiring drug testing (14 

CFR part 61 et al.; 46 CFR part 16; 49 

CFR parts 199, 219, and 382) in 

accordance with 49 CFR part 40. 

(h) Employee is an individual who is 

hired, either directly or by contract, to 

perform a safety-sensitive function for 

an employer, as defined in paragraph (i) 

of this section. An employee is also an 

individual who transfers into a position 

to perform a safety-sensitive function for 

an employer. 

(i) Employer is a part 119 certificate 

holder with authority to operate under 

parts 121 and/or 135 of this chapter, an 

operator as defined in§ 91.147 of this 

chapter, or an air traffic control facility 

not operated by the FAA or by or under 

contract to the U.S. Military. An 

employer may use a contract employee 

who is not included under that 

employer's FAA-mandated drug testing 
22654 Federal Register/Val. 74, No. 92/Thursday, May 14, 2009/Rules and Regulations 

program to perform a safety-sensitive 

function only if that contract employee 

is included under the contractor's FAAmandated drug testing program and is 

performing a safety-sensitive function 

on behalf of that contractor (i.e., within 

the scope of employment with the 

contractor.) 

(j) Hire means retaining an individual 

for a safety-sensitive function as a paid · 

employee, as a volunteer, or through 

barter or other form of compensation. 

(k) Performing (a safety-sensitive 

function): an employee is considered to 

be performing a safety-sensitive 

function during any period in which he 

or she is actually performing, ready to 

perform, or immediately available to 

perform such function. . (l) Positive rate for random drug 

testing means the number of verified 

positive results for random drug tests 

conducted under subpart E of this part, 

plus the number of refusals of random 

drug tests required by subpart E of this 

part, divided by the total number of 

random drug test results (i.e., positives, 

negatives, and refusals) under subpart E 

of this part. . · . . (m) Prohibited drug means marijuana, 

cocaine, opiates, phencyclidine (PCP), 

and amphetamines, as specified in 49 · 

CFR40.85. 

(n) Refusal to submit to alcohol test 

means that a covered employee has 

engaged in conduct including but not· 

limited to that described in 49 CFR 

40.261, or has failed to remain readily 

available for post-accident testing as 

required by subpart F of this part. 

to) Refusal to submit to drug test 

means that an employee engages in 

conduct including but not limited to 

that described in 49 CFR 40.191. 

(p) Safety-sensitive fun'ction means a 

function listed in§§ 120.105 and 

120.215. 

(q) Verified negative drug test result 

means a drug test result from an HHScertified laboratory that has undergone 

review by an MRO arid has been 

determined by the MRO to be a negative 

result. 

(r) Verified positive drug test result 

means a drug test result from an HHScertified laboratory that has undergone 

. review by an MRO and has been 

determined by the MRO to be a positive 

result. . (s) Violation rate for random alcohol 

testing means the number of 0.04, and 

·above, random alcohol confirmation. test 

results conducted under subpart F of 

this part, plus the number of refusals of 

random alcohol tests required by 

subpart F of this part, divided by the 

total number of random alcohol 

screening tests (including refusals) 

conducted under subpart F of this part. 

Subpart 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 of this chapter and who are 

subject to drug and alcohol testing 

under this part. · (b) Refusal by the holder of a 

certificate issued. under part 61 of this 

chapter to take a drug or alcohol test 

required under the provisions of this 

part is grounds for: 

(1) Denial of an application for any 

certificate, rating, or authorization 

issued under part 61 of this chapter for 

a period of up to 1 year after the date 

of such refusal; and 

(2) Suspension or revocation of any 

certificate, rating, or authorization 

issued under part 61 of this chapter. 

§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 of a 

certificate issued under part 63 of this 

chapter to take a drug or alcohol test 

required under the provisions of this 

part is grounds for: 

(1) Denial of an application for any 

certificate, rating, or authorization 

issued under part 63 of this chapter for 

a period of up to 1 year after the date 

of such refusal; and 

(2) Suspension or revocation of any 

certificate, rating, or authorization 

issued under part 63 of this chapter. 

§ 120.15 Refusal to submit to a drug or 

alcohol test by a Part 65 certificate holder .. 

(a) This section applies to all 

individuals who hold a certificate under 

part 65 of this chapter and who are 

subject to drug and alcohol testing 

under this part. (b) Refusal by the holder of a 

certificate issued under part 65 of this 

chapter to take a drug or alcohol test 

required under the provisions of this 

part is grounds for: 

(1) Denial of an application for any 

certificate, rating, or authorization 

issued under part 65 of this chapter for 

a period of up to 1 year after the date 

of such refusal; and · ·(2) Suspension or revocation of any 

certificate, rating, or authorization 

issued under part 65 of this chapter. 

Subpart c-Air Traffic Controllers 

§ 120.17 Use of prohibited drugs. 

(a) Each employer shall provide each 

employee performing a function listed 

in subpart E of this part, and his or her 

supervisor, with the training specified 

in tha,t subpart. No employer may use 

any contractor to perform an air traffic 

control function unless that contractor 

provides each of its employees 

performing that function for the 

employer, and his or her supervisor, 

with the training specified in subpart E 

of this part. 

(b) No employer may knowingly use 

any individual to perform, nor may any 

individual perform for an employer, 

either directly or by contract, any air 

traffic control function while that 

individual has a prohibited drug, as 

defined in subpart E of this part, in his 

or her system. 

(c) No employer shall knowingly use 

any individual to perform, nor may any 

individual perform for an employer, 

either directly or by contract, any air 

traffic control function if the individual 

has a verified positive drug test result . 

on, or has refused to submitto, a drug 

. test required by subpart E of this part 

and the individual has not met the 

requirements of subpart E of this part for 

returning to the performance of safetysensitive duties.· 

(d) Each employer shall test each of 

its employees who perform any air 

traffic control function in accordance 

with subpart E of this part. No employer 

may use any contractor to perform any 

air traffic control function unless that 

contractor tests each employee 

performing such a function for the 

employer in accordance with subpart E 

of this part. 

§120.19 Misuse of alcohol . . 

(a) This section applies to covered 

employees who perform air traffic 

control duties directly or by contract for 

an employer that is an air traffic control 

facility not operated by the FAA or the 

US military. -

(b) Alcohol concentration. No covered 

employee shall report for duty or remain 

on duty requiring the performance of 

safety-sensitive functions while having 

an alcohol concentration of 0.04 or 

greater. No employer having actualknowledge that an employee has an 

alcohol concentration of 0.04 or greater 

shall permit the employee to perform or 

continue to perform safety-sensitive 

functions. 

(c) On-duty use. No covered employee 

shall use alcohol while performing . 

safety-sensitive functions. No employer 

having actual knowledge that a covered 

employee is using alcohol while 

performing safety-sensitive functions 

shall permit the employee to perform or 

continue to perform safety-sensitive 

functions. 
Federal Register/Val. 74, No. 92/Thursday, May 14, 2009/Rules and Regulations 22655 

(d) Pre-duty use. No covered 

employee shall perform air traffic 

control duties within 8 hours after using 

alcohol. No employer having actual 

knowledge that such an employee has 

used alcohol within 8 hours shall 

permit the employee to perform or 

continue to perform air traffic control 

duties. 

(e) Use following an accident. No 

covered employee who has actual 

knowledge of an accident involving an 

aircraft for which he or she performed 

a safety-sensitive function at or near the 

time of the accident shall use alcohol for 

8 hours following the accident, unless 

he or she has been given a post-accident 

test under subpart F of this part or the 

employer has determined that the 

employee's performance could not have 

contributed to the accident. 

(f) Refusal to submit to a required 

alcohol test. A covered employee may 

not refuse to submit to any alcohol test 

required under subpart F of this part. 

An employer may not permit an 

employee who refuses to submit to such 

a test to perform or continue to perform 

safety-sensitive functions. 

§120.21 Testing for alcohol. 

(a) Each air traffic control facility not 

operated by the FAA or the U.S. military 

must establish an alcohol testing 

program in accordance with the 

provisions of subpart F of this part. 

(b) No employer shall use any 

individual who meets the definition of 

covered employee in subpart A of this 

part to perform a safety-sensitive 

function listed in subpart F of this part 

unless that individual is subject to 

testing for alcohol misuse in accordance 

with the provisions of that subpart. 

Subpart 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 subpart E of this 

part, and his or her supervisor, with the 

training specified in that subpart. 

(b) No certificate holder or operator 

may use any contracto.r to perform a 

function listed in subpart E of this part 

unless that contractor provides each of 

its employees performing that function 

for the certificate holder or operator, 

and his or her supervisor, with the 

training specified in that subpart. 

§120.33 Use of prohibited drugs. 

(a) This section applies to individuals 

who perform a function listed in subpart 

E of this part for a certificate holder or 

operator. For the purpose ofthis section, 

an individual who performs such a 

function pursuant to a contract with the 

certificate holder or the operator .is 

considered to be performing that. 

function for the certificate holder or the 

operator. · 

(b) No certificate holder or operator 

may knowingly use any individual to 

perform, nor may any.individual 

perform for a certificate holder or an 

operator, either directly or by contract, 

any function listed in subpart E of this 

part while that individual has a 

prohibited drug, as defined in that 

subpart, in his or her system. 

(c) No certificate holder or operator 

shall knowingly use any individual to 

perform, nor shall any individual 

perform for a certificate holder or 

operator, either directly or by contract, 

any safety-sensitive function if that 

individual has a verified positive drug 

test result on, or has refused to submit 

to, a drug test required by subpart E of 

this part and the individual has not met 

the requirements of that subpart for 

returning to the performance of safetysensitive duties. 

§ 120.35 Testing for prohibited drugs. 

(a) Each certificate holder or operator 

shall test each of its employees who 

perform a function listed in subpart E of 

this part in accordance with that 

subpart. 

. (b) Except as provided in paragraph 

(c) of this section, no certificate holder 

or operator may use any contractor to 

perform a function listed in subpart E of 

this part unless that contractor tests 

each employee performing such a 

function for the certificate holder or 

operator in accordance with that 

subpart. 

(c) If a certificate holder conducts an 

~n-demand operation into an airport at 

which n<i maintenance providers are 

available that are subject to the 

requirements of subpart E of this part 

and emergency maintenance is required, 

the certificate holder may use · 

individuals not meeting the 

requirements of paragraph (b) of this 

section to provide such emergency 

maintenance under both of the 

following conditions: 

(1) The certificate holder must give 

written notification of the emergency 

maintenance to the Drug Abatement 

Program Division, AAM-800, 800 

Independence Avenue, SW., . 

Washington, DC 20591, wit4in 10 days 

after being provided same in accordance 

with this paragraph. A certificate holder 

must retain copies of all such written 

notifications for two years. 

(2) The aircraft must be reinspected 

by maintenance personnel who meet the 

requirements of paragraph (b) of this 

section when the aircraft is next at an 

airport where such maintenance 

personnel are available. 

(d) For purposes of this section, 

emergency maintenance means 

maintenance that-

(1) Is not scheduled and 

(2) Is made necessary by an aircraft 

condition not discovered prior to the 

departure for that location. 

§ 120.37 Misuse of alcohol. 

(a) General. This section applies to 

covered employees who perform a · 

function listed in subpart F of this part 

for a certificate holder. For the purpose 

of this section, an individual who meets 

the definition of covered employee in 

subpart F of this part is considered to be 

performing the function for the 

certificate holder. 

(b) Alcohol concentration. No covered 

employee shall report for duty or remain 

on duty requiring the performance of 

safety-sensitive functions while having 

an alcohol concentration of 0.04 or 

greater. No certificate holder having 

actual knowledge that an employee has 

an alcohol concentration of 0.04 or 

greater shall permit the employee to 

perform or continue to perform safetysensitive functions. 

(c) On-duty use. No covered employee 

shall use alcohol while performing 

safety-sensitive functions. No certificate 

holder having actual knowledge that a 

covered employee is using alcohol 

while performing safety-sensitive 

functions shall permit the employee to 

perform or continue to perform safety- . 

sensitive functions. 

(d) Pre-duty use. (1) No covered 

employee shall perform flight 

crewmember or flight attendant duties 

·within 8 hours after using alcohol. No 

certificate holder having actual 

knowledge that such an employee has 

used alcohol within 8 hours shall 

permit the employee to perform or 

continue to perform the specified 

duties. 

(2) No covered employee shall 

perform safety-sensitive duties other 

than those specified in paragraph (d)(1) 

of this section within 4 hours after using 

alcohol. No certificate holder having 

actual knowledge that such an employee 

has used alcohol within 4 hours shall 

permit the employee to perform or to 

continue to perform safety-sensitive 

functions. 

(e) Use following an accident. No 

covered employee who has actual 

knowledge of an accident involving an 

aircraft for which he or she performed 

a safety-sensitive function at or near the 
22656 Federal Register/Val. 74, No. 92/Thursday, May 14, 2009/Rules and Regulations 

time of the accident shall use alcohol for 

8 hours following the accident, unless 

he or she has b_een given a post-accident 

test under subpart F of this part, or the 

. employer has determined that the 

employee's performance could not have 

contributed to the accident. 

(f) Refusal to submit to a required 

alcohol test. A covered employee must 

not refuse to submit to any alcohol test 

required under subpart F of this part. A 

certificate holder must not permit an 

employee who refuses to submit to such 

a test to perform or continue to perform 

safety-sensitive functions. 

