[Federal Register Volume 76, Number 45 (Tuesday, March 8, 2011)]
[Rules and Regulations]
[Pages 12559-12563]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-5257]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 121
[Docket No.: FAA-2002-11301; Amendment No. 121-315A]
RIN 2120-AH14
Antidrug and Alcohol Misuse Prevention Programs for Personnel
Engaged in Specified Aviation Activities; Supplemental Regulatory
Flexibility Determination
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule; supplemental regulatory flexibility determination.
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SUMMARY: This document announces the completion and availability of a
supplemental regulatory flexibility determination for a previously
published final rule. That final rule amended the FAA regulations
governing drug and alcohol testing to clarify that each person who
performs a safety-sensitive function for a regulated employer by
contract, including bysubcontract at any tier, is subject to testing.
DATES: Submit comments on or before May 9, 2011.
ADDRESSES: Send comments identified by docket number 2002-11301 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 dockets, 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 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: Nicole Nance, Office of Aviation
Policy and Plans, APO-300, Federal Aviation Administration, 800
Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-
3311; e-mail [email protected]. For legal questions concerning this
document, contact Anne Bechdolt, Regulations Division, AGC-220, Office
of the Chief Counsel, Federal Aviation Administration, 800 Independence
Avenue, SW., Washington, DC 20591; telephone (202) 267-7230; e-mail
[email protected].
SUPPLEMENTARY INFORMATION:
Background
On February 28, 2002, the FAA issued a notice of proposed
rulemaking seeking to revise the drug and alcohol testing regulations
by amending the definition of employee (67 FR. 9366, 9377, Feb. 28,
2002). The FAA action addressed those individuals performing safety-
sensitive functions under contract who may not have been subject to
testing under the drug and alcohol testing regulations established in
1988 and 1994, respectively. Upon review of comments, the FAA, in 2004,
issued a supplemental notice of proposed rulemaking to seek comment
regarding how small entities would be impacted by this rule (69 FR
27980, May 17, 2004). From the comments received the FAA believed that
the rule would not have a significant impact on a substantial number of
small entities.
On January 10, 2006, the FAA issued the final rule (71 FR 1666).
This rule requires that each person who performs a safety-sensitive
aviation function directly for an employer is subject to testing and
that each person who performs a safety-sensitive function at any tier
of a contract for that employer is also subject to testing. This
requirement includes contractors and subcontractors. Contracting
companies have two testing options: Option one is for the contracting
company to obtain and implement its own FAA drug and alcohol (D&A)
testing programs. Under this option, the company would subject the
individuals to testing. The other option is for the regulated employer
to maintain its own testing programs and subject the individual to
testing under these programs. To establish a D&A program a company
would need to develop and maintain testing, training, and annual
reporting requirements.
To comply with the Regulatory Flexibility Analysis (RFA), and to
evaluate the impact on small businesses, the FAA described and
estimated the number of affected businesses and estimated the economic
impact. In the final regulatory flexibility analysis the FAA estimated
that the costs were minimal, and that contractors would absorb some of
these costs. In order to estimate the maximum impact of this regulation
on regulated entities the FAA assumed that all of the additional cost
would be passed along to regulated employers. Since costs were minimal,
the FAA again certified that the rule would not have a significant
economic impact on a substantial number of small entities. 71 FR 1666,
1674 (Jan. 10, 2006)
The Aeronautical Repair Station Association, Inc., (ARSA) and other
affected businesses challenged the final rule on several grounds,
including the FAA's compliance with the Regulatory Flexibility Act. The
entities argued that contractors and subcontractors were directly
affected by the final rule, and in failing to consider them in the
final
[[Page 12560]]
regulatory flexibility analysis, the FAA failed to comply with the RFA.
Upon review, the U.S. Court of Appeals for the District of Columbia
upheld ``the substance of the 2006 final rule'' and remanded ``for the
limited purpose of conducting the analysis required under the RFA,
treating the contractors and subcontractors as regulated entities.''
