On July 2, the FAA issued a notice of proposed rulemaking (NPRM) to revise certain provisions in its drug and alcohol (D&A) testing regulations; comments to the NPRM are due by August 31, 2012. The changes are primarily aimed at allowing Title 14 Code of Federal Regulations (14 CFR) part 121 and part 135 operators with commercial air tour operations the option of administering one D&A testing program for both operations.

As stated in the NPRM, the driving force is the fact that, between 2008 and 2010, the FAA granted approximately 50 exemptions allowing a single D&A testing program. Further, operators who conduct part 121 or 135 operations as well as air tour operations continue to petition the FAA for exemptions. To remedy the issue, the proposal would amend 14 CFR §§ 120.117 and 120.225 to give the option of including commercial air tour operation employees under § 91.147 in a combined D&A testing program.

In addition, the NPRM proposes several revisions intended to make “clarifying” or “correcting” changes in the current rules. Specifically, these revisions include:

• Clarifying that operators must obtain a letter of authorization from the local flight standards district office (FSDO) in order to conduct air tour operations under § 120.117 by aligning the wording with § 91.147 (currently, § 120.117 states that operators intending to begin commercial air tours must “register with the FAA” while the § 91.147 requirement is to “Obtain a Letter of Authorization”);

• Reorganizing existing text to alleviate 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);

• Amending § 120.115 to remove the practice of approving D&A testing plans (originally, antidrug and alcohol misuse prevention programs were submitted to the FAA drug abatement division for approval; the FAA states that it discontinued the practice in 2004 – around the time when repair stations obtained operations specifications paragraph A449 to certify compliance – but the language was never removed from the Code of Federal Regulations);

• Correcting the omission of a reference in § 120.221 indicating that on-duty use of alcohol is grounds for permanent disqualification from service (inadvertently left out of the May 2009 D&A testing program final rule that moved D&A testing regulations into part 120); and,

• Clarifying in § 120.115 that employers must include documentation of the training given to both supervisors and employees in their employee assistance programs (the requirements are currently numbered in such a way that it appears that employers need only retain employee training records).

As always, it is important to stay abreast of rule changes since, like in this instance, the agency may take the opportunity to include “ancillary” corrections or clarifications to the regulations involved (see all but the first bullet, above). The end result may therefore impact a wider audience than suggested by the title in the Federal Register. As the saying goes, you can’t always judge a book by its cover (or the potential effect of a proposed rule by its title).

~~~ posted 7/3/12 ~~~
~~~ updated 7/26/12 ~~~

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