§ 120.39 Testing for alcohol. 

(a) Each ·certificate holder must 

establish an alcohol testing program in 

accordahce with the provisions of 

subpart F of this part. 

(b) Except as provided in paragraph 

(c) of this section, no certificate holder 

or operator may use any individual who 

meets the definition of covered 

employee in subpart A of this part to 

perform a safety-sensitive function 

listed in that subpart F of this part 

unless that individual is subject to 

testing for alcohol misuse in accordance 

with the provisions of that subpart. 

(c) If a certificate holder conducts an 

on-demand operation into an airport at 

which no maintenance providers are 

available that are subject to the 

requirements of subpart F of this part 

and emergency maintenance is required, 

the certificate holder may use 

individuals not meeting the 

requirements of paragraph (b) of this 

section to provide such emergency 

maintenance under both of the 

following conditions: 

(1) The certificate holder must give 

written notification of the emergency 

maintenance to the Drug Abatement 

Program Division, AAM-800, 800 

Independence Avenue, SW., 

Washington, DC 20591, within 10 days 

after being provided same in accordance 

with this paragraph. A certificate holder 

must retain copies of all such written 

notifications for two years. 

(2) The ·aircraft must be reinspected 

. by maintenance personnel who meet the 

requirements of paragraph (b) of this 

section when the aircraft is next at an 

airport where such maintenance 

personnel are available. 

(d) For purposes of this section, 

emergency maintenance means 

maintenance that-

(1) Is not scheduled and 

(2) Is made necessary by an aircraft 

condition not discovered prior to the 

departure for that location. 

Subpart E-Drug Testing Program 

Requirements 

§120.101 Scope. 

This subpart contains the standards 

and components that must be included 

in a drug testing program required by 

this part. 

§120.103 General. 

(a) Purpose. The purpose of this 

subpart is to establish a program 

designed to help prevent accidents and 

injuries resulting from the use of 

prohibited drugs by employees who 

perform safety-sensitive functions. 

(b) DOT procedures. (1) Each 

employer shall ensure that drug testing 

programs conducted pursuant to 14 CFR 

parts 65, 91, 121, and 135 comply with 

the requirements of this subpart and the 

"Procedures for Transportation 

Workplace Drug Testing Programs" 

published by the Department of 

Transportation (DOT) (49 CFR part 40). 

(2) An employer may not use or 

contract with any drug testing 

laboratory that is not certified by the 

Department of Health and Human 

Services (HHS) under the National 

Laboratory Certification Program. 

(c) Employer responsibility. As an 

employer, you are responsible for all 

actions of your officials, representatives, 

and service agents in carrying out the 

requirements of this subpart and 49 CFR 

part 40. 

(d) Applicable Federal Regulations. 

The following applicable regulations 

appear in 49 CFR or 14 CFR: 

(1) 49 CFR Part 40-Procedures for 

Transportation Workplace Drug Testing 

Programs 

(2) 14 CFR: 

(i) § 67.107-First-Class Airman 

Medical Certificate, MentaL 

(ii) § 67.207-Second-Class Airman 

Medical Certificate, Mental. · (iii) §67.307-Third-ClassAirman 

Medical Certificate, Mental. 

(iv) § 91.147-Passenger carrying 

flight for compensation or hire. 

(e) Falsification. No individual may 

make, or cause to be made, any of the 

following: 

(1) Any fraudulent or intentionally 

false statement in any application of a 

drug testing program. 

(2) Any fraudulent or intentionally 

false entry in any record or report that 

is made, kept, or used to show 

compliance with this part. 

(3) Any reproduction.or alteration, for 

fraudulent purposes, of any report or 

record required to be kept by this part. 

§ 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 subpart must be 

subject to drug testing under a drug 

testing program implemented in 

accordance with this subpart. This 

includes full-time, part-time, temporary, 

and intermittent employees regardless 

of the degree of supervision. The 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 conduct the 

types of testing described in this section 

in accordance with the procedures set 

forth in this subpart and the DOT 

"Procedures for Transportation · 

Workplace Drug Testing Programs" (49 

CFR part 40). 

(a) Pre-employment drug testing. (1) 

No employer may hire any individual 

for a safety-sensitive function listed in 

§ 120.105 unless the employer first 

conducts a pre-employment test 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 and receives a 

verified negative drug test result for the 

individual. 

(3) Employers must conduct another 

pre-employment test and receive a 

verified negative drug test result before 

hiring or transferring an individual into 

a safety-sensitive function if more than 

180 days elapse between conducting the 

pre-employment test required by 

paragraphs (a)(1) or (2) of this section 

and hiring or transferring the individual 

into a safety-sensitive function, 

resulting in that individual being 

brought under an FAA drug testing 

program. . ( 4) If the following criteria are met, an 

employer is permitted to conduct a pre-
Federal Register/Val. 74, No. 92/Thursday, May 14, 2009/Rules and Reguiations 22657 

employment test, and if such a test is 

conducted, the employer must receive a 

negative test result before putting the 

individual into a safety-sensitive 

function: 

(i) The individual previously 

performed a safety-sensitive function for 

the employer and the employer is not 

required to pre-employment test the 

individual under paragraphs (a)(1) or (2) 

of this section before putting the 

individual to work in a safety-sensitive 

function; 

(ii) The employer removed the 

individual from the employer's random 

testing program conducted under this 

subpart for reasons other than a verified 

positive test result on an FAA-mandated 

drug test or a refusal to submit to such · 

testing; and 

(iii) The individual will be returning 

to the performance of a safety-sensitive 

function. 

(5) Before hiring or transferring an 

individual to a safety-sensitive function, 

the employer must advise each 

individual that the individ,ual will be 

required to undergo pre-employment 

testing in accordance with this subpart, 

to determine the presence of marijuana, 

cocaine, opiates, phencyclidine (PCP), 

and amphetamines, or a metabolite of 

those drugs in the individual's system. 

The employer shall provide this same 

notification to each individual required 

by the employer to undergo preemployment testing under paragraph 

(a)(4) of this section. . (b) Random drug testing. (1) Except as 

provided in paragraphs (b)(2) through 

(b)(4) of this section, the minimum 

annual percentage rate for random drug 

testing shall be 50 percent of covered 

employees. 

(2) The Administrator's decision to 

increase or decrease the minimum 

annual percentage rate for random drug 

testing is based on the reported positive 

rate for the entire industry. All 

information used for this determination 

is drawn from the statistical reports 

required by§ 120.119. In order to ensure 

reliabilitY of the data, the Administrator 

considers the quality and completeness 

of the reported data, may obtain 

additional information or reports from 

employers, and may make appropriate 

modifications in calculating the 

industry positive rate. Each year, the 

Administrator will publish in the 

Federal Register the minimum annual 

percentage rate for random drug testing 

of covered employees. The new 

minimum annual percentage rate for 

random drug testing will be applicable 

starting January 1 of the calendar year 

following publication. 

(3) When the minimum annual 

percentage rate for random drug testing 

is 50 percent, the Administrator may 

lower this rate to 25 percent of all 

covered employees if the Administrator 

determines that the data received under 

the reporting requirements of this 

subpart for two consecutive calendar 

years indicate that the reported positive 

rate is less than 1.0 percent. 

(4) When the minimum annual 

percentage rate for random drug testing 

is 25 percent, and the data received 

under the reporting requirements of this 

subpart for -any calendar year indicate 

that the reported positive rate is equal 

to or greater than 1.0 percent, the 

Administrator will increase the 

minimum annual percentage rate for 

.random drug testing to 50 percent of all 

covered employees. 

(5) The selection of employees for 

random drug testing shall be made by a 

scientifically valid method, such as a 

random-number table or a computerbased random number generator thatis 

matched with employees' Social 

Security numbers, payroll identification 

numbers, or other comparable 

identifying numbers. Under the 

selection process used, each covered 

employee shall have an equal chance of 

being tested each time selections are 

made. 

(6) As an employer, you must select 

and test a percentage of employees at 

least equal to the minimum annual 

percentage rate each year. 

(i) As an employer, to determine 

whether you have met the minimum 

annual percentage rate, you must divide 

the number of random testing results for 

safety-sensitive employees by the 

average number of safety-sensitive 

employees eligible for random testing. 

(A) To calculate whether you have 

met the annual minimum percentage 

rate, count all random positives, random 

negatives, and random refusals as your 

;'random testing results." . (B) To calculate the average number of 

safety-sensitive employees eligible for 

random testing throughout the year, add 

the total number of safety-sensitive 

employees eligible. for testing during 

each random testing· period for the year 

and divide that total by the number of 

random testing periods. Only safetysensitive employees are to be in an 

employer's random testing pool, and all 

safety-sensitive employees must be in 

the random pool. If you are an employer 

conducting random testing more often 

than once per month (e.g., you select 

daily, weekly, bi-weekly) you do not 

need to compute this total number of 

safety-sensitive employees more than on 

a once per month basis. 

(ii) As an employer, you may use a 

service agent to perform random 

selections for you, and your safetysensitive employees may be part of a 

larger random testing pool of safetysensitive employees. However, you 

must ensure that the service agent you 

use is testing at the appropriate 

percentage established for your industry 

and that only safety-sensitive employees 

are in the random testing pool. For 

example: 

(A) If the service agent has your 

employees-in a random testing pool for 

your company alone, you must ensure 

that the testing is conducted at least at 

the minimum annual percentage rate 

under this part. 

(B) If the service agent has your 

employees in a random testing pool 

combined with other FAA-regulated 

companies, you must ensure that the 

testing is conducted at least at the 

minimum annual percentage rate under 

this part. 

(C) If the service agent has your 

employees in a ra:ndom testing pool 

combined with other DOT-regulated 

companies, you must ensure that the 

testing is conducted at least at the 

highest rate required for any DOT-· 

regulated company in the pool. 

(7) Each employer shall ensure that 

random drug tests conducted under this 

subpart are unannounced and that the 

dates for administering random tests are 

spread reasonably throughout the 

calendar year. 

(8) Each employer shall require that 

each safety-sensitive employee who is 

notified of selection for random drug 

testing proceeds to the collection site 

immediately; provided, however, that if 

the employee is performing a safetysensitive function at the time of the 

notification, the employer shall instead 

ensure that the employee ceases to 

perform the safety-sensitive function 

and proceeds to the collection site as soon as possible. · 

(9) If a given covered employee is 

subject to random drug testing under the 

drug testing rules of more than one DOT 

agency, the employee shall be subject to 

random drug testing at the percentage 

· rate established for the calendar year by 

the DOT agency regulating more than 50 

percent of the employee's function. · 

(10) If an employer is required to 

conduct random drug testing under the 

. drug testing rules of more than one DOT 

agency, the employer may-:- · 

(i) Establish separate pools for random 

selection, with each pool containing the 

covered employees who are subject to 

testing at the same required rate; or 

(ii) Randomly select covered 

employees for testing at the highest 

percentage rate established for tb.e 

calendar year by any DOT agency to 

which the employer is 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 of more than one DOT agency 

shall provide each, such agency access to 

the employer's records of random drug 

testing, as determined to be necessary 

by the agency to ensure the employer's 

compliance with the rule. 

(c) Post-accident drug testing. Each 

employer shall test each employee who 

performs a safety-sensitive function for 

the presence of marijuana, cocaine, 

opiates, phencyclidine (PCP), and 

amphetamines, or a metabolite of those 

· drugs in the employee's system if that 

employee's performance either 

contributed to an accident or can not be 

completely discounted as a contributing 

factor to the accident. The employee 

shall be .tested as soon as possible but 

not later than 3 2 hours after the 

accident. The decision not to administer 

a test under this section must be based 

on a determination, using the best 

information available at the time of the 

determination, that the employee's 

performance could not have contributed 

to the accident. The employee shall 

submit to post-accident testing under 

this section. 

(d) Drug testing based on reasonable 

cause. Each employer must test each 

employee who performs a safetysensitive function and who is 

reasonably suspected of having used a 

prohibited drug. The decision to test 

must be based on a reasonable and 

articulable belief that the employee is 

using a prohibited drug on the basis of 

specific contemporaneous physical, 

. behavioral, or performance indicators of 

probable drug use. At lE)ast two of the 

employee's supervisors, one of whom is 

trained in detection of the symptoms of 

possible drug use, must substantiate and 

concur in the decision to test an 

employee who is reasonably suspected 

of drug use; except that in the case of 

an employer, other than a part 121 

certificate holder, who· employs 50 or 

fewer employees who perform safetysensitive functions, one supervisor who 

is trained in detection of symptoms of 

possible drug use must substantiate the 

decision to test an employee who is 

reasonably suspected of drug use. (e) Return to duty drug testing. Each 

employer shall ensure that before an 

individual is returned to duty to 

perform a safety-sensitive function after 

refusing to submit to a drug test · 

employer has received a verified 

negative drug test result for the 

individual. The test cannot occur until 

'after the SAP has determined that the 

employee has successfully complied 

with the prescribed education and/or 

treatment. 

. (f) Follow-up drug testing. (1) Each 

employer shall implement a reasonable 

program of unannounced testing of each 

individual who has· been hired to 

perform or who has been returned to the 

performance of a safety-sensitive 

function after refusing to submit to a 

drug test required by this subpart or 

receiving a verified positive drug test 

result on a test conducted under this 

subpart. 

