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ARSA, Allies Push FAA to Withdraw D&A Rulemaking

On April 5, a group of seven aviation trade associations submitted joint comments to the FAA’s notice of proposed rulemaking to extend drug and alcohol testing requirements to repair station personnel located outside the United States. The submission responded to every element of the NPRM, providing some guidance for an alternative final rule but ultimately pushing the agency to withdraw the rulemaking.

“Notices of proposed rulemaking can be finalized by withdrawal of the regulation in its entirety,” the comments said. “The demands of this rulemaking cannot conform to the Administrative Procedure Act’s basic requirements that regulations have a rational basis. Requiring a foreign national to adhere to regulations that are not applied to U.S. citizens performing the same work in a foreign nation is irrational.”

The group explained that such a withdrawal would constitute a completed rulemaking as mandated by Congress. It would allow both the agency and industry to move on and focus on legitimate threats to aviation safety.

The comments highlighted a series of issues with the proposal. In particular:

(1) It requires international certificate holders or applicants to seek exemption whenever the laws of their country were contrary to U.S. requirements. Maintenance professionals do not have the tools or expertise to parse international law – governments do and should carry that responsibility. If done, this review should be performed at the time of certificate application and allow for a determination that a country’s existing drug and alcohol testing regime is sufficient to meet American standards.

(2) It dramatically underestimates the number of persons impacted because it fails to account for each employee performing a safety sensitive function at any tier in the chain of contractors. Many of these contractors could be completely unaware they become regulated persons when performing work for a repair station subject to U.S. rules.

(3) It unevenly imposes testing requirements on certain repair station personnel, but would not apply to U.S. citizens abroad working for other certificate holders nor would it impact anyone in Canada (by virtue of its reciprocal relationship with the United States).

“The rulemaking is misguided,” the comments conclude. “[The] preamble is clear—the requirement for U.S. anti-drug and alcohol programs and the testing protocol and procedures are not validated by any discernible safety concern. Therefore, the federal government must ensure the rules do not interfere with foreign commerce or mistreat national sovereignty.”

To read the complete comments, click here.

In addition to ARSA, the following organizations joined the comments:

Aerospace Industries Association
Air Transport Association of Canada
Aircraft Electronics Association
Aviation Suppliers Association
Modification and Replacement Parts Association
National Air Transportation Association

Previously updates on D&A rulemaking...

1/19/24 - FAA Extends Comment Period on D&A Testing Proposal

January 19, 2024

On Jan. 19, the FAA notified ARSA that the agency would extend the comment period on its proposed rule to impose drug and alcohol testing requirements on maintenance personnel located outside the United States. The new deadline to submit substantive comments is April 5.

ARSA will continue coordinating with its industry allies, notably the 14 other trade associations that supported a collective request made on Jan. 16 (see below) for more commenting time. Association members are encouraged to engage in two ways:

(1) Plan to submit substantive comments representing your company, particularly related to the costs of compliance for repair stations located outside the United States. Contact ARSA to share your insights and for guidance related to commenting (resulting discussion may impact the association’s analysis for its own commentary).

(2) As with the extension request, be ready to comment in support of the industry coalition’s eventual submission of substantive comments.

(3) Respond to the “quick question” collecting data about D&A testing practices at repair stations located outside the United States.

To review the extension request and see which organizations participated, click here.

For more information about the rulemaking, contact ARSA after reviewing the content below.

Quick Question – Foreign Drug and Alcohol Testing

1/16/24 - Support the Process for D&A Comments

January 16, 2024

On Jan. 16, ARSA and 14 other industry organizations requested an extension to the comment period on the FAA’s proposed rule to impose drug and alcohol testing requirements on maintenance personnel located outside the United States. The group, larger than the “Industry Coalition” organized by ARSA for the advanced notice of proposed rulemaking in 2014 and referenced in the NPRM, explained the additional time was necessary for collective coordination.

“The rulemaking was issued during the holiday season, which represents ‘down time’ for may companies and individuals but is actually a critically busy period for the very air carrier personnel – and their contractors – most closely impacted by the proposal,” the group’s request explained. “Allowing ample time for review and comment, particularly considering the 11 years already invested by the government and industry in the process, is in the public interest.”

ARSA Encourages its members to support the process in two ways:

(1) Add your own support for the extension by commenting. Click here to access the docket and submit your own comment, referencing Comment ID “FAA-2012-1058-0099” and encouraging the FAA to grant the additional time requested by the industry’s trade associations.

(2) Plan to submit substantive comments representing your company, particularly related to the costs of compliance for repair stations located outside the United States. Contact ARSA to share your insights and for guidance related to commenting.