The Court found that contractors and subcontractors were directly
affected by the final rule and that the FAA failed to comply with the
RFA by not considering them in the analysis. To comply with the Court's
ruling, the FAA has extended the regulatory flexibility analysis to
include contractors and subcontractors as discussed below.
The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA)
establishes ``as a principle of regulatory issuance that agencies shall
endeavor, consistent with the objectives 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 this principle, the RFA requires
agencies to solicit and consider flexible regulatory proposals and to
explain the rationale for their actions to assure that such proposals
are given serious consideration.'' 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 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 RFA.
However, if an agency determines that a rule is not expected to have a
significant economic impact on a substantial number of small entities,
section 605(b) of the 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.
Discussion
The Small Business Administration (SBA) has established small
business size standards pursuant to the Small Business Act (Act) (Pub.
L. 85-236, as amended) and related legislative guidelines. Using the
NAICS (North American Industrial Classification System)
classifications, the SBA classifies ``small'' businesses based on their
employment or annual revenue. For this rule, part 145 certificated
repair stations and their subcontractors are considered small
businesses as defined by this definition. Repair stations are
classified as ``Other Support Activities for Air Transport'' (488190)
with small businesses defined as businesses with annual revenues of $7
million or less. Subcontractors, conversely, overlap several industries
and have multiple NAICS codes. The SBA and ARSA provided a list of 21
NAICS codes for suppliers, parts fabricators and metal finishers, among
others that may perform safety sensitive repairs and therefore would be
considered a subcontractor under the rule. For these NAICS codes the
definition of a small business ranges from 500 to 1,000 employees or
annual revenues of $7 million or less.
Based upon data compiled by the Transportation Security
Administration (TSA) for an aircraft repair station security rule, in
the RFA the FAA estimated the number of small business repair stations.
TSA used revenue and employment records from Dun & Bradstreet for
approximately 2,276 domestic repair stations.\1\ From this total they
identified 2,123 that reflect small businesses as defined by the SBA.
Their analysis indicates that most repair stations are small
businesses. Accepting the TSA percentage of small entities for domestic
repair stations and our internal data, the FAA has estimated that out
of 4,105 domestic U.S. certificated repair stations 3,829 are small
businesses with revenues of $7 million or less.
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\1\ Aircraft Repair Station Security (49 CFR part 1520 and
1554). Regulatory and Economic Analysis: Transportation Security
Administration Department of Homeland Security, October 15, 2009.
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After estimating the number of small entity repair stations, we now
focus on describing subcontractors impacted by this rule. In order to
provide a description of subcontractors, the FAA examined the submitted
list of 21 NAICS codes provided by the SBA and ARSA. There was some
duplication in the codes, reducing the actual number of codes to be
examined.
During the comment period ARSA not only provided a list of NAICS
codes, but they also conducted and provided information on a Non-
Certificated Maintenance Subcontractor (NCMS) Survey. Some of the
information from the survey proved to be useful in determining the
small business impact on subcontractors, particularly the responses to
questions 1 (number of employees), 2 (annual revenue), 3 (an existing
contract with a U.S. air carrier to perform maintenance), 4 (type of
work). These responses are used, in this analysis, to determine the
characteristics of these companies.
The FAA finds it appropriate to start with the responses to
question 4, which deals with the work-related functions of the
respondents, as a snapshot of some of the types of companies that need
to be included in this analysis. The FAA grouped the responses to
question 4 into the NAICS codes that both ARSA and the SBA provided and
the FAA was able to correlate 98 of the 134 survey respondents with
these codes; these 98 are shown in Table 1 below. While there are
discrepancies with regard to the count, we can validate 98 of the 134
responses. This shows the wide spectrum of businesses providing
contracting support.
Table 1--Survey Results--NAICS Codes and Work Functions
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Require D&A
Number of NCMS NAICS Code Work functions program?