. (2) The number and frequency of such 

testing shall be determined by the 

employer's Substance Abuse 

· Professional conducted in accordance 

with the provisions of 49 CFR part 40, 

but shall consist of at least six tests in 

the first 12 months following the 

employee's return to duty. 

(3) The employer must direct the 

employee to undergo testing for alcohol 

in accordance with subpart F of this 

part, in addition to drugs, if the 

Substance Abuse Professional 

determines that alcohol testing is 

necessary for the particular employee. 

Any such alcohol testing shall be 

conducted in accordance with the 

provisions of 49 CFR part 40. 

(4) Follow-up testing shall not exceed 

60 months after the date the individual 

begins to perform or returns to the 

performance of a safety-sensitive 

function. The Substance Abuse 

Professional may terminate the 

requirement for follow-up testing at any 

time after the first six tests have been 

conducted, if the Substance Abuse 

Professional determines that such 

testing is no longer necessary. 

§120.111 Administrative and other 

matters. 

(a) MRO record retention 

requirements. (1) Records concerning 

drug tests confirmed positive by the· 

laboratory shall be maintained by the 

MRO for 5 years. Such records include 

the MRO copies of the custody and 

control form, medical interviews, 

documentation of the basis for verifying 

as negative test results confirmed as 

positive by the laboratory, any other 

required by this subpart or receiving a documentation concerning the MRO's 

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 individual required to undergo 

return-to-duty testing to perform a 

safety-sensitive function unless the 

(2) Should the employer change 

MRO's for any reason, the employer 

shall ensure that the former MRO 

forwards all records maintained 

pursuant to this rule to the new MRO 

within ten working days of receiving 

notice from the employer of the new 

MRO's name and address.·. 

(3) Any employer obtaining MRO 

services by contract, including a 

contract through a C/TP A, shall ensure 

that the contract includes a 

recordkeeping provision that is 

consistent with this paragraph, 

including requirements for transferring 

records to a new MRO. 

(b) Access to records. The employer 

and the MRO shall permit the 

. Administrator or the Administrator's 

representative to examine records 

required to be kept under this subpart 

and 49 CFR part 40. The Administrator 

or the Administrator's representative 

may require that all records maintained 

by the service agent for the employer 

must be produced at the employer's 

place of business. 

(c) Release of drug testing . 

information. An employer shall release 

information regarding an employee's 

drug 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 notify the FAA within 2 

working days of any employee who 

holds a certificate issued under part 61, 

part 63, or part 65 of this chapter who 

has refused to submit to a drug test 

required under this subpart. Notification 

must be sent to: Federal Aviation 

Administration, Office of Aerospace 

Medicine, Drug Abatement Division 

(AAM-800), 800 Independence Avenue, 

SW., Washington, DC 20591, or by fax · 

to (202) 267-5200. 

(e) Permanent disqualification from 

service. (1) An employee who has 

verified positive drug test results on two 

drug tests required by this subpart of 

this chapter, and conducted.after 

September 19, 1994, is permanently 

precluded from performing for an · 

employer the safety-sensitive duties the 

employee performed prior to the second 

drug test. 

(2) An employee who has engaged in 

prohibited drug use during the 

performance of a safety-sensitive 

function after September 19, 1994 is 

permanently precluded from performing 

that safety-sensitive function for an 

employer . 

(f) DOT manageme:r:zt information 

system annual reports. Copies of any 

annual reports submitted to the FAA 

under this subpart must be maintained 

by the employer for a minimum of 5 

years. 
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 part 40 and 

shall perform the functions set forth in 

49 CFR part 40 and this subpart. If the 

employer does not have a qualified 

individual on staff to serve as MRO, the 

employer may contract for the provision 

of MRO services as part of its drug 

testing program. . (b) Medical Review Officer (MRO). 

The MRO must perform the functions 

set forth in subpart G of 49 CFR part 40, 

and subpart E of this part. The MRO 

shall not delay verification of the 

primary_ test result following a request 

for a split specimen test unless such 

delay is based on reasons other than the 

fact that the split specimen test result is 

pending. If the primary test result is 

verified as positive, actions required 

under this rule (e.g., notification to the 

Federal Air Surgeon, removal from 

safety-sensitive position) are not stayed 

during the 72-hour request period or 

pending receipt of the split specimen 

test result. 

(c) Substance Abuse Professional 

(SAP). The SAP must perform the 

functions set forth in 49 CFR part 40, 

subpart 0. 

(d) Additional Medical Reir.iew 

Officer, Substance Abuse Professional, 

and Employer Responsibilities 

Regarding 14 CFR part 67 Airman 

Medical Certificate Holders. (1) As part 

of verifying a confirmed positive test 

result or refusal to submit to a test, the 

MRO must ask and the individual must 

answer whether he or she holds an 

airman medical certificate issued under 

14 CFR part 67 or would be required to 

hold an airman medical certificate to 

perform a safety-sensitive function for. 

the employer. If the individual answers 

in the affirmative to either question, in 

addition to notifying the employer in 

accordance with 49 CFR part 40, the 

MRO must forward to the Federal Air 

Surgeon, at the address listed in 

paragraph (d)(5) of this section, the 

name of the individual, along with· 

identifying information and supporting 

documentation, within 2 working days 

after verifying a positive drug test result 

or refusal to submit to a test. 

(2) During the SAP interview required 

for a verified positive test result or a 

refusal to submit to a test, the SAP must 

ask and the individual must answer 

whether he or she holds or would be 

required to hold an airman medical 

certificate issued under 14 CFR part 67 

to perform a safety-sensitive function for 

the employer. If the individual answers 

in the affirmative, the individual must 

obtain an airman medical certificate 

issued by the Federal Air Surgeon dated 

after the verified positive drug test 

result date or refusal to test date. After 

the individual obtains this airman 

medical certificate, the SAP may 

recommend to the employer that the 

individual may be returned to a safetysensitive position. The receipt of an 

airman medical certificate does not alter 

any obligations otherwise required by 

49 CFR part 40 or this subpart. 

(3) An employer must forward to the 

Federal Air Surg!lon within 2 working 

days of receipt, copies of all reports. 

provided to the employer by a SAP 

regarding the following: 

(i) An individual who the MRO has 

reported to the Federal Air Surgeon 

under§ 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 not permit an 

employee who is required to hold an 

airman medical certificate under 14 CFR 

part 67 to perform a safety-sensitive 

duty to resume that duty until the 

employee has: 

(i) Been issued an airman medical 

certificate from the Federal Air Surgeon 

after the date of the verified positive 

drug test result or refusal to test; and 

(ii) Met the return to duty 

requirements in accordance with 49 

CFRpart 40. 

(5) Reports required under this 

section shall be forwarded to the 

Federal Air Surgeon, Federal Aviation 

Administration, Office of Aerospace 

Medicine, Attn: Drug Abatement 

Division (AAM-800), 800 Independence 

Avenue, SW., Washington, DC 20591. 

<, (6) MROs, SAPs, and employers who 

send reports to the Federal Air Surgeon 

must keep a copy of each report for 5 

years. 

§120.115 Employee Assistance Program 

(EAP). 

(a) The employer shall provide an 

EAP for employees. The employer may · 

establish the EAP as a part of its internal 

personnel services or the employer may 

contract with an entity that will provide 

EAP services to an employee. Each EAP 

must include education and training on 

drug use for employees and training for 

supervisors making determinations for 

testing of employees based on 

reasonable cause. · 

(b) EAP education program. (1) Each 

EAP education program must include at 

least the following elements: 

(i) Display and distribution of 

informational material; 

(ii) Display and distribution of a 

community service hot-line telephone 

number for employee assistance; and 

(iii) Display and distribution of the 

employer's policy regarding drug use in 

the workplace. 

(2) The employer's policy shall 

include information regarding the 

consequences under the rule of using 

drugs while performing safety-sensitive 

functions, receiving a verified positive 

drug test result, or refusing to submit to 

·a drug test required under the rule. 

(c) EAP training program. (1) Each 

employer shall implement a reasonable 

program of initial training for 

employees. The employee training 

program must include at least the 

following elements: 

(i) The effects and consequences of 

drug use on individual health, safety, 

and work environment; 

(ii) The manifestations and behavioral 

cues that may indicate drug use and 

abuse; and 

(iii) Documentation of training 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 of probable 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 of initial training. 

(4) The employer shall implement a 

reasonable recurrent training program 

for supervisory personnel making 

reasonable cause determinations during 

subsequent years. 

(5) The employer shall identify the 

employee and supervisor for EAP 

training in the 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 of this subpart .. Use the 

following chart to determine whether 

your company must obtain an Antidrug 

and Alcohol Misuse Prevention Program 

Operations Specification or whether you 

must register 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 of this chapter, 

if you 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§ 9L 147 of this chapter, or if 

you intend to begin air traffic control 

operations (not operated by the FAA or 

by or under contract to the U.S. 

Military). Use it to determine whether 

you need to have an Antidrug and 

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) If you 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 an Antidrug and 

Alcohol Misuse 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 of this 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 if you opt 

to have your own drug 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 Alcohol Misuse 

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, or 49 or 

fewer safety-sensitive employees. (Part 

119 certificate holders with authority to 

operate only under part 121 of this 

chapter are not required to provide this 

information.) 

(2) You must certify on your Antidrug 

and Alcohol Misuse Prevention Program 

. Operations Specification issued by your 

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 

Prevention Program Operations 

Specification to satisfy this requirement 

under this part. . 

( 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) Registering a drug and alcohol 

testing program with the FAA. (1) To 

register with the FAA, submit the 

following information: 

(i) Company name. (ii) Telephone number. 

(iii) Address where your drug and 

. alcohol testing program records are 

kept. · . (iv) Type of safety-sensitive functions 

you perform for an employer (such as 

flight instruction duties, aircraft 

dispatcher duties, maintenance or 

preventive maintenance duties, ground 

security coordinator duties, aviation 

screening duties, air traffic control 

duties). 

(v) Whether you have 50 or more 

safety-sensitive 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, if you 

are a contractor, you intend to provide 

safety-sensitive functions by contract to 

a part 119 certificate holder with 

authority to operate under part 121 and/ 

or part 135 of this chapter, an 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. 

(2) Send this information in the form 

and manner prescribed by the 

Administrator, in duplicate to: The 

Federal Aviation Administration, Office 

of Aerospace 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 in paragraph (e)(2) of this 

section. 

(4) This registration will satisfy the 

registration requirements for both your 

drug testing program under this subpart 

and your alcohol testing program under 

subpart F of this part. 

§120.119 Annual reports. 

(a) Annual reports oftesting results 

must be submitted to the FAA by March 

15 of the succeeding calendar year for 

the prior calendar year (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 under this part, other 

than a part 121 certificate holder, that 

has 50 or more employees performing a 

safety-sel).sitive function on January 1 of 

any calendar year shall submit an 

annual report to the FAA for that 

calendar year. 

(3) The Administrator reserves the 

right to require that aviation employers 

not otherwise required to submit annual 

reports prepare and submit such reports 

to the FAA. Employers that will be 

required to submit annual reports under 

this provision will be 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 of the 

MIS form provided by 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 submit MIS forms and for 

the electronic version of the form, see: 

http://www.faa.gov/about/office_org/ 

headquarters_ offices/avsloffices/aam/ 

drug alcohol/. · (cfA service agent may prepare the 

MIS report on behalf of an employer. 

However, a company official (e.g., 

Designated Employer Representative as 

defined in 49 CFR part 40) must certify 

the accuracy and completeness of the 

MIS report, no matter who prepares it. . 

§ 120.121 Preemption. 

(a) The issuance of i4 CFR parts 65, 

91, 121, and 135 by the 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, including but not limited to, drug 

testing of aviation 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 of the testing process 

(including specimen collection, 

laboratory processing, and MRO actions) 

shall be conducted outside the territory 

of the United States. 

(1) Each employee who is assigned to 

perform safety-sensitive functions solely 

outside the territory of the United States 

shall be 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 shall be returned to 

the random testing pool when the 

employee resumes the performance of 

safety-sensitive functions wholly or 

partially within the territory of the 

United States. 

. (b) The provisions of this subpart 

shall not apply to any individual who 

performs a function listed in § 120.105 

by contract for an employer outside the 

territory of the United States. 

§ 120.125 Waivers from 49 CFR 40.21. 

An employer subject to this part may 

petition the Drug Abatement Division, 

Office of Aerospace 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 of the · 

verification process. 

(a) Each petition for a waiver must be 

in writing and include substantial facts 

and·justification to support the waiver. 

Each petition must satisfy the 

substantive requirements for obtaining a 

waiver, as provided in 49 CFR 40.21. 

(b) Each petition for a waiver must be 

submitted to the Federal Aviation 

Administration, Office of Aerospace 

Medicine, Drug Abatement Division 

(AAM-800), 800 Independence Avenue, 

SW., Washington, DC 20591. 

(c) The Administrator may grant a 

waiver subject to 49 CFR 40.21(d). 

Subpart F-Aicohol Testing Program 

Requirements 

§ 120.201 Scope. 

This subpart contains the standards 

and components that must be 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 of this 

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) Alcohol testing procedures. Each 

employer shall ensure that all alcohol 

testing conducted pursuant to this · 

subpart complies with the procedures 

set forth in 49 CFR part 40. The 

provisions of 49 CFR part 40 that 

address alcohol testing are made 

applicable to employers by this subpart. 

