```

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

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 120

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

Combined Drug and Alcohol Testing Programs

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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

[[Page 39195]]

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

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

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

FOR FURTHER INFORMATION CONTACT: For technical questions concerning 
this action, contact Rafael Ramos, Office of Aerospace Medicine, Drug 
Abatement Division, AAM-800, Federal Aviation Administration, 800 
Independence Avenue SW., Washington, DC 20591; telephone (202) 267-
8442; facsimile (202) 267-5200; email: drugabatement@faa.gov.
    For legal questions concerning this action, contact Neal O'Hara, 
Attorney, Regulations Division, AGC-240, Federal Aviation 
Administration, 800 Independence Avenue SW., Washington, DC 20591; 
telephone (202) 267-5348.

SUPPLEMENTARY INFORMATION: 

Authority for This Rulemaking

    The FAA's authority to issue rules on aviation safety is found in 
Title 49 of the United States Code. Subtitle I, Section 106 describes 
the authority of the FAA Administrator. Subtitle VII, Aviation 
Programs, describes in more detail the scope of the Agency's authority.
    This rulemaking is promulgated under the authority described in 
Subtitle VII, Part A Chapter 451, Section 45102--Alcohol and Controlled 
Substances Testing. Under that section, the FAA is charged with 
prescribing regulations for air carriers to establish and to conduct 
pre-employment, reasonable suspicion, random and post-accident drug and 
alcohol testing. Parts of this rule, for example those sections dealing 
with contract air traffic controllers, were promulgated under the FAA's 
general rulemaking authority in 40 U.S.C. 44701(a)(5). This regulation 
is within the scope of that authority.

I. Overview of Proposed Rule

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

II. Background

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

[[Page 39196]]

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

III. Discussion of the Proposal

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

IV. Regulatory Notices and Analyses

Introduction

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order 12866 and Executive Order 13563 direct 
that each Federal agency shall propose or adopt a regulation only upon 
a reasoned determination that the benefits of the intended regulation 
justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. 
L. 96-354) requires agencies to analyze the economic impact of 
regulatory changes on small entities. Third, the Trade Agreements Act 
(Pub. L. 96-39) prohibits agencies from setting standards that create 
unnecessary obstacles to the foreign commerce of the United States. In 
developing U.S. standards, this Trade Act requires agencies to consider 
international standards and, where appropriate, that they be the basis 
of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4) requires agencies to prepare a written assessment of 
the costs, benefits, and other effects of proposed or final rules that 
include a Federal mandate likely to result in the expenditure by State, 
local, or tribal governments, in the aggregate, or by the private 
sector, of $100 million or more annually (adjusted for inflation with 
base year of 1995). This portion of the preamble summarizes the FAA's 
analysis of the economic impacts of this proposed rule.

Regulatory Evaluation

    Department of Transportation Order DOT 2100.5 prescribes policies 
and procedures for simplification, analysis, and review of regulations. 
If the expected cost impact is so minimal that a proposed or final rule 
does not warrant a full evaluation, this order permits that a statement 
to that effect and the basis for it be included in the preamble if a 
full regulatory evaluation of the cost and benefits is not prepared. 
Such a determination has been made for this proposed rule. The 
reasoning for this determination follows:
    (1) The proposed rule is voluntary. It does not impose new 
regulatory requirements. For entities that choose to follow this 
proposed rule, it is likely that regulatory requirements and costs 
would be reduced.
    (2) The proposed rule is not an economically ``significant 
regulatory

[[Page 39197]]

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

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (RFA) establishes ``as a 
principle of regulatory issuance that agencies shall endeavor, 
consistent with the objective of the rule and of applicable statutes, 
to fit regulatory and informational requirements to the scale of the 
businesses, organizations, and governmental jurisdictions subject to 
regulation.'' To achieve that principle, the RFA requires agencies to 
solicit and consider flexible regulatory proposals and to explain the 
rationale for their actions. The RFA covers a wide-range of small 
entities, including small businesses, not-for-profit organizations and 
small governmental jurisdictions.
    Agencies must perform a review to determine whether a proposed or 
final rule will have a significant economic impact on a substantial 
number of small entities. If the agency determines that it will, the 
agency must prepare a regulatory flexibility analysis as described in 
the Act.
    However, if an agency determines that a proposed or final rule is 
not expected to have a significant economic impact on a substantial 
number of small entities, section 605(b) of the 1980 RFA provides that 
the head of the agency may so certify and a regulatory flexibility 
analysis is not required. The certification must include a statement 
providing the factual basis for this determination, and the reasoning 
should be clear.