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1.................. 313311 Fireproofing of Y
fabrics.
14................. 313320 Metallizing S
(including
plating).
9.................. 332322 Manufacturing N
airframe parts
(mostly sheet
metal).
Manufacturing per N
approved drawing
or data.
Manufacturing N
small parts; some
of which are used
by part 121
operators.
23................. 332710 Chemical milling S
(reduction of
weight).
Machining......... S
Machining and N
welding of ground
support parts for
planes.
Machining of S
turbine engine
components.
Machining; chrome S
plating; anodize;
metal finishing;
shot peening.
3.................. 332722 Manufacturer of N
miniature turned
parts. Screws and
like.
[[Page 12561]]
2.................. 332811 Heat treating..... Y
1.................. 332812 Painting.......... Y
8.................. 332813 Chrome plating; S
nickel plating
(metal finishing).
Machining; chrome S
plating; anodize;
metal finishing;
shot peening.
Metal finishing S
(grinding) (zinc
plating).
Plating; precision S
grinding; non-
destructive
testing.
3.................. 332999 Die-cut parts-- N
shims; washers;
gaskets; etc..
1.................. 334511 Rebuild electro- N
mechanical
switches for
aviation use.
1.................. 336412 Overhauling of Y
engine blocker
doors.
22................. 488190 Minor maintenance. Y
Maintenance on 135 Y
charter aircraft
line.
Overhauling of Y
engine blocker
doors.
5.................. 541380 Calibration and N
repair of test
and measuring
equipment.
Hydrostatic N
testing.
Inspection........ N
Machining & N
fabrication of
test fixtures &
equipment used in
repair processes.
Non-destructive N
testing.
1.................. 561740 Cleaning seat N
covers.
4.................. 811310 Machining and N
welding of ground
support parts for
planes.
Manufacturing & N
precision
grinding and
testing of
various fuel &
hydraulic/
pneumatic valve
assemblies.
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Table 1 also indicates whether a specific function would require a
D&A program. The last column is either marked with ``Y'' meaning yes,
``N'' meaning no, and ``S'' meaning some in this grouping might need
such a program, as this work function conceivably could mandate such a
program. Companies that have work that is strictly manufacturing will
not be required to comply with the D&A testing rules. Several companies
mentioned in their survey responses that they do not perform
maintenance, and would not be included among companies required to set
up and implement D&A testing. For example, the 14 companies
characterized as 313320, which involves metal finishing including
plating, may need to conduct D&A testing if some of the work they
perform is considered maintenance under 14 CFR part 43.
The responses to questions 1 and 2 address the number of employees
and the annual revenue reported by the surveyed companies. These
responses are helpful in establishing the type of impact that this
program will have on these companies. Question 1 asked ``How many
employees does your company have?'' Table 2 summarizes the responses
provided by the ARSA survey. All but two of the responses are in the
category of 750 or below. The two responses for ``1501+'' are outliers
and, for computational purposes, can be ignored. Approximately 75% of
the respondents stated that they employed between 1 and 50 employees,
indicating that the majority of subcontracting companies are small
entities.
Table 2--Survey Results--Employees by Company
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Response Count Percent
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1 to 10............................................. 43 32.09
11 to 50............................................ 58 43.28
51 to 100........................................... 10 7.46
101 to 500.......................................... 18 13.43
501 to 750.......................................... 3 2.24
751 to 1000......................................... 0 0.00
1001 to 1500........................................ 0 0.00
1501+............................................... 2 1.49
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Total........................................... 134 100.00
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Question 2 of the survey asked about the company's annual revenues;
Table 3 summarizes the survey responses:
Table 3--Survey Results--Annual Revenue by Company
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Response Count Percent
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Under $750,000...................................... 43 32.09
$750,000 to $1 million.............................. 14 10.45
$1 million to $2 million............................ 20 14.93
$2 million to $6 million............................ 24 17.91
$6 million to $10.5 million......................... 8 5.97
$10.5 million to $21.5 million...................... 7 5.22
$21.5 million to $25 million........................ 1 0.75
$25 million to $30 million.......................... 4 2.99
More than $30 million............................... 13 9.70
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Total............................................. 134 100.00
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Most of these companies reported average annual revenue of $7
million or less.