(c) Employer responsibility. As an 

employer, you are responsible for all 

actions of your officials, representatives, 

and service agents in carrying out the 

requirements of the DOT agency 

regulations.· 

§ 120.205 Preemption of State and local 

laws. 

(a) Except as provided in paragraph . 

(a)(2) of this section, these regulations 

preempt any State or local law, rule, 

regulation, or order to the extent that: 

(1) Compliance with both the State or 

local requirement and this subpart is not 

possible; or 

(2) Compliance with the State or local 

requirement is an obstacle to the 

accomplishment and execution of any 

requirement in this subpart. 

(b) The alcohol testing requirements 

of this title shall not be construed to 

preempt provisions of State criminal 

law that impose sanctions for reckless 

conduct leading to actual loss of life, 

injury, or damage to property, whether 

the provisions apply specifically to 

transportation employees or employers 

or to the general public. 

§ 120.207 Other requirements imposed by 

employers. 

Except as expressly provided in these 

alcohol testing requirements, nothing in 

this subpart shall be construed to affect 

the authority of employers, or the rights 

of employees, with respect to the use or 

possession of alcohol, including any 

authority and rights with respect 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 by this subpart. 

No employer shall falsely represent that 

a test is administered under this 

subpart. 

§ 120.211 Applicable Federal regulations. 

The following applicable regulations 

appear in 49 CFR and 14 CFR: 

(a) 49 CFR Part 40-Procedures for 

Transportation Workplace 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-Passenger carrying 

flights for compensation or hire. 

§ 120.213 Falsification. 

No individual may make, or cause to 

be made, any of the 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 or report that 

is made, kept, or used to show 

compliance with this subpart. 

(c) Any reproduction or alteration, for 

fraudulent purposes, of any report or 

record required to be kept by this 

subpart. 

§120.215 Covered employees. 

(a) 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 subpart must be 

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 

of the degree of supervision. The safetysensitive functions are: · 

(1) Flight crewmember duties. 

~ (2) Flight attendant duties. 

(3) Flight instruction duties. 

(4) Aircraft dispatcher duties. 

(5) Aircraft maintenance or preventive 

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 

testing regulations of more than one 

DOT agency. Prior to conducting any 

alcohol test on a covered employee 

subject to the alcohol testing regulations 

of more 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; conduct pre-employment 

alcohol testing under this subpart. If you 

choose to conduct pre-employment 

alcohol testing, you must comply with 

the following requirements: 

(1) You must conduct a preemployment alcohol test before the first 

performance of safety-sensitive 

functions by every covered employee 

(whether a new employee or someone 

who has transferred to·a. position 

involving the performance of safetysensitive 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 conduct the preemployment tests after making a 

contingent offer of employment 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 of 49 CFR 

part 40. 

(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 of less than 0.04. If a preemployment test result under this 

paragraph indicates an alcohol 

concentration of 0.02 or greater but less 

than 0.04, the provisions of§ 120.221(£) 

apply. 

(b) Post-accident alcohol testing. (1) 

As soon as practicable following an 

accident, each employer shall test each 

surviving covered employee for alcohol 

if that employee's performance of a · 

safety-sensitive function either 

contributed to the accident or cannot be 

completely discounted as a contributing 

factor to the accident. The decision not 

to administer a test under this section 

shall be based on the employer's 

determination, using the best available 

information at the time of the 

determination, that the covered 

employee's performance could not have 

contributed to the accident. 

(2i If a test required by this section is 

not administered within 2 hours 

following the accident, the employer 

shall prepare and maintain on file a 

record stating the reasons the test was 

not promptly administered. If a 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 shall be submitted 

to the FAA upon request of the 

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 such testing 

or may be deemed by the employer to 

· have refused to submit to testing. 

Nothing in this 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 of an accident for the 

period necessary to obtain assistance in 

responding to the accident or to obtain 

necessary emergency medical care. (c) Random alcohol testing. (1) Except 

as provided in paragraphs (c)(2) through 

(c)(4) of this section, the minimum 

annual percentage rate for random 

alcohol testing will be 25 percent of the· 

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 

information used for this determination 

is drawn from MIS reports required by 

this subpart. In order to ensure 

reliability of the data, the Administrator 

considers the quality and completeness 

of the reported data, may obtain 

additional information or reports from 

employers, and may make appropriate 

modifications in calculating the 

industry violation rate. Each year, the 

Administrator will publish in the 

Federal Register the minimum annual 

percentage rate for random alcohol . 

testing of covered employees. The new 

minimum annual percentage rate for 

random alcohol testing will be 

applicable starting January 1 of the 

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 of all covered employees if the 

Administrator determines that the data 

received under the reporting 

requirements of this subpart for two 

consecutive calendar years indicate that 

the 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 lower this rate to 25 percent of all 

covered employees if the Administrator 

determines that the data received under 

the reporting requirements of this 

subpart for two consecutive calendar 

years indicate that the violation rate is 

less than 1.0 percent but equal to or 

·greater than 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 of this subpart for ·that 

calendar year indicate that the violation 

rate is equal to or greater than 0.5 

percent but 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 of this subpart for that 

calendar year indicate that the violation 

rate is equal to or greater than 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 of employees for 

random alcohol testing shall be made by 

a scientifically valid method, such as a 

random-number table or a computerbased random number generator that i:s 

matched with employees' Social 

Security nurribers, payroll identification 

numbers, or other comparable 

identifying_ numbers. Under the 

selection process used, .each covered 

employee shall have an equal chance of 

being tested each time selections are 

made. 

(6) As an employer, you must select 

and test a percentage of employees at 

least equal to the minimum annual 

percentage rate each year. 

(i) As an employer, to determine 

whether you have met the minimum 

· annual percentage rate, you must divide 

the number of random alcohol screening 

test results for safety-sensitive 

employees by the average number of . 

safety-sensitive employees eligible for 

random testing. · (A) To calculate whether you have 

met the annual minimum percentage 

rate, count all random screening test 

..results below 0.02 breath alcohol 

concentration, random screening test 

results of 0.02 or greater breath alcohol 

concentration, and random 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 of safety-sensitive 

employees eligible for testing during 

each random testing period for the year 

and divide that total by the number of 

random testing periods. Only safetysensitive employees are to be in an 

employer's random testing pool, and all 

safety-sensitive employees must be in 

the random pool. .If you are .an employer 

conducting random testing more often 

than once per month (e.g., you select 

daily, weekly, bi-weekly) you do not 

need to compute this total number of 

safety-sensitive employees more than on 

a once per month basis. 

(ii) As an employer, you may use a 

service agent to perform random 

selections for you, and your safetysensitive employees may be part of a 

larger random testing pool of safetysensitive employees. However, you 

must ensure that the service agent you 

use is testing at the appropriate 

percentage established for your industry 

and that only safety-sensitive employees 

are in the random testing pool. For 

example: 

(A) If the service agent has your 

employees in a random testing pool for 

your company alone, you must ensure 

that the testing is conducted at least at 

the minimum annual percentage rate 

under this part. · (B) If the service agent has your 

employees in a random testing pool 

combined with other FAA-regulated 

companies, you must ensure that the 

testing is conducted at least at the 

minimum annual percentage rate under 

this fart. 

(C If the service agent has your 

employees in a random testing pool 

combined with other DOT-regulated 

companies, you must ensure that the 

testing is conducted at least at the 

highest rate required for any DOTregulated company in the pool. 

(7) Each employer shall ensure that 

random alcohol tests conducted under 

this subpart are unannounced and that 

the dates for administering random tests 

are spread reasonably throughout the 

calendar year. 

(8) Each employer shall requfre that 

each covered employee who is notified 

of selection for random testing proceed.s 

to the testing site immediately; 

provided, however, that if the employee 

is performing a safety-sensitive function 

at the time of the notification, the 

employer shall instead ensure that the 

employee ceases to perform the safetysensitive function and proceeds to the 

testing site as soon as possible. 

(9) A Covered employee shall only be 

randomly tested while the employee is 

performing safety-sensitive functions; 

just before the employee is to perform · 

safety-sensitive functions; or just 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 of more than 

one DOT agency, the employee shall be 

subject to random alcohol testing at the 

percentage rate established for the 

calendar year by the DOT agency 

regulating more than 50 percent of the 

employee's functions. · (11) If an employer is required to 

conduct random alcohol testing under 
22664 Federa.I Register I Vol. 74, No. 92 I Thursday, May 14, 2009 I Rules and Regulations 

the alcohol testing rules of more than 

one DOT agency, the employer may-

(i) Establish separate pools for random 

selection, with each pool containing the 

covered employees who are subject to 

testing at the same required rate; or (ii) Randomly select such employees 

for testing at the highest" percentage rate 

established for the calendar year by any 

DOT agency to which the employer is 

subject. 

(d) Reasonable suspicion alcohol 

testing. (1) An employer shall require a 

covered employee to submit to an 

alcohol test when the employer has 

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 shall be based on specific, 

contemporaneous, articulable 

observations concerning the appearance, 

behavior, speech or body odors of the 

employee. The required observations 

shall be made by a supervisor who is 

trained in detecting the symptoms of 

alcohol misuse. The supervisor who 

makes the determination that reasonable 

suspicion exists shall not conduct the · 

breath alcohol test on that employee. 

(3) Alcohol testing is authorized by 

this section only if the observations 

required by paragraph (d)(2) ofthis 

section are made during, just preceding, 

or just after the period of the work day 

that the covered employee is required to 

be in compliance with this rule. An 

employee may be directed by the 

employer to undergo reasonable 

suspicion testing for alcohol only while 

the employee is performing safetysensitive functions; just before the 

employee is to perform safety-sensitive 

functions; or just after the employee has 

ceased performing such functions. 

(4)(i) If a test required by this section 

is not administered within 2 hours 

following the determination made under 

paragraph (d)(2) of this section, the 

employer shall prepare and maintain on 

file a record stating the reasons the test 

was not promptly administered. If a test 

required by this section is not 

administered within 8 hours following 

the determination made under 

paragraph (d)(2) of this section, the 

employer shall cease attempts to 

administer an alcohol test and shall 

state in the record th!l reasons for not 

administering the test. 

(ii) Notwithstanding the absence of a 

reasonable suspicion alcohol test under 

this section, no covered employee shall 

report for duty or remain on duty 

requiring the performance of safetysensitive functions while the employee 

is under the influence of, or impaired 

by, alcohol, as shown by the behavioral, 

speech, or performance indicators of 

alcohol misuse, nor shall an employer 

permit the 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 of the employee's next 

regularly scheduled duty period, but not 

less than 8 hours following the 

determination made under paragraph 

(d)(2) of this 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 on the 

employee's behavior and appearance in 

the absence of an alcohol test. This does 

not prohibit an employer with authority 

independent of this subpart from taking 

any actiori otherwise consistent with 

law. 

(e) Return-to-duty alcohol testing. 

Each employer shall ensure that before 

a covered employee returns to duty 

requiring the performance of a safetysensitive function after engaging ill 

conduct prohibited in§§ 120.19 or 

120.37 the employee shall undergo a 

return-to-duty alcohol test with 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 conduct prohibited by 

§§ 120.19 or 120.37, is subject to 

unannounced follow:up alcohol testing 

.as directed by a SAP. . (2) The number and frequency of such 

testing shall be determined by the 

employer's SAP, but must consist of at 

least six tests in the first 12 months 

following the employee's return to duty. 

(3) The employer must direct the 

employee to undergo testing for drugs in 

accordance with subpart E of this part, 

in addition to alcohol, if the SAP 

determines that drug testing is necessary 

for the particular employee. Any such 

drug testing shall be conducted in 

accordance with the provisions of 49 

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; if the 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, or just after the 

employee has ceased performing such 

functions. 

(g) Retesting of covered employees 

with an alcohol concentration of 0.02 or 

greater but less than 0.04. Each 

employer shall retest a covered 

employee to ensure compliance with the 

provisions of§ 120.221(f) If the 

employer chooses to permit the 

employee to perform a safety-sensitive 

function within 8 hours following the· 

administration of an 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 of any annual reports 

submitted to the FAA under this subpart 

for a minimum of 5 years. 

(B) Records of notifications to the 

Federal Air Surgeon of refusals to 

submit to testing and violations of the 

alcohol misuse prohibitions in this 

chapter by covered employees who hold 

medical certificates issued under part 67 

of this chapter. . (C) Documents presented by a covered 

employee to dispute the result of an 

alcohol test administered under this 

subpart. 

(D) Records related to other violations 

of§§ 120.19 or 120.37. 

(ii) Two years. Records related to the 

testing process and training required 

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 on postaccident tests·. 

(D) Documents verifying existence of 

a medical explanation of the inability of 

a covered employee to provide adequate 

breath for testing. 

(E) Materials on alcohol misuse 

awareness, including a copy of the 

employer's policy on alcohol misuse. · 

(F) Documentation of compliance 

with the requirements of§ 120.223(a). 
Federal Register/Val. 74, No. 92 /Thursday, May 14, 2009/Rules and Regulations 22665 

(G) Documentation of training 

provided to supervisors for the purpose 

of qualifying the supervisors to make a 

determination concerning the need for 

alcohol testing based on reasonable 

suspicion. 

