[Federal Register Volume 78, Number 135 (Monday, July 15, 2013)]
[Rules and Regulations]
[Pages 41999-42006]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-16852]



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  Federal Register / Vol. 78, No. 135 / Monday, July 15, 2013 / Rules 
and Regulations  

[[Page 41999]]



DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 120

[Docket No.: FAA-2012-0688; Amdt. No. 120-1]
RIN 2120-AK01


Combined Drug and Alcohol Testing Programs

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rulemaking allows 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 commercial air 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 existing rules. This final rule also 
clarifies existing instructions within the rule, corrects a 
typographical error, and removes language describing a practice that 
has been discontinued.

DATES: Effective September 13, 2013. Any currently held exemptions 
allowing part 121 or part 135 operators to combine their drug and 
alcohol testing programs with the testing programs for their commercial 
air tour operations will expire on the effective date of this rule.

ADDRESSES: For information on where to obtain copies of rulemaking 
documents and other information related to this final rule, see ``How 
To Obtain Additional Information'' in the SUPPLEMENTARY INFORMATION 
section of this document.

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: [email protected].
    For legal questions concerning this action, contact Neal O'Hara, 
Attorney, Office of the Chief Counsel--International Law, Legislation, 
and Regulations Division, AGC-200, Federal Aviation Administration, 800 
Independence Avenue SW., Washington, DC 20591; telephone (202) 267-
5348; email: neal.o'[email protected].

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 operators 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 49 U.S.C. 44701(a)(5). This 
regulation is within the scope of that authority.

I. Overview of Final Rule

    Some part 121 air carriers and part 135 commuter and on-demand 
operators also conduct commercial air tours. Part 121 and part 135 each 
contain requirements for drug and alcohol testing. Until 2007, an 
operator's drug and alcohol testing program covered its commercial air 
tour operations.
    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 required drug and alcohol 
testing for commercial air tour operations that was separate from, and 
in addition to, the testing required by part 121 and part 135. This 
final rule gives part 121 and part 135 operators with commercial air 
tour operations the option of administering one drug and alcohol 
testing program that will cover both operations. The intent of this 
action is to lessen the administrative burden on such operators.
    This rule also includes four other actions--
    1. It makes clear that operators obtaining a Letter of 
Authorization from the local Flight Standards District Office (FSDO) to 
conduct commercial air tour operations are considered to have 
registered their drug and alcohol testing program by submitting certain 
information to the FSDO.
    2. It corrects the omission of a reference reiterating that on-duty 
use of alcohol is grounds for permanent disqualification from service. 
That reference was inadvertently left out of the May 14, 2009, final 
rule titled ``Drug and Alcohol Testing Program'' (74 FR 22653).
    3. It reorganizes existing rule text to alleviate any confusion 
about the requirement that training of supervisors, as well as training 
of employees, must be documented as part of each employer's employee 
assistance program.
    4. It makes clear that the Agency's practice of approving the 
employer's drug and alcohol testing program has been discontinued.

II. Background

    As noted above, in May 2009, the FAA published the Drug and Alcohol 
Testing Program rule. That rule moved the drug and alcohol testing 
regulations into a new part 120.
    Part 120 of Title 14 of the Code of Federal Regulations (CFR) 
requires the establishment of 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 three groups of operators to implement a drug and alcohol 
testing program:
     Part 119 certificate holders authorized to conduct part 
121 operations.
     Part 119 certificate holders authorized to conduct part 
135 operations.

[[Page 42000]]

     Commercial air tour operators as defined in Sec.  91.147.
    These requirements are meant to ensure that any person who performs 
safety-sensitive functions for these operators, either directly or by 
contract (including subcontractor at any tier), is subject to drug and 
alcohol testing.
    Under the current rules, operators who are conducting a part 121 or 
part 135 operation and commercial air tour operations must administer 
separate drug and alcohol testing programs. Numerous operators have 
petitioned the FAA for an exemption from the requirement to maintain 
two separate drug and alcohol testing programs because having two 
programs often requires testing the same employees twice. This 
duplication adds administrative and financial burdens for the operator 
but it does not increase safety.
    Since 2008, the FAA has granted approximately 135 exemptions 
allowing operators to implement a single testing program. Given the 
large number of exemptions that the Agency has granted, and the need to 
renew them every two years, 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 part 135 
operation and its 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 commercial 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. Any existing exemptions for 
combined testing programs held by part 121 or part 135 operators that 
also conduct Sec.  91.147 operations will expire on the effective date 
of this rule. Those certificate holders with current exemptions need 
not take any action to comply with the requirements outlined in this 
rule.