Size Standards

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

International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the 
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal 
agencies from establishing standards or engaging in related activities 
that create unnecessary obstacles to the foreign commerce of the United 
States. Pursuant to these Acts, the establishment of standards is not 
considered an unnecessary obstacle to the foreign commerce of the 
United States, so long as the standard has a legitimate domestic 
objective, such as the protection of safety, and does not operate in a 
manner that excludes imports that meet this objective. The statute also 
requires consideration of international standards and, where 
appropriate, that they be the basis for U.S. standards. The FAA has 
assessed the potential effect of this proposed rule and determined that 
it would have only a domestic impact, and therefore no effect on 
international trade.

Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement 
assessing the effects of any Federal mandate in a proposed or final 
agency rule that may result in an expenditure of $100 million or more 
(adjusted annually for inflation) in any one year by State, local, and 
tribal governments, in the aggregate, or by the private sector; such a 
mandate is deemed to be a ``significant regulatory action''. The FAA 
currently uses an inflation-adjusted value of $143.1 million in lieu of 
$100 million. This proposed rule does not contain such a mandate; 
therefore, the requirements of Title II do not apply.

Paperwork Reduction Act

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

[[Page 39198]]

International Compatibility

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

Environmental Analysis

    FAA Order 1050.1E identifies FAA actions that are categorically 
excluded from preparation of an environmental assessment or 
environmental impact statement under the National Environmental Policy 
Act in the absence of extraordinary circumstances. The FAA has 
determined this rulemaking action qualifies for the categorical 
exclusion identified in paragraph 312(d) and involves no extraordinary 
circumstances.

Regulations Affecting Intrastate Aviation in Alaska

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

V. Executive Order Determinations

A. Executive Order 13132, Federalism

    The FAA has analyzed this proposed rule under the principles and 
criteria of Executive Order 13132, Federalism. The agency has 
determined that this action would not have a substantial direct effect 
on the States, or the relationship between the Federal Government and 
the States, or on the distribution of power and responsibilities among 
the various levels of government, and, therefore, would not have 
Federalism implications.

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

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

VI. Additional Information

A. Comments Invited

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

B. Availability of Rulemaking Documents

    An electronic copy of rulemaking documents may be obtained from the 
Internet by--
    1. Searching the Federal eRulemaking Portal (http://www.regulations.gov);
    2. Visiting the FAA's Regulations and Policies web page at http://www.faa.gov/regulations_policies; or
    3. Accessing the Government Printing Office's web page at http://www.gpo.gov/fdsys.
    Copies may also be obtained by sending a request to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. 
Commenters must identify the docket or notice number of this 
rulemaking.
    All documents the FAA considered in developing this proposed rule, 
including economic analyses and technical reports, may be accessed from 
the Internet through the Federal eRulemaking Portal referenced in item 
(1) above.

List of Subjects in 14 CFR Part 120

    Alcoholism, Air carriers, Air traffic control, Airmen, Alcohol 
abuse, Alcohol testing, Aviation safety, Charter flights, Commercial 
air tour operators, Contract air traffic controllers, Drug abuse, Drug 
testing, Operators, reporting and recordkeeping requirements, Safety, 
Safety-sensitive, Transportation.

The Proposed Amendment

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

PART 120--DRUG AND ALCOHOL TESTING PROGRAM

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

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

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

Sec.  120.115  Employee Assistance Program (EAP).

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

[[Page 39199]]

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

Sec.  120.117  Implementing a drug testing program.

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

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

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

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

* * * * *
    (e) Obtaining a Letter of Authorization from the FAA. (1) To obtain 
a Letter of Authorization from the FAA, you must submit, in duplicate, 
the following information to the Flight Standards District Office 
nearest your principal place of business:
    (i) Company name.
    (ii) Telephone number.
    (iii) Address where your drug and alcohol testing program records 
are kept.
    (iv) Type of safety-sensitive functions you perform for an employer 
(such as flight instruction duties, aircraft dispatcher duties, 
maintenance or preventive maintenance duties, ground security 
coordinator duties, aviation screening duties, air traffic control 
duties).
    (v) Whether you have 50 or more covered employees, or 49 or fewer 
covered employees.
    (vi) A signed statement indicating that your company will comply 
with this part and 49 CFR part 40.
    (2) This Letter of Authorization will satisfy the requirements for 
both your drug testing program under this subpart and your alcohol 
testing program under subpart F of this part.

[[Page 39200]]

    (3) Update the Letter of Authorization information as changes 
occur. Send the updates, in duplicate, to the Flight Standards District 
Office nearest your principal place of business.
    (4) If you are a part 119 certificate holder with authority to 
operate under part 121 or 135 and intend to begin operations as defined 
in Sec.  91.147 of this chapter, you must also advise the FAA's Drug 
Abatement Division at the Federal Aviation Administration, Office of 
Aerospace Medicine, Drug Abatement Division (AAM-800), 800 Independence 
Avenue SW., Washington, DC 20591.