(H) Certification that any training 

conducted under this subpart complies 

with the requirements for such training. 

(b) Annual reports. (1) Annual reports 

of alcohol testing program results must 

be submitted to the FAA by March 15 

of the succeeding calendar year for the 

prior calendar year Uanuary 1 through 

December 31) in accordance with the 

provisions of paragraphs (b)(1)(i) 

through (Iii) of this 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 on January 1 of 

any calendar year shall submit an 

annual report to the FAA for that 

calendar year. 

(iii) The Administrator reserves the 

right to require that aviation employers 

not otherwise required to submit annual 

reports prepare and submit such reports 

to the FAA. Employers that will be 

required to submit annual reports under 

this provision will be notified in writing 

by the FAA. . (2) 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 

appendix H to 49 CFR part 40). You may 

also use the electronic version of the 

MIS form provided by 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 submit MIS forms and for 

the electronic version of the form, see: 

http:/ /www.faa.gov/about/office _ org/ 

headquarters_ offices/avsloffices/aam/ 

drug alcohol/. · (3fA service agent may prepare the 

MIS report on behaJf of an employer. 

However, a company official (e.g., 

Designated Employer Representative as 

defined in 49 CFR part 40) must certify 

the accuracy and completeness of the 

MIS report, no matter who prepares it. 

(c) Access to records and facilities. 

(1) Except as required by law or 

expressly authorized or required in this 

subpart, no employer shall release 

covered employee information that is 

contained in records required to be 

maintained under this subpart. 

(2) A covered employee is entitled, 

upon written request, to obtain copies of 

any records pertaining to the employee's 

use of alcohol, including any records 

pertaining to his or her alcohol tests in 

accordance with 49 CFR part 40. The 

employer shall promptly provide the 

records requested by the employee .. 

Access to an employee's records shall 

not be contingent upon payment for 

records other than those specifically 

requested. 

(3) Each employer shall permit access 

to all facilities utilized in complying 

with the requirements of this subpart to 

the Secretary of Transportation or any 

DOT agency with regulatory authority 

over the employer or any of its covered· 

employees. 

§120.221 Consequences for employees 

engaging in alcohol-related conduct. 

(a) Removal from safety-sensitive 

function. (1) Except as provided in 49 

CFR part 40, no covered employee shall 

perform safety-sensitive functions·if the 

employee has engaged in conduct 

prohibited by§§ 120.19 or 120.37, or an 

alcohol misuse rule of another DOT 

agency. 

(2) No employer shall permit any 

covered employee to perform safetysensitive functions if the employer has 

determined that the employee has 

violated this section. 

(b) Permanent disqualification from 

service. An employee who violates 

§§ 120.19 or 120.37, or who 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 Federal Air Surgeon. 

(1) An employer who determines that a 

covered employee who holds an airman 

.medical certificate issued under part 67 

of this chapter has engaged in alcohol 

use that violated the alcohol misuse 

provisions of§§ 120.19 or 120.37 shall 

notify the Federal Air Surgeon within 2 

working days. 

(2) Each such employer shall forward 

to the Federal Air Surgeon a copy of the 

report of any evaluation performed 

under the provisions of§ 120.223(c) 

within 2 working days of the employer's 

receipt of the report. 

(3) All documents must be sent to the 

Federal Air Surgeon, Federal Aviation 

Administration, Office of Aerospace 

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 may perform that duty 

following a violation of this subpart 

until the covered employee obtains an 

airman medical certificate issued by the 

Federal Air Surgeon dated after the 

.alcohol test result or refusal to test date. 

After the.covered employee obtains this . 

airman medical certifiCate, the SAP may 

recommend to the employer that the 

covered employee may be returned to a 

safety-sensitive position. The receipt of 

an airman medical certificate does not 

alter any obligations otherwise required 

by 49 CFR part 40 or this subpart. 

(5) Once the Federal Air Surgeon has 

. recommended under paragraph (c)(4) of 

this section that the employee be 

permitted to perform safety-sensitive 

duties, the employer cannot permit the 

employee to perform those safetysensitive duties until the employer has 

ensured that the employee meets the 

return to duty requirements in · accordance with 49 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 of this chapter who 

has refused to submit to an alcohol test 

required under this subpart. Notification 

must be sent to: Federal Aviation 

Administration, Office of Aerospace 

Medicine, Drug Abatement Division 

(AAM-800), BOO Independence Avenue, 

SW., Washington, DC 20591, or by fax 

to (202) 267-5200. · 

(e) Required evaluation and alcohol 

testing. No covered employee who has 

engaged in conduct prohibited by 

§§ 120.19 or 120.37 shall perform safetysensitive functions unless the employee 

has met the requirements of 49 CFR part 

40. No employer shall permit a covereq 

employee who has engaged in such 

conduct to perform safety-sensitive 

functions unless the employee has met 

the requirements of 49 CFR part 40. 

(f) Other alcohol-related conduct. (1) 

No covered employee tested under this 

subpart who is found to have an alcohol 

concentration of 0.02 or greater but 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 of the employee's next 

regularly scheduled duty period, but not 

less than B hours following 

administration of the test. 

(2) Except as provided in paragraph 

(£)(1) of this section, no employer shall 

take any action under this rule against 

an employee based solely on test results 

showing an alcohol concentration less 

than 0.04. This does not prohibit 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) Employer obligation to promulgate 

a policy 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 with respect to 

. meeting those requirements. . 

(i) The employer shall ensure that a · 

copy of these materials is distributed to 

each covered employee prior to the start 

of alcohol 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 of the 

availability of this information. 

(2) Required content. The materials to 

be made available to employees shall 

include detailed discussion of at least 

the following: 

(i) The identity of the individual 

designated by the employer to answer 

employee qvestions about the materials. 

(ii) The categories of employees who 

are subject to the provisions of these 

alcohol testing requirements. 

(i1i) Sufficient information about the 

safety-sensitive functions performed by 

those employees to make clear what 

period of the 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 chart for 

implementing an alcohol testing 

program if you are applying for a part 

119 certificate with authority to operate 

under parts 121 and/or 135 of this 

chapter, if you intend to begin 

operations as defined in § 91.14 7 of this 

compliance with these alcohol testing 

requirements. · (iv) Specific information concerning 

employee conduct that is prohibited by 

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 of alcohol, 

protect the employee and the integrity 

of the breath testing process, safeguard 

the validity of the test results, and 

ensure that those results are attributed 

to the correct employee. 

(vii) The requirement that a covered 

employee submit to alcohol tests 

administered in accordance with this 

subpart. 

(viii) An explanation of what 

constitutes a refusal to submit to an 

alcohol test and the attendant 

consequences. 

(ix) The consequences for covered 

employees found to have violated the 

prohibitions in this chapter, including 

the requirement that the employee be 

removed immediately from performing 

safety-sensitive functions, and the 

process in 49 CFR part 40, subpart 0. 

(x) The consequences for covered 

employees found to have an alcohol 

concentration of 0.02 or greater but less 

than 0.04. 

(xi) Information concerning the effects 

of alcohol misuse on an.individual's 

health, work, and personal life; signs 

and symptoms of an alcohol problem; 

available methods of evaluating and 

resolving problems associated with the 

misuse of alcohol; and intervening 

when an alcohol problem is suspected, 

You musi ... 

including confrontation, referral to any 

available employee assistance program, 

and/or referral to management. 

(xii) Optional provisions. The 

materials supplied to covered 

employees may also include 

information on additional employer 

policies with respect to the use or 

possession of alcohol, including any 

consequences for an employee found to 

have a specified alcohol level, that are 

based on the employer's authority 

independent of this subpart. Any such 

additional policies or consequences 

must be clearly and obviously described 

as being based on independent 

authority. 

(b) Training for 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) of this 

subpart receive at least 60 minutes of 

training on the physical, behavioral, 

speech, and performance indicators of 

· probable alcohol misuse. 

(c) Substance abuse professional 

(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 of this subpart. Use the 

following chart to determine whether 

your company must obtain an Antidrug 

and Alcohol Misuse Prevention Program 

Operations Specification or whether you 

must register 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 if you intend to begin 

operations as defined air traffic control 

operations (not operated by the FAA or 

by or under contract to the U.S. 

Military). Use it to determine whether 

you need to have an AntidrUg and 

AlcohoL Misuse Prevention Program 

Operations Specification, or whether 

you need to register with the FAA. Your 

employees who perform safety-sensitive 

duties must be 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) If you 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 Principal Operations 

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 of this chapter, use the 

following chart to determine what you 

must do if you 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 of this chapter, or 

an air traffic control facility not 

operated by the FAA or by 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 program records are 

kept. 

(ii) Telephone number. 

.,, (iii) Address where your drug and 

alcohol testing program records are 

kept. 

(iv) Type of safety-sensitive functions 

you perform for an employer (such as 

flight instruction duties, aircraft 

dispatcher duties, maintenance or 

preventive maintenance duties, ground 

security coordinator duties, aviation 

screening duties, air traffic control 

duties). 

(2) Send this information in the form. 

and manner prescribed by the 

Administrator, in duplicate to: The 

Federal Aviation Administration, Office 

of Aerospace 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 in paragraph (e)(2) of this 

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 of this chapter are not 

required to provide this information.) 

(2) You must certify on your Antidrug 

arid Alcohol Misuse Prevention Program 

Operations Specification, issued by your 

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 

Prevention Program Operations 

specification to satisfy this requirement 

under this part. 

(v) Whether you have 50 or more 

covered employees, or 49 or fewer 

covered employees. 

(vi) A signed statement indicating 

that: Your company will comply with 

this part and 49 CFR part 40; and, if you 

are a contractor, you intend to provide 

safety-sensitive functions by contract to 

a· part 119 certificate holder with 

authority to operate under part 121 and/ 

or 135 of this 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 shall be 

tested for alcohol misuse while located 

outside the territory of the 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 when the 

employee resumes the performance of 

safety-sensitive functions wholly or 

partially within the territory of the 

United States. 

(b) The provisions of this subpart · 

shall not apply to any person who 

performs a safety-sensitive function by 

contract for an employer outside the 

territory of the United States. 

PART 121-0PERATING 

REQUIREMENTS: DOMESTIC, Fl.AG, 

AND SUPPLEMENTAL OPERATIONS 

• 14. The authority citation for 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 is removed and 

reserved. · 

§ 121.455 [Removed and Reserved] 

• 16. Section 121.455 is removed 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. Appendix I is removed and 

reserved. 

Appendix J to Part 121 [Removed and 

Reserved] 

• 21. Appendix] is removed and. 

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 revised to 

read as follows: 

§ 135.1 Applicability 

. (a) * * * 

(5) Nonstop Commercial Air Tour 

flights conducted for compensation or 

hire in accordance with§ 119.1(e)(2) of 

this chapter that begin and end at the 

same airport and are conducted within 

a 25-statute-mile radius of that 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 of this chapter; and with the 

provisions of part 136, subpart A, and 

§ 91.147 of this chapter by 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, 

Acting Administrator. 

[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 

Instrument Approach Procedures 

(SlAPs) and associated Takeoff 

Minimums and Obstacle Departure 

Procedures for operations at certain 

airports. These regulatory actions are 

needed because of the adoptiqn of new 

or revised criteria, or because of changes 

occurring in the 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 of the navigable airspace and to 

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 Takeoff Minimums, 

and ODP is specified in the amendatory 

provisions. 

The inc"orporation by reference of 

certain publications listed in the 

regulations is approved by the Director 

of the Federal Register as of May 14, 

2009. 

ADDRESSES: Availability of matter 

incorporated by reference in the · 

amendment is as follows: 

For Examination1. FAA Rules Docket, FAA 

Headquarters Building, 800 

Independence Avenue, SW., 

Washington, DC 20591; 

2. The FAA Regional Office of the 

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 and Records 

Administration (NARA). For 

information on the availability of this 

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 of charge. Visit nfdc.faci.gov 

to register. Additionally, individual 

SlAP and Takeoff Minimums and ODP 

copies may be obtained from: 

1. FAA Public Inquiry Center (AP A200), FAA Headquarters Building, 800 

Independence Avenue, SW., 

Washington, DC 20591; or 2. The FAA Regional Office of the 

region in which the affected airport is 

located. 

FOR FURTHER INFORMATION CONTACT: 

· Harry J. Hodges, Flight Procedure 

Standards Branch (AFS-420) Flight 

Technologies and Programs Division, 

Flight Standards Service, Federal 

A,viation Administration, Mike 

Monroney Aeronautical Center, 6500 

South MacArthur Blvd., Oklahoma City, 

OK 73169 (Mail Address: 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 

Dear Mr. DeJoseph: 

Department of Transportation (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 of interpretation 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. If an [sic] FAR 135 aircraft had maintenance done by a mechanic that does not meet the Drug and Alcohol 

Requirements of FAR 135 and 121, what does the FAR 135 Certificate holder have to do before he can use that 

aircraft on a FAR 13 5 charter? 

Our answer: An aircraft that is listed on the operation specifications of a certificate holder conducting flights under 

Title 14, Code of Federal 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 CFR part 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 of the emergency maintenance within 10 days while retaining copies for at least two years. In addition, the certificate holder must 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 of part 121 is prohibited on aircraft operated imder part 135. 