III. Discussion of Public Comments

    On July 2, 2012, the FAA published a Notice of Proposed Rulemaking 
(NPRM) (77 FR 39194), entitled ``Combined Drug and Alcohol Testing 
Programs.'' The comment period for the NPRM closed on August 31, 2012. 
The FAA received four comments to the NPRM. The National Air 
Transportation Association expressed its support for the proposed rule, 
noting that the rule would reduce costs and ease administrative burdens 
without compromising safety.
    One individual suggested that combining the two testing programs 
should be a requirement rather than an option. The FAA believes that 
most operators will take advantage of the option to reduce the amount 
of work and cost involved in administering duplicate testing. 
Regardless of how many operators take advantage of this option, 
however, it would not be appropriate to require it. While combining 
programs may have financial and administrative benefits, it has no 
safety benefit.
    The Drug and Alcohol Testing Industry Association (DATIA) commented 
in support of this rule and requested that the FAA address how 
operators can make the transition from two programs to one and how 
Management Information System (MIS) information should be reported 
after combining the programs. The FAA will post instructional 
information in a separate document on its Drug Abatement Web site 
(http://www.faa.gov/go/drugabatement) for part 119 certificate holders 
operating part 121 or part 135 operations and Sec.  91.147 operations 
to describe what must be done when first seeking to combine programs. 
The first step is for the part 121 or part 135 operator to advise the 
Principal Operations Inspector (POI) that one program will be 
implemented for both the part 121 or part 135 operation and the Sec.  
91.147 operation. The POI will annotate the Sec.  91.147 operator's 
records (Letter of Authorization (LOA)) with an ``A3'' and the part 121 
or part 135 certificate number to indicate that the programs are 
combined. The operator must then give the same notification to the 
FAA's Drug Abatement Division. Once a single testing program is 
established, the part 121 or part 135 operation must submit a single 
MIS report. The FAA wishes to emphasize that an operator currently 
holding an exemption to conduct one combined drug and alcohol testing 
program is not required to take any action to continue administering 
its combined testing program.
    Another comment was received from the Aircraft Owners and Pilots 
Association (AOPA) regarding the proposal that, under a combined 
testing program, the FAA would take enforcement action for 
noncompliance against the part 121 or part 135 operation, even if the 
pilot whose testing is in question is only used for Sec.  91.147 
commercial air tour operations. The AOPA maintains that the FAA should 
be able to discern which operation was responsible for the infraction 
and adjust the enforcement action accordingly. The FAA, however, 
assesses penalties against the employer, not the type of operation. 
Under this rule, once the two programs have been combined, they become 
one program. So, for example, when a part 121 operator fails to give a 
pre-employment drug test to a pilot who conducts part 121 and air tour 
flights, the part 121 operator has responsibility for the error. 
Therefore, any civil penalties for regulatory violations are assessed 
at the part 121 or part 135 operator level. This is consistent with 
existing exemptions allowing part 119 certificate holders to combine 
their part 121 or part 135 operation's testing program with their Sec.  
91.147 commercial air tour operation's testing program.
    Additionally, AOPA commented that the proposed language for 
clarifying the consequence of on-duty alcohol use was still not 
completely clear and suggested alternate language. The FAA agrees with 
AOPA's comment and has adopted its suggested language for Sec.  
120.221(b).

IV. Discussion of Other Provisions in the Final Rule

    The NPRM proposed provisions identical to those codified here with 
the exception that the wording of a few sections have been revised to 
make their meaning clearer. The headings of Sec. Sec.  120.117(e) and 
120.225(e) have been changed along with the regulatory language to 
clarify that the procedure for registering a drug and alcohol testing 
program for a Sec.  91.147 commercial air tour operator is similar to 
the procedure used to obtain a drug and alcohol testing program 
operations specification for a part 121 or part 135 operator. 
Specifically, the revised rule requires the commercial air tour 
operator to submit certain information to the local FSDO instead of the 
Drug Abatement Division. In addition, paragraph (f) of both Sec. Sec.  
120.117 and 120.225 have been changed slightly to clarify that the 
paragraphs apply to employers who are not certificated air carriers or 
commercial air tour operators. Also, the wording of Sec.  120.221 has 
been revised. The meaning and intent of Sec.  120.221 have not changed 
from what was originally proposed.
    This rule amends 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.
    This rule also clarifies the requirement for registering a drug and