    (f) Obtaining a Drug and Alcohol Testing Program Registration from 
the FAA. (1) To obtain a Drug and Alcohol Testing Program Registration 
from the FAA, you must submit, in duplicate, the following information 
to the Office of Aerospace Medicine, Drug Abatement Division:
    (i) Company name.
    (ii) Telephone number.
    (iii) Address where your drug and alcohol testing program records 
are kept.
    (iv) Type of safety-sensitive functions you perform for an employer 
(such as flight instruction duties, aircraft dispatcher duties, 
maintenance or preventive maintenance duties, ground security 
coordinator duties, aviation screening duties, air traffic control 
duties).
    (v) Whether you have 50 or more covered employees, or 49 or fewer 
covered employees.
    (vi) A signed statement indicating that: Your company will comply 
with this part and 49 CFR part 40; and you intend to provide safety-
sensitive functions by contract (including subcontract at any tier) to 
a part 119 certificate holder with authority to operate under part 121 
or part 135 of this chapter, an operator as defined in Sec.  91.147 of 
this chapter, or an air traffic control facility not operated by the 
FAA or by or under contract to the U.S. military.
    (2) Send this information, in duplicate, to the Federal Aviation 
Administration, Office of Aerospace Medicine, Drug Abatement Division 
(AAM-800), 800 Independence Avenue SW., Washington, DC 20591.
    (3) This Drug and Alcohol Testing Program Registration will satisfy 
the registration requirements for both your drug testing program under 
this subpart and your alcohol testing program under subpart F of this 
part.
    (4) Update the registration information as changes occur. Send the 
updates, in duplicate, to the address specified in paragraph (f)(2) of 
this section.
    4. Amend Sec.  120.221 by revising paragraph (b) to read as 
follows:

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

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

Sec.  120.225  How to implement an alcohol testing program.

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

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

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

[[Page 39201]]

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

* * * * *
    (e) Obtaining a Letter of Authorization from the FAA. (1) To obtain 
a Letter of Authorization from the FAA, you must submit, in duplicate, 
the following information to the Flight Standards District Office 
nearest your principal place of business:
    (i) Company name.
    (ii) Telephone number.
    (iii) Address where your drug and alcohol testing program records 
are kept.
    (iv) Type of safety-sensitive functions you perform for an employer 
(such as flight instruction duties, aircraft dispatcher duties, 
maintenance or preventive maintenance duties, ground security 
coordinator duties, aviation screening duties, air traffic control 
duties).
    (v) Whether you have 50 or more covered employees, or 49 or fewer 
covered employees.
    (vi) A signed statement indicating that your company will comply 
with this part and 49 CFR part 40.
    (2) This Letter of Authorization will satisfy the requirements for 
both your drug testing program under subpart E of this part and your 
alcohol testing program under this subpart.
    (3) Update the Letter of Authorization information as changes 
occur. Send the updates, in duplicate, to the Flight Standards District 
Office nearest your principal place of business.
    (4) If you are a part 119 certificate holder with authority to 
operate under part 121 or 135 and intend to begin operations as defined 
in Sec.  91.147 of this chapter, you must also advise the FAA's Drug 
Abatement Division at the Federal Aviation Administration, Office of 
Aerospace Medicine, Drug Abatement Division (AAM-800), 800 Independence 
Avenue SW., Washington, DC 20591.
    (f) Obtaining a Drug and Alcohol Testing Program Registration from 
the FAA. (1) To obtain a Drug and Alcohol Testing Program Registration 
from the FAA you must submit, in duplicate, the following information 
to the Office of Aerospace Medicine, Drug Abatement Division:
    (i) Company name.
    (ii) Telephone number.
    (iii) Address where your drug and alcohol testing program records 
are kept.
    (iv) Type of safety-sensitive functions you perform for an employer 
(such as flight instruction duties, aircraft dispatcher duties, 
maintenance or preventive maintenance duties, ground security 
coordinator duties, aviation screening duties, air traffic control 
duties).
    (v) Whether you have 50 or more covered employees, or 49 or fewer 
covered employees.
    (vi) A signed statement indicating that: Your company will comply 
with this part and 49 CFR part 40; and you intend to provide safety-
sensitive functions by contract (including subcontract at any tier) to 
a part 119 certificate holder with authority to operate under part 121 
or part 135 of this chapter, an operator as defined in Sec.  91.147 of 
this chapter, or an air traffic control facility not operated by the 
FAA or by or under contract to the U.S. military.
    (2) Send this information, in duplicate, to the Federal Aviation 
Administration, Office of Aerospace Medicine, Drug Abatement Division 
(AAM-800), 800 Independence Avenue SW., Washington, DC 20591.
    (3) This Drug and Alcohol Testing Program Registration will satisfy 
the registration requirements for both your drug testing program under 
subpart E of this part and your alcohol testing program under this 
subpart.
    (4) Update the registration information as changes occur. Send the 
updates, in duplicate, to the address specified in paragraph (f)(2) of 
this section.

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