If non-emergency maintenance was performed on the aircraft by a person not meeting the drug and alcohol testing 

requirements, it would be a violation of the regulations, which could result in penalties and require corrective actions, 

including the possible removal of the aircraft from the certificate holder's operations specifications. (See: 14 CFR § 

119.51) The primary maintenance inspector or principal operations inspector or both, as applicable, would determine 

what remedial actions would be necessary in order for the airplane to return to 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". Does that mean a pilot who flies an aircraft for an owner under FAR 91 has to meet the 

Drug and Alcohol Requirements of FAR 135 or 121 if that same aircraft is used FAR 135 charter? If not, why? 

Our answer: If that pilot to whom you refer also operates or is available to operate any flights under part 135 on behalf 

of the certificate holder then he or she must meet the applicable drug and alcohol testing requirements. (See: 14 CFR 

§§ 135.249-135.255). However, if that 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 13 5 aircraft" is a misnomer as you use it above and may 

reflect a misunderstanding. We appreciate the opportunity to clarify. If an aircraft is listed on the operation specifi- · 

cations of a 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 of certain portions of part 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. If a specific 

flight is not conducted for compensation or hire, (e.g. a ferry flight, positioning flight, or a flight conducted by the 

owner of the aircraft for his or her 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 of section 135.1(c) to operate 

under part 91 operating rules, he or she would be required to comply with the drug and alcohol testing requirements of 

sections 135.249-135.255 and also section 135.353. 

3. If an [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 of FAR 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 not relevant. 

We trust that this answers your questions. Thank you for your inquiry. 

Sincerely, 

Rebecca MacPherson 

Assistant Chief Counsel, 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's policies 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 of sanctions, ranges of 

sanctions within those types, and specific sanction amounts to impose in legal enforcement actions 

for typical violations of the 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 Penalty Action: Sanctions for Punitive and 

Deterrent Purposes. 

(1) General. If a certificate holder improperly exercises the privileges of a certificate, a 

natural consequence of that act is to lose the privileges for a period of time 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 of individual certificate holders for violations. However, the FAA usually 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 of any type of certificate holder. 

In no case will the FAA take civil penalty action alone when remedial legal action is necessary 

or appropriate. 

(2) Use of both punitive certificate action and civil penalty action for the same 

violations. The FAA generally does not take civil penalty action and punitive certificate action 

(that is, certificate suspension for a fixed period of time) against a certificate holder for the same 

conduct. If unusual circums~ces warrant deviation from this practice, legal counsel consult 

with the Assistant Chief Counsel for Enforcement (AGC-300) before initiating the actions. 

(3) Change in type of proposed sanction. The initial enforcement action reflects the 

agency's best assessment of the appropriate sanction for the violations alleged. After initiating 

the action, legal counsel ordinarily does not change the type of sanction unless additional facts or 

circumstances are presented to the FAA that warrant a change. If the action was coordinated 

wider chapter 6, paragraph 3, with AGC-300 before initiation, then legal counsel coordinates any 

change in the type of sanction 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 

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suspend the privileges of the certificate or rating pending demonstration of qualification or 

compliance with statutory or regulatory. requirements. FAA generally uses remedial suspension 

when an individual does not voluntarily surrender his or her 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 

of the privileges of the 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 of the technical proficiency or a lack of the 

degree of care, judgment, or responsibility, required of the holder of such 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 of the certificate. Legal counsel 

does not allege a lack of qualifications to avoid dismissal of charges under 49 C.F .R. § 821.33, 

the NTSB 's stale complaint rule. 

(3) Certificate revocation - individuals. The FAA generally revokes an individual's 

certificate or rating whenever he or she demonstrates a lack of willingness or ability to comply 

consistently with statutory or regulatory requirements. A lack of willingness or ability to comply 

may be demonstrated by such things as repeated or deliberate violations or by violations that 

involve grossly careless or reckless conduct. Even a single violation may be sufficient to warrant 

a conclusion an individual iacks qualifications. The FAA ordinarily revokes all certificates of a 

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 or regulations or falsifies 

records. Revocation also is generally appropriate when the certificate holder has committed the 

same or similar violations in the recent past demonstrating a lack of qualification, 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 ofanyainnan who has been convicted ofviolating certain fe~eralor state 

statutes relating to a controlled substance when an airplane was used in the commission of the 

offense and the airman served as an airman, or was aboard the aircraft, in connection with 

commission of the offense or the facilitation of the commission of the 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 revocation if 

·a law enforcement officer requests the waiver and the Administrator decides the waiver will 

facilitate law enforcement purposes. See 49 U.S.C. § 44710(f). Under 49 U.S.C. § 44106, the 

FAA also must revoke the registration certificate of any airplane used in the commission of such 

an offense when the use was permitted by the owner of the aircraft with knowledge that it would 

be used for such purpose. Under 49 U.S.C. § 44726, the FAA must revoke the certificates of any 

certificate holder or an individual who has a controlling or ownership interest in the holder who 

was convicted of a violation of federal law relating to the installation, production, repair, or sale 

ofa counterfeit or fraudulently-represented aviation part or material ot knowingly, and with the 

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intent to defraud, carried out or facilitated an activity punishable under such a law. The 

Administrator may waive that sanction to facilitate law enforcement purposes 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 ifthe Administrator is notified by the Under Secretary of Border and 

Transportation Security (BTS) of the Department ofHomeland Security (DHS) that the 

certificate holder poses, or is suspected of posing, a risk of air piracy or terrorism or a threat to 

airline or passenger safety. Under 49 U.S.C. § 44924, the Administrator is required, at the 

request of the 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 of sanctions and general ranges of sanction amounts for violations of 49 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 

enforcement personnel use the table and paragraph 4 of this 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 of agency action that fall outside the scope of 

paragraph 3 and the table. 

a. Decisions to Take Administrative Action (Warning Notices or Letters of 

Correction). An administrative action does not constitute either a formal adjudication of the 

incident or a finding of violation. For that reason, FAA investigative personnel do not-propose a 

sanction using the table. 

b. The FAA's Exercise ofProsecutorial Discretion. The decision whether to prosecute a 

particular case is based on a review of the 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. The FAA'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 Materials Violations. Actions involving violations of the 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 ofthe U.S. Armed Forces. The FAA is required to forward 

reports of these violations to the Secretary of the department concerned under 49 U.S.C. 

§ 46101 (b), whenever the violator is acting in the performance of official duties. The FAA, · 

however, takes remedial action in addition to referring a report when the violator, whether or not 

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acting in the perfonnruice of official 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 not perfonning official duties. 

4. Mitigating or Aggravating Factors and Elements. The factors in chapter 7, subparagraphs 

4.a. through m. have been developed over years of policy making and case adjudication. They 

have proven useful and appropriate for detennining the seriousness of a violation 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 of the Violation. Three elements define the nature of a 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 ofthat certificate, the natural consequence of that act should be loss of privileges 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 different type of sanction. 

(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 by that certificate holder and the impact is 

not outweighed by safety considerations. Even when a substantial adverse impact would occur, 

when there is a need 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 of any certificate holder, the FAA takes remedial action, for example, 

revocation or indefinite suspension, as necessary. 

(3) Careless or reckless conduct. Violations that involve careless or reckless conduct in 

violation of 14 C.F .R. § 91.13 may warrant more severe sanctions. Carelessness connotes 

conduct that falls below the standard of care or prudence expected of a reasonable person, or 

holder of the relevant certificate, acting under the same or similar circumstances. Recklessness 

connotes conduct that demonstrates a gross, or even callous or flagrant, disregard for safety. 

Aircraft operations that do not otherwise result in a violation of a specific regulation should be 

evaluated in light of these 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 of a 

specific regulation other than 14 C.F.R. § 91.13, however, that violation constitutes a careless or 

reckless operation in and of itself. In these cases, the misconduct may also result in a violation 

of 14 C.F .R. § 91.13 if it actually or potentially endangers the lives or property of others. 

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10/01/07 2150.38 

When calculating the amount of sanction 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 also reckless. 

b. Whether the Violation was Inadvertent and Not Deliberate. If a violation is 

deliberate or not inadvertent, a sanction at the upper end of the range or exceeding the range for 

that type of violation generally is appropriate. A deliberate violation generally warrants a 

sanction that is more severe than one that is just not inadvertent. 

(1) Not deliberate. This element means a lack of the degree of deliberation 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 of both inattention and lack 

of purposeful 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 of choosing not to consult the aircraft's 

· · instruments or choosing not to use other available means to verify altitude. The test to be applied 

is whether the conduct, not the factual or legal consequences, is inadvertent and unintended. 

Ferguson v. National Transportation Safety Board, 678 F.2d 82f, 828-829 (9th Cir. 1982). 

c. Certificate Holder's Level of Experience. 

(1) Level of experience refers primarily to the type of certificate and ratings held (for 

example~ student, private, commercial, airline transport pilot, or certified flight instructor), arid 

the number of hours flown, by the certificate holder. Certificate holders with greater levels of 

experience may be held to a higher standard. Thus, for example, commercial pilots may be held 

to a higher standard than 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 of care and diligence normally expected 

of a person with the certificate holder's level of experience. A significant deviation from the 

degree of care and diligence expected of the holder of that certificate may warrant a more 

aggravated sanction. 

d. Attitude of the 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 

or counseling that such conduct is in violation of those requirements might well be regarded as 

· having a poor compliance disposition. In evaluating compliance disposition, the FAA does not 

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view an alleged violator as having a poor attitude because the alleged violator fails to respond to 

a letter of investigation, chooses to be represented by counsel, or contests the violation. 

(2) In assessing the attitude of an alleged violator; the FAA may consider the declaration 

of an emergency to air. traffic control. When an emergency is genuine and not of the 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 of emergency 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 of good judgment and a constructive 

. attitude. When an emergency is of a person's own making, that person's declaration of an 

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 if a person voluntarily 

reports a violation. 

e. Degree of Hazard. 

(1) The degree of hazard may be increased as a result of the interplay of the operational 

environment (for example, weather conditions, congested vs. sparsely populated areas) and the 

nature of the threat to safety (to the life or property of another, inCluding those in the aircraft 

. being operated, to other aircraft, or to persons or property on the surface) that the misconduct 

presents. The safety threat is based on the reasonably foreseeable consequences of the · 

misconduct. For example, operating 500 feet below the minimum altitude poses a greater hazard 

than operating 100 feet below. Similarly, if an aircraft operator fails to comply with an 

airworthiness directive by operating 10 hours past a required inspection, the degree of hazard 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 reflect the degree of danger normally inherent in an average 

· violation of a regulation, without aggravating circumstances. As discussed in chapter 7, 

subparagraph 5.b., an increase in the degree of hazard 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 by Employer or Other Authority. This factor ordinarily involves the 

following elements: whether the alleged violator's employer has taken disciplinary action and 

whether criminal prosecution is involved. · 

(1) Employment discipline. Where the violation would normally call for a certain type 

of enforcement action,· the FAA takes that action regardless of any action taken by the violator's 

·employer. Generally, the FAA does not credit an employer's disciplinary action toward a period 

of suspension the FAA imposes against the violator's certificate because of the different 

purposes of government-ordered, as contrasted with employer-ordered, actions. 

(2) Criminal prosecution. When arising out of the same conduct, local, state, or federal 

prosecution does not preclude the FAA from taking appropriate remedial enforcement action; nor 

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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 if that 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 FAA wants to establish a violation history 

record. If the 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 of sanction to be sought in the FAA's punitive 

enforcement action. 

g. Use of a Certificate. This factor relates to the nature.or kind of activity 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 of care. 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 of sanction 

for a single, first-time, inadvertent violation. Given the expected norm, a prior violation record 

can be evidence of a poor compliance disposition or of a pattern of disregard for the FAA's . 

regulations, which are aggravating factors. As a result, a violation history can justify imposing a 

·. sanction at the higher end of the normal range or a sanction beyond the normal range. It might 

also justify revocation rather than suspension if the pattern of violation reflects a lack of 

qualification. In addition, a violation history might justify a certificate suspension if previously 

issued civil penalties have not produced the desired deterrent effect. In deciding whether a 

violation history justifies aggravating the sanction or changing the usual type of sanction, the 

FAA considers the length oftime that 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 of amendment, modification, suspension, or revocation of an 

FAA certificate; orders assessing a civil penalty; findings of violation contained in a consent 

order, order of compliance or denial; and fmdings of violation made by a federal court. In 

addition, a party may agree as part of a settlement that the FAA may consider alleged violations 

as fmdings of violation for future sanction determinations. 

i. Decisional Law. Decisions of the 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 

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the issuance of this 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, they should 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 of doing 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 carrier to go out of business. Therefore, the FAA uses 

air carrier size as one means of ensuring a relatively equivalent deterrent effect on each air 

carrier that violates the same FAA regulation. The resulting classification of air carriers by size 

and ranges of civil penalties are set forth in part one of the 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 of Sanction. One of the 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 of deterrent or disciplinary value 

to others similarly situated. This goal may not always be achieved, however, because of the 

inherently subjective nature ofthe exercise of judgment in setting sanctions. 