[[Page 42001]]

alcohol program for a Sec.  91.147 commercial air tour operator by 
aligning that requirement with the requirements for obtaining a drug 
and alcohol program operations specification for a part 121 or part 135 
operator. Currently, Sec.  91.147 specifies that operators intending to 
begin commercial air tour operations must obtain a Letter of 
Authorization which includes an ``Antidrug and Alcohol Misuse 
Prevention Program registration.'' The current Sec. Sec.  120.117 and 
120.225, which contain the drug and alcohol testing requirements that 
apply to commercial air tour operations, refer to a need for operators 
intending to begin commercial air tours to ``register with the FAA.'' 
This rule changes Sec. Sec.  120.117(e) and 120.225(e) to clarify that 
operators obtaining a Letter of Authorization from their local FSDO are 
considered to have registered their drug and alcohol testing program by 
submitting certain information to the local FSDO. In addition, the 
language of Sec. Sec.  120.117(f) and 120.225(f) was changed slightly 
to indicate that it applies to contractors and repair stations, but not 
to certificated air carriers or commercial air tour operators. Also, 
the FAA has removed language in Sec.  120.117(e) and (f) and Sec.  
120.225(e) and (f) that referred to submitting information to the FSDO 
in duplicate. The FAA does not need the information to be submitted in 
duplicate.
    Other errors in the Agency's 2009 Drug and Alcohol Testing Program 
final rule were also brought to the FAA's attention. In Sec.  
120.221(b), references to Sec. Sec.  120.19(c) and 120.37(c) were 
inadvertently omitted. The omitted references point the reader to 
existing Sec. Sec.  120.19(c) and 120.37(c), which indicate that one 
occurrence of on-duty alcohol use carries the consequence of permanent 
disqualification from service. The FAA has corrected that error and has 
reorganized that paragraph for clarity.
    Additionally, when the FAA combined part 121 appendices I and J to 
form part 120, the FAA renumbered the requirements. This reorganization 
created some confusion in Sec.  120.115, which contains the requirement 
that employers must include documentation of the training given to both 
supervisors and employees in their employee assistance programs. When 
moving these requirements from appendix I to the subpart in part 120, 
not only did the FAA need to assign new section numbers to the 
requirements but the FAA also needed to list the details of those 
requirements under separate line numbers. Requirements that had been 
previously stated in one paragraph were now broken into separate lines. 
For Sec.  120.115, the requirements were ultimately numbered in such a 
way that it appeared that employers needed only to retain employee 
training records. The FAA is reordering the wording to make it clear 
that supervisory training must be documented as well. It was never the 
FAA's intention to change this requirement.
    Finally, in 2004, the FAA discontinued the practice of approving 
drug and alcohol testing programs. That language was never removed from 
the Code of Federal Regulations. This rule amends Sec.  120.115 to 
remove ``submitted to the FAA for approval.''

V. Regulatory Notices and Analyses

    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 final rule.
    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 final rule. The reasoning 
for this determination follows:
    (1) The final rule is voluntary. The final rule does not impose new 
regulatory requirements or additional costs.
    (2) The final rule is not a ``significant regulatory action'' as 
defined in section 3(f) of Executive Order 12866;
    (3) The final rule will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act;
    (4) The final rule will not have a significant effect on 
international trade; and
    (5) The final rule will not impose an unfunded mandate on State, 
local, or tribal governments, or on the private sector, by exceeding 
the monetary threshold identified.
    (6) No comments were received on the economic portions of the NPRM 
during the public comment period.
These analyses are summarized below.
    Currently, part 121 operators or part 135 operators who also 
conduct air tour operations must have separate drug and alcohol testing 
programs for the air tour operations and their other (part 121 or part 
135) operations. The intended effect of this rulemaking is to decrease 
this duplicative drug and alcohol testing by eliminating the 
requirement for two testing programs while maintaining the level of 
safety required by the current drug and alcohol testing regulations. 
This may reduce operators' costs by allowing them to eliminate one 
testing program and its associated costs. This final rule will also 
reduce the FAA's costs by reducing the number of drug and alcohol 
testing programs that the FAA will have to inspect.
    In addition, this rulemaking allows the agency to clarify that air 
tour operators obtaining a Letter of Authorization from the local FSDO 
to conduct air tour operations are considered to have registered their 
drug and alcohol testing program by submitting certain information to 
the FSDO. This may reduce costs to the operators and the FAA by 
reducing the amount of time spent attempting to clarify requirements.
    Based on the above analyses, this final rule is considered to be a 
cost-relieving rule. For this reason, and because the FAA made a 
similar determination for the proposed rule and received no comment on 
this point, the FAA believes that the final rule will reduce costs with 
no loss of benefits. Thus this final rule is 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