To read the industry submission, click here.

ARSA was joined by the following organizations on the request:

Aerospace Industries Association
Air Transport Association of Canada
Aircraft Electronics Association
Airlines for America
Aviation Suppliers Association
Aviation Technician Education Council
Cargo Airline Association
Helicopter Association International
International Air Transport Association
Modification and Replacement Parts Association
National Air Carrier Association
National Air Transportation Association
National Business Aviation Association
Regional Airline Association

12/7/23 - FAA Releases Foreign D&A Testing Proposal

December 7, 2023

On Dec. 7, the FAA published its notice of proposed rulemaking (NPRM) “Drug and Alcohol Testing of Certificated Repair Station Employees Located Outside of the United States.”

Comments on the proposal are due on Feb. 5, 2024. ARSA’s team is reviewing the NPRM and planning for response, which will likely include a request for comment extension. During this time, the association encourages its members to review the agency’s proposal and also the industry’s past work regarding D&A testing requirements. To do so, review the content below and click the links at the bottom of this page to see a search of all relevant posts on ARSA.org.

To view the NPRM, click here.

8/15/23 - FAA Moving Towards D&A Testing Proposal

August 15, 2023

The FAA has delivered its proposed rule regarding foreign drug & alcohol testing programs to the White House Office of Information and Regulatory Affairs (OIRA). The text of the proposal will not be available until it is published in the Federal Register for public comment; there is no specific timeline this publication, but OIRA’s review is noteworthy as it represents the first substantive progress on the issue since 2014.

In that year, ARSA led a coalition of industry organizations on comments to the agency’s advanced notice of proposed rulemaking (ANPRM). The group implored the agency to respect national sovereignty by adhering to congressional language requiring any D&A testing rule be “consistent with the applicable laws” of the countries impacted. In addition to that legal limitation, the American imposition of testing requirements could damage bilateral aviation safety agreements (BASAs) and weaken the small businesses that are the industry’s backbone.

OIRA is a federal office established by Congress in the 1980 Paperwork Reduction Act. In addition to reviewing government collections of information from the public under the Paperwork Reduction Act, OIRA reviews draft proposed and final regulations under Executive Order 12866. The order requires an analysis of the costs and benefits of rules and, to the extent permitted by law, action only on the basis of a reasoned determination that the benefits justify the costs.

ARSA plans to engage the process and remain alert for the issuance of the notice of proposed rulemaking (NPRM). Members are encouraged to catch up on the process so far by reviewing the regulatory information provided by the Office of Management and Budget and reviewing ARSA’s updates below.

Drug and Alcohol Testing of Certain Maintenance Provider Employees Located Outside of the United States

This rulemaking would require controlled substance testing of some employees working in repair stations located outside the United States. The intended effect is to increase participation by companies outside of the United States in testing of employees who perform safety critical functions and testing standards similar to those used in the repair stations located in the United States.

10/11/22 - Seeking Simplicity and Flexibility in D&A Recordkeeping

October 11, 2022

On Oct. 4, ARSA commented on the Department of Transportation’s Advanced Notice of Proposed Rulemaking (ANPRM) “Electronic Signatures, Forms and Storage for Drug and Alcohol Testing Records.” DOT sought information – through a series of 11 questions – on how best to amend current regulations in 49 CFR part 40 to authorize electronic recordkeeping. As it often does, the association provided the agency with a regulatory-based rationale for minimizing changes to existing rules while allowing the broadest possible range of options for those seeking to comply.

“ARSA urges the government to minimize or eliminate any limitations on methods for handling required records,” the association said. “Instead, the regulations should continue to focus on the information that must be documented and set standards for confidentiality in handling that data while remaining agnostic about technical specifics.”

The comments referenced the sections of part 40 covering content and delivery of required reports as well as the subpart on confidentiality. Based on a plain reading of the current rule, ARSA encouraged DOT that “allowing” electronic recordkeeping is less about changing the regulations than it is about understanding what’s possible under them. In its specific responses to the agency’s questions, the association repeatedly explained how the government should stay out of the details of each service agent or employer’s recordkeeping system.

“Providing flexibility to both service agents and employers ensures each entity may best serve its own business and operational needs. Providing choice in selecting recordkeeping methods…limits the cost burden of compliance by allowing companies to fulfill regulatory obligations in whatever manner is most efficient for their business,” ARSA said while repeatedly pushing back on DOT’s interest in specific system elements like confidentiality, authentication, non-repudiation, and file access. “The rules should maintain [substantive] focus and not add unnecessary heft for the sake of addressing logistical matters.”