I. Whether the Violation was Reported Voluntarily. 

. (1) The FAA has programs that allow 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 or her report of 

another's violations, voluntarilxdJscloses his or her 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) If a person is not c.overed under one of these 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 with the FAA on steps to preclude recurrence of the · 

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 of credit given in setting a sanction depends on the extent and timing 

of the corrective action, that is, how extensive was the ·corrective action and how quickly was it 

taken. Implementing new procedures that are above those required under the FAA's regulations 

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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 of a 

deficiency but before FAA discovery of the violation ordinarily warrants greater mitigation than 

corrective action that is taken only after the alleged violator receives notice of the FAA's 

enforcement action. Corrective action taken by an alleged violator that simply brings that person 

into compliance with the statutory or regulatory 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 of the Table of Sanctions. 

a. General. Sanction determinations are not accomplished through a strict mathematical 

formula; rather, sanction determinations result from a judgment of where a case lies along a 

spectrum of gravity. Ultimately, the circumstances of each case are evaluated in terms of the 

needs of safety and the public interest. 

b. Single, First-time, Inadvertent Violations. 

(I) Part II of the table specifies both the normal types of sanction (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 for a single, first-time violation that is generally 

inadvertent (the table includes ranges of sanctions for several violations that usually are 

intentional, for example, interference with a crewmember, smoking on an aircraft). In addition, 

the table generally reflects 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 of paragraph 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 on the 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 of the 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 of the vioiation, level of experience, degree of hazard, action by 

employer or other authority, use of certificate, decisional law, ability to absorb sanction, 

consistency of the sanction with similar cases, corrective action), to the extent they are applicable 

or relevant. When determining a speCific sanction amount within a range, FAA enforcement 

personnel begin with an amount in the middle of the range and increase that amount toward the 

higher end of the range for aggravating factors or decrease that amount toward 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 on justifiable mitigation under factors j, I, and m of paragraph 4 

(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 when the following circumstances, relating to factors 

b, d, e, and h of paragraph 4 are present: the violation is other than inadvertent4

, the violator has 

a violation history, the violation involves a significant degree of hazard, or the 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 of Sanction. 

(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 bar to a concurrent 

proceeding to impose another, pursuing both actions solely for punitive purposes usually is not 

necessary. The FAA takes remedial and punitive actions in the same case, however, when 

warranted. 

(2) Selecting types of sanctions. Except in exceptional circumstances, the FAA uses the 

type of sanction 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 Multiple Acts or Multiple Violations. 

a. Description of Multiple Violations. Enforcement actions often involve multiple 

violations: multiple violations of a single regulation; a single violation of multiple regulations; 

or multiple violations ofmultiple regulations. In addition, under 49 U.S.C. § 4630l(a)(2), if a 

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 in their consequences for safety and the public interest as to require a penalty 

greater than the sum of the recommended amount of penalty provided for in the table for each 

violation .. 

c. Single Act of Noncompliance Resulting in Multiple Violations. When a single 

instance of noncompliance results in multiple violations of general and specific regulations 

involving the same or similar conduct, the FAA ordinarily does not compound the sanction to 

reflect the amount of sanction recommended in the table for each regulatory violation. In 

calculating the amount of sanction for multiple violations, FAA enforcement personnel 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 the S!lllction should be above the range in the table .. 

The ranges in the 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 of circumstances relating to the multiple violations, including the alleged violator's 

degree ofculpability, and whether the alleged violator had taken steps, although unsuccessful, to 

prevent the violations. 

d. Type of Legal Enforcement Action. Where this guidance designatesthe type of legal 

enforcement action for a single violation, the FAA ordinarily selects the same type of sanction 

for multiple violations of a similar nature. The seriousness of multiple 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 of multiple violations that 

ifF AA enforcement personnel were simply to add the recommended amounts of penalty 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. Determining Proposed 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 or more flights after being improperly returned to service), FAA 

enforcement personnel: 

(1) Identify each initial act or omission that caused or resulted in the multiple violations 

(for example, improper maintenance plus improper return to service; failure to maintain a quality 

control system). 

(2) Consult the table in Appendix B and the general guidance in chapter 7, paragraph 4, 

on aggravating and mitigating factors to determine the amount of penalty appropriate for each 

initial act or omission that caused or resulted in the multiple violations (for example, in 

airworthiness cases, a penalty for the act of improper maintenance or inspection; in 

manufacturing cases, a penalty for the act of failing to 'maintain a quality control system). 

~ . 

(3) Determine the amount of penalty for the numerous multiple violations by applying 

the guidance in chapter 7, subparagraphs 7.b. through d. Of particular importance in determining 

· an appropriate sanction for numerous multiple violations is the degree of the alleged violator's 

culpability for the multiple violations. A lower degree of culpability 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 of it 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 of culpability 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 to Jeveal such discrepancies; 

7-11 
10/01/07 2150.38 

• the alleged violator was not following maintenance or inspection procedures the 

FAA had approved or accepted; 

• the level of the 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 not require 

management involvement; 

• the alleged violator has a history of similar violations or a history of systemic 

deficiencies. 

Knowing and willful violations connote the highest degree of culpability. 

(4} Add the penalties arrived at for the initial violation to the penalty for the multiple 

violations. 

b. Limitations on Total Civil Penalty Amounts 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 of Appendix B. 

(2) The term isolated in Figures 7,..1 and 7-2 typically describes a single instance of an 

employee's failure to follow a stan,ttory or regulatory requirement, contrary to the company's 

own practice or procedure. A case may involve a number of isolated and unrelated violations. 

Each group ofthemultiple violations resulting from each isolated violation ordinarily is subject 

to the 'isolated, inadvertent ranges in Figures 7-1 or 7-2. 

(3) Inadvertent failures are considered systemic if they are repetitive or otherwise 

demonstrate an underlying deficiency in the alleged violator's system, practices, or procedures. 

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. Of particular 

importance is an evaluation of the seriousness of the potential hazard caused by the violation and 

the degree of culpability of the alleged violator for the multiple violations. 

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10/01/07 2150.38 

· Figure 7-1. Ranges of Penalties 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 of Penalties for Air Agencies, 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. Outside the Ranges. 

(1) Penalties lower than the ranges. It may be appropriate to select a civil penalty amount 

below the ranges in Figures 7-1 or 7-2 if the degree of culpability 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: 

• If the alleged violator was significantly culpable in permitting the initial·act or omission; 

• If the violations involve significant safety risks; 

• If there was an absence of corrective action by the alleged violator over an extended 

period oftime; · 

• Where it is necessary to provide an economic disincentive for regulatory noncompliance; 

or. 

• If the alleged violator has a poor compliance disposition or history. 

d. Intentional Violations. When there is substantial and reliable evidence that the alleged . 

violator knew of the 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 of an 

aircraft when there is evidence the operator knew the aircraft or flight was not in compliance 

with statutory or regulatory requirements, yet deliberately operated it anyway, is most serious, 

and apart from civil penalties, requires consideration of remedial certificate action. For multiple 

violations in these circumstances, any civil penalties sought may be up to the statutory maximum 

. penalty for each violation, regardless of the number of violations. · 

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 of Sanction. Except when the FAA exercises its prosecutorial discretion to settle 

an enforcement action, the FAA generally does not modify orders suspending or revoking a 

. certificate to provide for a civil penalty. The FAA also generally does notmodify orders 

assessing a civil penillty to provide for a certificate action. The FAA 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 after the original order has been issued may provide a basis for modifying the amount 

of sanction, but would not ordinarily provide a basis for modifying the type of sanction. 

However, if newly discovered facts raise new issues, such as the alleged violator's qualifications 

to hold a certificate, or if they implicate a statutorily-mandated penalty, the FAA modifies the 

. type of sanction. · 

b. Amount of Sanction. 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 of sanction. 

The FAA modifies the amount of sanction 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 Enforcement Programs. At times 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 of industry. When these circumstances arise, the FAA may 

set up a special emphasis enforcement program, designed to focus on a particular area of 

noncompliance on a national or local geographical basis. · 

10. Small Entities. 

a. General. 

(1) Under the 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, of civil 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 applicability to violations discovered through participation in a compliance 

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10/01/07 2150.38 

assistance or audit program operated or supported by the agency; excluding small entities that 

have been subject to 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 effort to 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) Congress intended that agencies have the discretion to develop the limits of their 

enforcement policies 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 of other statutes, to place conditions or exclusions on its 

enforcement policy under SBREF A, 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 criteria be met before an agency reduces or waives a penalty against a 

small entity. Although the SBREF A imposes a requirement on agencies to establish penalty 

reduction and waiver programs for small entities, Congress recognized that some agencies 

already have formal or informal policies or programs that would meet this requirement. 

. b. FAA's Policy under the SBREFA. 

(1) The FAA's compliance and enforcement program 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) Under the 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 of correction. A warning notice brings to the 

attention of the regulated person or entity the facts and circumstances that indicate that a 

violation has occurred, identifies the regulatory provision at issue, and requests future 

compliance. A letter of correction is similar but is intended for use when there is an agreement 

· with the regulated party that corrective action acceptable to the FAA has, or within a reasonable 

period will be, taken. Administrative actions are less onerous than a waiver of penalty in that 

they neither carry a sanction nor result in a fmding of violation. 

(3) Under the agency's voluntary disclosure reporting program, the FAA takes 

administrative action instead of civil penalty action against most regulated entities, including 

small entities that voluntarily report certain apparent violations to the FAA, complete corrective 

action satisfactory to the FAA to prevent their recurrence, and meet certain other criteria. 

( 4) The FAA's sanction policies have historically provided for reductions of civil 

·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 prevent the entity from continuing in 

business. 

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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 of civil 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 of such entities as a 

means of providing a relatively equivalent deterrent for the same violation against each air 

carrier and commercial operator. While the FAA has not specified such sanction ranges for other 

certificate holding entities, it is the FAA's policy to seek penalties generally relative to the size 

and revenue of the operation for repair stations, manufacturers, airports, and other entities 

holding certificates. 

(6) Although the FAA does not reduce or waive the penalty of an 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 if appropriate 

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) Each FAA employee who conducts an inspection of a small business concern that is 

regulated by the FAA provides the small business concern with an information sheet. The 

information sheet informs that entity that it may submit complaints or comments regarding unfair 

FAA regulatory enforcement to the National Ombudsman. The information sheet contains the 

following language: 

Our objective is to ensure a fair regulatory enforcement environment. If you feel that you 

have been treated unfairly or unprofessionally, 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 contact the Small Business Administration's National Ombudsman at 1- 888-

REG-F AIR (1-888-734-3247), or www .sba.gov/ombudsman regarding the fairness of the 

compliance and enforcement activity of the FAA. The FAA strictly forbids retaliatory 

acts by its employees. As such, you should feel confident that you will not be penalized 

for expressing your concerns about the FAA's compliance and enforcement activities. 

11. Remedial Sanction Guidance Policy. 

a. General. 

( 1) The FAA statute requires the Administrator to promote "safe flight of civil aircraft in 

air commerce .... " 49 U.S.C. § 44701(e). As one means of achieving this goal, the statute 

specifically authorizes the Administrator to issue various certificates. These certificates include 

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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). For most of these certificates, the statute requires the 

Administrator to 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 qualified to 

hold those certificates; that aircraft and aircraft engine parts are properly designed and 

manufactured, perform properly, and meet the regulations and minimum standards prescribed 

before issuing a type certificate, and so forth. 49 U.S.C. §§ 44702-44706. Once the 

Administrator finds the applicant is qualified for the certificate applied for, the Administrator is 

required to issue the certificate in question. 

(2) Because the 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, or has reason to believe, the certificate holder no longer possesses the 

qualifications required to hold a certificate. Thus, the statute provides that the Administrator 

"may reinspect at any time a civil aircraft, aircraft engine, propeller, appliance, air navigation · 

facility, or air agency or reexamine 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 of a certificate issued under [chapter 44 7 of the statute] if ... the 

Administrator decides after conducting a reinspection, reexamination, or other investigation that 

safety in air commerce or air transportation 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 either the technical proficiency or the degree of care, judgment, and responsibility, 

required for the certificate and ratings held. The proper standard for revocation is not whether 

specific violations demonstrate a failure to exercise the necessary qualifications of a certificate 

holder, but rather whether the violations demonstrate that the holder has never possessed or no 

longer possesses such qualifications. Similarly, suspension until demonstration of qualification 

is appropriate wh(m the agency has reason to believe the certificate holder may lack the required 

competence to hold a certificate and generallywhen the 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 Generally Warranting Revocation. 

(1) The FAA has conCluded that by their nature, some acts of misconduct are so 

egregious as to demonstrate the certificate holder never possessed or no longer possesses the 

qualifications required to hold any airman certificate and other certificates. Therefore, such acts 

of misconduct warrant revocation of all airman certificates and other certificates held by the 

certificate holder. Such acts include: making a fraudulent or intentionally false statement; 

operating an aircraft while under the influence of alcohol or drugs, or with an alcohol 

concentration of .04 percent or above, or within 8 hours of consuming 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 stimulant drugs or substances as defined i~ federal 

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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 of any federal or state statute relating 

to the growing, processing, manufacture, sale, disposition, possession, transportation, or · . 

importation of narcotic drugs, marijuana, depressant or stimulant drugs or substances involving 

the use of an aircraft, the exercise of the privileges of the alleged violator's airman certificate to 

further the prohibited conduct, or more than one drug conviction of any 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 other than revocation is warranted. Because 

,ofthe serious implications for aviation safety raised by these cases, however, FAA legal counsel 

coordinates any decision to seek a sanction other than 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 or Fraudulent Statements. 