[[Page 42002]]

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 final rule affects a 
large number of small entities.
    However, the final rule imposes no costs and may result in a cost 
reduction for an entity that should choose to use the final rule. No 
comments were received on the Regulatory Flexibility Section of the 
NPRM. Therefore, the FAA Administrator certifies that this final rule 
will not have a significant economic impact on a substantial number of 
small part 119 certificate holders that conduct part 121 operations or 
part 135 operations and commercial air tour operations under Sec.  
91.147.

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. No comments 
were received on this section in the NPRM during the public comment 
period. The FAA has assessed the potential effect of this final rule 
and has determined that it will have little or 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. No comments on this section in the NPRM were received 
during the public comment period. This final 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. The FAA has determined that 
there is no new information collection associated with allowing 
operators to combine drug and alcohol testing programs.

International Compatibility and Cooperation

    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 regulations.

Executive Order 13609, Promoting International Regulatory Cooperation

    Executive Order 13609, Promoting International Regulatory 
Cooperation, (77 FR 26413, May 4, 2012) promotes international 
regulatory cooperation to meet shared challenges involving health, 
safety, labor, security, environmental, and other issues and to reduce, 
eliminate, or prevent unnecessary differences in regulatory 
requirements. The FAA has analyzed this action under the policies and 
agency responsibilities of Executive Order 13609, and has determined 
that this action would have no effect on international regulatory 
cooperation.

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 312d and involves no extraordinary 
circumstances.

VI. Executive Order Determinations

A. Executive Order 13132, Federalism

    The FAA has analyzed this final rule under the principles and 
criteria of Executive Order 13132, Federalism. The agency 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.

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

    The FAA analyzed this final rule under Executive Order 13211, 
Actions Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use (May 18, 2001). The

[[Page 42003]]

agency has determined that it is not a ``significant energy action'' 
under the executive order and it is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy.

VII. How To Obtain Additional Information

A. Rulemaking Documents

    An electronic copy of a rulemaking document may be obtained by 
using the Internet--
    1. Search the Federal eRulemaking Portal at http://www.regulations.gov;
    2. Visit the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies/ or
    3. Access the Government Printing Office's Federal Digital System 
Web page at http://www.gpo.gov/fdsys/.
    Copies may also be obtained by sending a request (identified by 
notice, amendment, or docket number of this rulemaking) to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue SW., Washington, DC 20591, or by calling (202) 267-9680.

B. Comments Submitted to the Docket

    Comments received may be viewed by going to http://www.regulations.gov and following the online instructions to search the 
docket number for this action. Anyone is able to search the electronic 
form of all comments received into any of the FAA's 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.).

C. Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires FAA to comply with small entity requests for information 
or advice about compliance with statutes and regulations within its 
jurisdiction. A small entity with questions regarding this document may 
contact its local FAA official, or the person listed under the FOR 
FURTHER INFORMATION CONTACT heading at the beginning of the preamble. 
To find out more about SBREFA on the Internet, visit http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

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 Amendment

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

PART 120--DRUG AND ALCOHOL TESTING PROGRAM

0
1. The authority citation for part 120 is revised to read as follows:

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

0
2. Amend Sec.  120.115 as follows:
0
a. Redesignate paragraphs (c)(1)(iii) and (c)(5) as paragraphs (c)(5) 
and (c)(6) respectively.
0
b. Revise newly redesignated paragraphs (c)(5) and (c)(6).
    The revisions read as follows:


Sec.  120.115  Employee Assistance Program (EAP).