As noted above, ARSA did a survey and 134 members responded; the
FAA believes that this is only a fraction of the total number of NCMS.
As mentioned above, a small business is defined as having either 1,000
employees or less, or having revenue of $7 million or less, depending
on the NAICS code. The majority of the companies in the ARSA survey are
small entities which leads the FAA to believe that a substantial number
of subcontractors will be small entities impacted by this rule.
The next step is to estimate the economic impact. The FAA rule
requires small businesses to administer random drug tests to those
employees who perform safety-sensitive functions. For a high cost
estimate, the FAA based costs on subcontractors initiating and then
implementing their own programs. It is important to note that these
costs are much higher than when repair stations or contractors at
higher tiers absorb some of the cost of D&A testing for the smaller
firms. Moreover, most repair stations have drug and alcohol programs
and therefore would not experience a cost burden based on the
amendments to this rule. However, to estimate the maximum impact of
this regulation on regulated employers, the FAA assumes that all of the
additional cost for D&A testing is absorbed by each NCMS. The costs
include: (1) Testing, (2) training and education, (3) program
development and maintenance, and (4) annual documentation. The
assumptions and calculations are described below:
[[Page 12562]]
General Cost and Salary Assumptions
Maintenance supervisor salary--$39.68/hour
Maintenance employee salary--$33.07/hour
Blended Wage \2\--$33.84
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\2\ Two of the costs described below, testing costs and employee
training costs, involve all employees, both supervisors and non-
supervisors. For these two sets of calculations, the FAA uses a
weighted wage rate from the maintenance supervisor and maintenance
employee salary that is applicable to all employees.
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Instructor salary--$36.37/hour
1 Supervisor for every 8 employees
1 Instructor for every 20 employees
Testing Cost
Drug and alcohol tests are required periodically for all employees
performing safety sensitive functions. The test costs approximately $45
or $35, respectively. The test includes specimen collection, laboratory
processing, and MRO (medical review officer) verification. Testing
takes place during an employee's shift. This is time not worked but
still paid by the company and is included as part of the testing cost.
Previously, the FAA estimated that the testing process would take 45
minutes, but because of industry comments the FAA has adopted a 2 hour
testing window for this analysis. The total cost of testing is
calculated by adding the 2 hour blended wage paid to the employee to
the cost of the test. The total cost of testing sums to $113 per
employee for a drug test and $102 per employee for an alcohol test.
Training and Education
Training costs are a combination of supervisor and employee
training costs, plus the cost to establish and maintain a training
program. For both the antidrug and alcohol misuse prevention programs,
the employer will train supervisors to make reasonable cause/suspicion
determinations. In addition, supervisors and employees will receive
training on the effects and consequences of drug use on personal
health, safety, and work environment, as well as the manifestations and
behavioral cues that may indicate drug use and abuse. For supervisors,
this training is initially estimated to take an hour and a half,
followed by a recommended annual hourly refresher course. Employee
training will also be given annually for approximately an hour.
Training costs include the cost of the instructor at $84 per supervisor
and $70 per employee.
Companies must also establish an education program that includes
informational material, videos, etc. Per employee, these costs average
$65 per person. Summing all of these together gives an estimated total
education and training cost of either $149 per supervisor or $135 per
employee per year.
Program Development and Maintenance
Each subcontractor will have to devote resources to developing an
antidrug and alcohol misuse prevention testing program. In addition,
each of these subcontractors will have to spend time to produce
information required for their registration and submit it to the FAA.