(1) In general, the FAA considers the making of intentionally false or fraudulent 

statements so serious ·an offense that it results in revocation of all 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 F AA.has handled differently one area of intentional falsification - omitting 

. information related to alcohol- or drug-related convictions, and other similar convictions, from 

applications for airman medical certification. In FAA Order 2150.3A, Compliance and 

Enforcement (C & E) Bulletin No. 90-2, issued on February 6, 1990, the agency's policy called 

for the following sanctions: revoking the alleged violator's current medical certificate, if any, 

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 intoxicated or driving under the influence (DUI) conviction; revoking any current medical 

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 current medical and any 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 of any type. 

(3) The FAA has 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 the privileges of the alleged violator's certificate also can warrant revocation in some 

circumstances. Revocation is appropriate where the totality of the circumstances underlying the conviction indicates 

that the alleged violator lacks the judgment, responsibility, and compliance attitude required of an airman. This 

determination must be made on a case-by-case basis. 

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10/01/07 2150.38 

No. 90-2, and has concluded that the sanction guidance for fraudulent or intentional falsification 

should be the same regardless of the type of case involved. The FAA has 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 of any other record. In essence, a person 

who fraudulently or intentionally falsifies these records demonstrates the same lack of care, · 

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 F AArescinds the sanction 

guidance regarding intentionally false or fraudulent statements in that bulletin and withdraws the 

Notice of Enforcement 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. General Purpose and Policy. 

(1) The table at Appendix B, part II, Figure B-3-p provides the suggested sanction ranges 

for a single act of unruly conduct by a passenger subject to the provisions of 49 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's judgment 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 of prosecutorial discretion a decision not to proceed with 

enforcement action depends on the totality of the circumstances in a particular case. Where the 

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 of cond{J.ct subject to 49 U.S.C. § 46318 and the varied facts and 

circumstances within which unruly conduct may occur, may also warrant consideration of other 

mitigating and aggravating factors unique to unruly passenger conduct. Some of these 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 of an appropriate sanction within 

or outside the sanction range. 

(1) The severity of the unruly conduct. The severity of the conduct may be indicated by 

several factors, including: 

• The physical characteristics of the individual committing the unnily conduct 

contrasted with those of the victim. 

• The nature of the conduct itself. 

• The extent of any injury inflicted. 

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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 crewmember has safety duties to perform on a flight, unruly conduct against a crewmember 

may be 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 that resulted 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 that the flight be diverted from its intended 

· destination. · 

( 6) Whether the unruly conduct necessitated that the flight crew call ahead for law 

enforcement to meet the flight on arrival. · 

(7) Whether the unruly conduct was inflicted with malice or in anger. 

c. Additional Mitigating Factors to Consider. The factors listed in chapter 7, 

subparagraphs 12.c.(l)-(3) may justify a sanction below the sanction range, or in the agency's 

prosecutorial discretion, may justify 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 or has already made monetary restitution in the context of a criminal prosecution for the· 

same conduct. · 

(2) Whether the passenger's unruly conduct was caused by a diagnosed medical or 

mental condition for whichthe<passenger was receiving medical treatment. 

(3) Whether the unruly conduct was. a reasonable response to a provocation by another. 

However, a passenger's use of unreasonable 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 "Imminent Threat" to Safety 

of the Aircraft or Others on Board the Aircraft. 

(1) The sanction range at Appendix B, part II, Figure B-3-p for an act that poses an 

imminent threat to safety of aircraft or other individuals on the aircraft applies when there is an 

· imminent threat to the safety of the aircraft or to the collective safety of others on board the 

aircraft. For example, a passenger attemP.tingto open an emergency exit door would be an 

imminent threat to the safety of the aircraft. If the 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 

imminentthreat was the unintended consequence of the passenger's careless or reckless act or 

whether the passenger intended the consequences. The former would justify a sanction toward 

·the low end of the range, while the latter would justify a sanction toward the maximum range. 

e. Applicable Sanction Ranges for Security Officers or Others Assigned a Law 

Enforcement Function on a Flight (for example, Federal Air Marshals 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 Unruly Passenger 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 of multiplying the number of separate acts of unruly 

behavior by a sanction amount in the range for a single act. Instead, they use the guidance in the 

table and exercise their judgment as to the seriousness of the 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 of Sanctions 

All Enforcement Programs 

Except Hazardous Materials 

Part One - Abbreviations and Definitions 

. 2150.38 

1. Applicability. This table of sanctions 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 of the violation. 

2. Abbreviations. The following abbreviations are used in this Table: 

AP IS means approved production inspection system 

AIW means airworthiness 

A WC 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 over more than one flight. It also may involve a violation that is ongoing,jor example, 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 or multiple violations) of 

chapter 7. A combination of punitive and remedial sanctions is appropriate when continuing 

violations are ongoing. · 

b. Violation committed by a small business concern. Section 503 of Vision 1 00---Century 

of Aviation 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; 

the law sets different limits on the 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 small business concern as an enterprise "Which is independently owned and 

operated and which is not dominant in its Qeld of operation." The Small Business 

Administration regulations implement the Small Business Act and defme business concern as 

8-1 
10/01/07 2150.38 

"a business entity organized for profit, with a place of business 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 of taxes or use of American products, materials ot labor." 13 

C.P.R. § 121.105. The SBA regulations further define small business concern in tables, 

describing each kind of entity by its economic activity or industry, and listing the limit for 

small by annual receipts or, more commonly, number of employees. (The size limits generally 

are established under the North American Industry Classification System (NAICS).) For the 

complete list, see 13 C.P.R.§ 121.201 or the SBA's website at www.sba.gov. Thus, if a person 

meets the definition of business concern and has. annual receipts or the number of employees 

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 of employees, unless otherwise noted). 

Manufacturing 

Aircraft- 1,500 employees 

Aircraft engine and part- 1,000 employees 

Other aircraft part and equipment- 1,000 employees 

Air transportation 

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 annual receiptsNote that the following guidance uses large business concern for some civil penalty ranges. 

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 meet the definition of"small business concern." 

c. Civil Penalty Ranges. For the purpose of this table, when civil penalty action is 

recommended and described as Minimum, Moderate, or Maximum, the penalty ranges are 

defined in subparagraphs ( 1) through (9) of this paragraph. Note that the middle of each 

recommended sanction ran~e would be for a single violation without aggravating or mitigating 

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 AIR CARRIER AND OPERATOR 

GROUP I- Each air carrier operating under part 121 or part 135, with an aimual operating 

revenue of$100,000,000 or more. Operating revenue is determined by reference to DOT's 

·"Air Carrier 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 of less than $100,000,000, or under part 135 with an annual operating 

. revenue of less than $100,000,000, ifthe 135 operator has 50 or more pilots and 25 or more 

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-$4,3 99 

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 not under 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 BY PART 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 BY AIR 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 COMMITTED BY AIRPORT 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 

not under 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 

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 $500-$1,100 

Moderate $300-$499 

Minimum $100-$299 

(8) VIOLATION RELATING TO THE TRANSPORTATION OF A HAZARDOUS 

MATERIAL (14 CFR), THE REGISTRATION OR RECORDATION OF AN 

AIRCRAFT NOT USED TO PROVIDE AIR TRANSPORTATION, 

THE LIMITATION ON THE CONSTRUCTION OR ESTABLiSHMENT OF A 

LANDFILL, OR THE SAFE DISPOSAL OF A LIFE-LIMITED AIRCRAFT PART. 

Large Business Concern (if entity 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 (if not 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-$4,3 99 

$55 0-$2, 199 

F~r violations covered lihder 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 

(9) OTHER VIOLATION COMMITTED BY AN INDIVIDUAL. 

AIRMAN SERVING AS AN AIRMAN- 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 or Individual (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 or Individual (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 or corrective action; injunctive relief. For many kinds of violations, 

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 

of an entity's certificate or other approval, pending compliance or corrective action, or 

injunctive relief against an entity that does not hold an FAA approval, would be appropriate. 

In egregious circumstances revocation of the entity's certificate or other approval may be 

warranted. Such action or relief may be considered in addition to the assessment of a civil 

penalty as recommended in the following tables. 

Furthermore, amendment or modification of a certificate or approval may be appropriate in the 

circumstance where a defmitive part of the 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 of parts, but has quality control problems for only one kind of part. Such 

action may be considered in addition to the assessment of a civil penalty as recommended in 

the \following ta:bles. 

Part Two - 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 or Aircraft Paperwork 

Fig. B-1-h. Performance of Maintenance 

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 of Air 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. Passenger operations 

Fig. B-3-1. Acting or attempting to act as a crewrnernber under the influence of drugs or 

alcohol; consumption of alcohol 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 of Drug 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 of the drug and alcohol prohibitions 

Fig. B-5-q. Employees located outside the Territory of the 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 of Noise Provisions. 

Fig. B-7-a. Aircraft Noise (14 C.F.R. p;;trt 91, subpart I) 

8. Violations of Pilot Records Improvement Act (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·ofDesign Approval, and 

Letter of Acceptance Manufacturers 

Fig. B-9-e. Replacement or Modification Parts Manufacturers 

Fig. B-9-f. All Production Approval Holders 

Fig. B-9-g. TC or STC Holder; Manufacturers and Alteration Entities 

Fig. B-9-h. All persons, including designees 

10. Aircraft Owner/Operator Registration 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 

of all part 61, 

63, or65 

certificates 

(3) Conviction(s) for other than simple possession* Revocation 

of all part 61, 

63, or65 

certificates 

*It may be appropriate, in the exercise of prosecutorial discretion, not to take enforcement action when 

a conviction is several years old when discovered by the FAA and there is evidence that the certificate 

holder has 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 of an air carrier operating under part 121 or part Moderate 

135 operator to obtain an operations specification 

(2) Failure of a part 145 operator (that opts to have its own Moderate 

drug program and AMPP) to obtain an operations 

specification 

(3) Failure of a Section 135.l(c) or non-FAA air traffic Moderate 

control facility to submit a registration to the FAA 

( 4) Failure of a contractor (that opts to have its own drug and Moderate 

alcohol prog_rams)_ to submit a registration to ·the FAA 

(5) Failure to implement or maintain 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 Civil Penalty 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 prevention program 

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 of the pre-employment testing 

requirement -

(2) Failure to pre-employment drug test an individual and/or Maximum 

receive a negative drug test result prior to 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-employment test 

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) Failure to meet the minimum annual percentage rate for Moderate 

random drug and/or alcohol testing 

(3) Failure to use a scientifically valid method of random 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 testing just before the employee Minimum 

is to perform a safety-sensitive function, during or just after the 

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 test each employee who Maximum 

performs a safety-sensitive functiqp., if that employee's . - performance either contributed to an accident or cannot be 

completely discounted as a contributing factor to the accident. 

(2) Failure to post-accident drug test an employee within 32 Maximum 

.hours after the accident. 

(3) Failure to conduct post-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 of using 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 of individuals without a Moderate 

reasonable and articulable belief that the employee is using a 

prohibited drug on the basis of specific, contemporaneous 

physical, behavioral, or performance indicators of probable 

drug use 

(3) Reasonable suspicion alcohol testing of individuals when Moderate 

reasonable suspiCion of alcohol misuse has not been 

determined by a trained supervisor based on specific, 

contemporaneous, articulable observations concerning the 

appearance, behavior, speech or body.odor of the 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 of or 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 

after the individual refused to submit to a required drug test or 

received a verified positive drug test result 

(2) Failure to receive a verified negative return to duty drug Maximum 

test result for an individual prior to 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 prior to . 

returning him or her to a safety-sensitive function. 

( 4) Failure to ensure that the employee has received an alcoho Maximum 

test result with an alcohol concentration of less than 0.02 on a 

return-to-duty test prior to resuming the performance of safetysensitive 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 of a 

safety-sensitive function after refusing 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 of an employee 

(3) Failure to discontinue follow-up testing after 60 months Moderate 

from the date the individual returned to a covered function 

(4) Failure of a substance abuse professional to determine the Maximum 

number and frequency of follow-up tests 

B-33 
EXHIBIT 

My FAA '?-Q\'V 

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Status Date 

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Date 

Certificate 

Expiration 

Date 

Last DO 

Update Date 

Previous 

Designator 

Previous 

Certificate 

Number 

MR3A020K 

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Air Carrier 

Active (A) 

07/08/2002 

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06/10/2011 

01/05/2012 

I No I Description 

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jvalue 

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Rotorcraft 

... FA.R:1:3li 

Areas of 

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Excemptions 

Authorized 

Deviations 

Authorized 

· · · Fie1iabi1i1Y · Program 

Authorized 

No 

No 

No 

Crewmember No training 

Training required 

Continuous 

. . ailworthiness 

Airworthiness maintenance 

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Hazardous 

Materials No 

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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 

CHIEF ADMINISTRATIVE 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, 

Chid Administrative 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 of witnesses and a summary of their proposed testimony- a list of 

witnesses and a summary of their proposed testimony shall be exchanged 

on or bdore May 15, 2012. 

(b) Exchanging exhibits and discovery - Exchange of exhibits to be introduced at the 

hearing; a list of witnesses that may be called at the hearing; and all other discovery shall 

be completed no later than 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 l 6-17, 2012. 

SO ORDERED. 

Ronnie A. Yoder 

Chief Administrative J ,aw Judge 

2 
02/13/2012 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 2WI 000 

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 

1 Aviation 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 of Transportation 

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