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

0
3. Amend Sec.  120.117 as follows:
0
a. Revise paragraphs (a) and (b);
0
b. Redesignate paragraph (e) as paragraph (f);
0
c. Add new paragraph (e);
0
d. Revise newly redesignated paragraph (f).
    The additions and revisions read as follows:


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


[[Page 42004]]

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

* * * * *
    (e) Register your Drug and Alcohol Testing Program by obtaining a 
Letter of Authorization from the FAA in accordance with Sec.  91.147. 
(1) A drug and alcohol testing program is considered registered when 
the following information is submitted 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 or your employees 
perform (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.
    (3) Update the Letter of Authorization information as changes 
occur. Send the updates 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 parts 121 or 135 and intend to begin operations as 
defined in Sec.  91.147 of this chapter, you must also advise 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) Except as provided in paragraphs (d) and (e) of this 
section, to obtain a Drug and Alcohol Testing Program Registration from 
the FAA, you must submit 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 or your employees 
perform (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 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 to the address specified in paragraph (f)(2) of this section.

0
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. (1) An employee who 
violates Sec. Sec.  120.19(c) or 120.37(c) is permanently precluded 
from performing for an employer the safety-sensitive duties the

[[Page 42005]]

employee performed before such violation.
    (2) An employee 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.
* * * * *

0
5. Amend Sec.  120.225 as follows:
0
a. Revise paragraphs (a) and (b);
0
b. Redesignate paragraph (e) as paragraph (f);
0
c. Add new paragraph (e);
0
d. Revise newly redesignated paragraph (f).
    The additions and revisions read as follows:


Sec.  120.225  Implementing 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 with   Obtain an Antidrug and Alcohol
 authority to operate under part 121 or   Misuse Prevention Program
 135.                                     Operations Specification by
                                          contacting your FAA Principal
                                          Operations Inspector.
(2) An operator as defined in Sec.       Obtain a Letter of
 91.147 of this chapter.                  Authorization by contacting
                                          the Flight Standards District
                                          Office nearest to your
                                          principal place of business.
(3) A part 119 certificate holder with   Complete the requirements in
 authority to operate under part 121 or   paragraphs 1 and 2 of this
 part 135 and an operator as defined in   chart and advise the Flight
 Sec.   91.147 of this chapter.           Standards District Office and
                                          Drug Abatement Division that
                                          the Sec.   91.147 operation
                                          will be included under the
                                          part 119 testing program.
                                          Contact Drug Abatement
                                          Division at FAA, Office of
                                          Aerospace Medicine, Drug
                                          Abatement Division (AAM-800),
                                          800 Independence Avenue SW.,
                                          Washington, DC 20591.
(4) An air traffic control facility not  Register with the FAA, Office
 operated by the FAA or by or under       of Aerospace Medicine, Drug
 contract to the U.S. Military.           Abatement Division (AAM-800),
                                          800 Independence Avenue SW.,
                                          Washington, DC 20591.
(5) A part 145 certificate holder who    Obtain an Antidrug and Alcohol
 has your own alcohol testing program.    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.
(6) A contractor who has your own        Register with the FAA, Office
 alcohol testing program.                 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.
------------------------------------------------------------------------

    (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 part 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 duties must be tested in accordance with this 
subpart. The chart follows:

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

* * * * *
    (e) Register your Drug and Alcohol Testing Program by obtaining a 
Letter of Authorization from the FAA in accordance with Sec.  91.147. 
(1) A drug

[[Page 42006]]

and alcohol testing program is considered registered when the following 
information is submitted 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 or your employees 
perform (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 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 part 135 and intend to begin operations as 
defined in Sec.  91.147 of this chapter, you must also advise 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) Except as provided in paragraphs (d) and (e) of this 
section, to obtain a Drug and Alcohol Testing Program Registration from 
the FAA you must submit 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 or your employees 
perform (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 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 to the address specified in paragraph (f)(2) of this section.

    Issued under authority provided by 49 U.S.C. 106(f) and 45102 in 
Washington, DC, on July 1, 2013.
Michael P. Huerta,
Administrator.
[FR Doc. 2013-16852 Filed 7-12-13; 8:45 am]
BILLING CODE 4910-13-P