At the FAA, this information will have to be processed, and entered
into the appropriate database. The FAA estimates that development and
maintenance of a drug and alcohol program would each require a minimum
of 16 administrative hours per program at $21 per hour for a total of
$336 per company per year.
Annual Documentation
Each subcontractor has to periodically submit documentation. They
will be required to report or submit the following documents; Training
records, reasonable suspicion cases of drug and alcohol misuse, a
positive drug or alcohol test, an employee's refusal to submit to a
drug or alcohol test, post-accident alcohol tests, and, if a post-
accident alcohol test is not promptly administered, documentation
stating the reasoning behind the delay. The FAA estimates that it will
cost $1.29 to report each training record, to document each reasonable
suspicious case, or to submit every rationale behind tests not being
promptly administered. Notification of a positive drug or alcohol test
or an employee's refusal to be tested is estimated to take .25
administrative hours at an hourly rate of $21 at roughly $5 per
notification. The FAA projects that these documents will be submitted
annually, but each company on average only submits a certain number of
reports. Using this average, documentation cost is estimated at $50 per
company for the first year and $4.50 per company for subsequent years.
We estimate that the typical subcontracting company has 25
employees. This number comes from Table 2 above, where 75% of the
respondents have fewer than 50 employees. Several of the costs are
variable costs and are dependent on the number of employees; testing
costs, supervisor training, and employee training. For testing and
training costs, the FAA multiplied the cost per employee by the average
number of employees. For a small subcontracting company with 25
employees we estimate $2,825 for drug tests, $2,550 for alcohol tests,
and $3,417 for training. Adding these numbers to per company cost of
program development and maintenance and annual documentation costs
gives the average cost per-company of $6,628 or $6,353 for drug testing
and alcohol testing, respectively. Detailed calculations are done
below. This value can be compared to annual revenues to determine the
impact on companies with 25 employees. Using the survey results from
Table 2 and 3 above, we believe that a subcontracting company with 25
employees will have annual revenues of $750,000 to $2 million. For a
company with $750,000 to $2 million in annual revenue estimated costs
of $12,981 is less than 2% of their annual revenue. From this example
we conclude that even for firms with revenues less than $750,000 per
year, if we underestimated the compliance cost by more than 10%, the
compliance cost is still less than 2% of their annual revenue. Since
most of the costs are employee driven the compliance cost will be less
than 2% of annual revenue for all companies.
From this the FAA asserts that although there are a substantial
number of small businesses the economic impact is minimal.
Cost for Firms With 25 Employees and Annual Revenue of $750,000 to $2
Million
Cost of Drug Testing Program
$113 Testing Cost x 25 Employees = $2,825
$149 Supervisor Training x 3 Supervisors = $447
$135 Employee Training x 22 Employees = $2,970
$336 Program Development per Company
+$50 for Annual Documentation per Company
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Total Cost = $6,628 per Company
Cost of Alcohol Testing Program
$102 Testing Cost x 25 Employees = $2,550
$149 Supervisor Training x 3 Supervisors = $447
$135 Employee Training x 22 Employees = $2970
$336 Program Development per Company = $336
+$50 for Annual Documentation per Company
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Total Cost = $6,353 per Company
The FAA is aware that a substantial number of small entities must
comply with this rule; however, the percentage of cost to revenue is
less that 1 percent, therefore we believe that this rule does
[[Page 12563]]
not have a significant economic impact. Therefore the FAA preliminarily
certifies that this rule will not have a significant economic impact on
a substantial number of small entities.
The FAA solicits comments regarding this determination on this
supplemental regulatory flexibility analysis. Please provide detailed
economic analysis to support the position of higher cost. The FAA also
invites comments regarding other small entity concerns with respect to
the final rule.
Nan Shellabarger,
Director, Office of Aviation Policy and Plans.
[FR Doc. 2011-5257 Filed 3-7-11; 8:45 am]
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