DOT has begun the rulemaking process under congressional mandate that includes a February 2025 deadline. The executive branch often allows such timelines to lag and regulatory review can be an incredibly deliberate process. With at least a notice of proposed rulemaking (NPRM) and subsequent final rule publication still ahead, the agency has considerable work ahead of it.

Stay tuned to ARSA for updates.

To read the association’s complete comments, click here.

To review previous actions related to D&A rulemakings, review the content below and click here to search the website for all updates.

To see ARSA’s training sessions on D&A programs for repair stations, click here.

12/23/14 - FAA Announces Plans to Release D&A Testing NPRM in 2015

December 23, 2014

On Dec. 22, the U.S. Department of Transportation released its semiannual regulatory agenda, which includes the FAA’s planned rulemaking activity for 2015.

Of particular importance to the aviation maintenance industry, the FAA anticipates releasing its congressionally-mandated foreign repair station drug and alcohol testing notice of proposed rulemaking (NPRM) in the next calendar year.  According to the unified agenda, the agency will analyze comments to the advanced notice of proposed rulemaking through February with anticipated NPRM release later in 2015.  ARSA organized aviation industry views and submitted its own detailed comments  before the July 17, 2014 deadline.

To learn more about ARSA’s activities on the proposed foreign repair station drug and alcohol rulemaking visit: http://arsa.org/?s=D%26A

7/17/14 - Aviation Maintenance: Global Justice Defenders

 

July 17, 2014

WASHINGTON – A coalition of aviation trade associations spoke out on behalf of the international maintenance, repair, and overhaul market. While the matter at hand was drug and alcohol testing at foreign aviation repair stations, what is really at stake is international sovereignty, the health of the global aeronautical business community, and the safety of the flying public worldwide.

The groups, led by the Aeronautical Repair Station Association (ARSA) and including the Aerospace Industries Association (AIA), Airlines for America (A4A), the Cargo Airline Association (CAA), the General Aviation Manufacturers Association (GAMA), International Air Transport Association (IATA), the National Air Carrier Association (NACA), and the Regional Airline Association (RAA) submitted comments regarding the Federal Aviation Administration’s (FAA) Advanced Notice of Proposed Rulemaking (ANPRM). The ANPRM is the first stage of a process that could impose testing requirements on aviation maintenance providers around the globe.

Aviation repair stations have a substantial economic impact on communities throughout the United States and the world, yet few travelers think of maintenance technicians as they sit on the runway. In reality, every passenger in every aircraft takes-off and lands safely because of the dedicated effort of the highly trained men and women who maintain and repair their aircraft.

“What we’re really doing is asking the FAA to remember that good safety is good business,” said Daniel Fisher, vice president of legislative affairs for ARSA. “This is a solution in search of a problem, not a good-faith effort to protect the public. In the end, this rule would impose costs on businesses, their customers, and passengers worldwide while producing no additional safety benefit.”

The industry implored the agency to respect national sovereignty by adhering to congressional language requiring any such rule be “consistent with the applicable laws” of the countries impacted.  However, this is more than a legal issue. The American imposition of testing requirements could damage bilateral aviation safety agreements (BASAs) and weaken the small businesses that are the industry’s backbone.

ARSA has also submitted its own detailed comments elaborating on congressional intent, national sovereignty issues, the importance of adhering to bilateral agreements, and protecting small businesses.

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ARSA is the only association devoted to the unique needs of the global civil aviation maintenance industry. We are dedicated to helping our member companies run their operations more efficiently and effectively, while continuing to ensure the safety of aircraft worldwide. To learn more about our dedicated work on behalf of both industry stakeholders and the flying public, please visit ARSA.org.

6/24/14 - Take Action: An International Voice on D&A Testing

June 24, 2014

The FAA’s Advanced Notice of Proposed Rulemaking (ANPRM) is the first stage of a process that could impose drug and alcohol (D&A) testing requirements on aviation maintenance providers around the globe. International stakeholders must be heard; ARSA will help find their voice.

Congress mandated that any foreign D&A testing requirement be “consistent with the applicable laws” of the country where the repair station is located. The ANPRM therefore requests information regarding international drug and alcohol testing rules; the association has developed a government comment template and an industry comment template to facilitate the international community’s response to that request.

The ARSA team encourages industry and government organizations to:

6/10/14 - ARSA’s Grand European Tour…In One Hour

June 10, 2014

On June 9, ARSA toured Europe to spread the word about the FAA’s Advanced Notice of Proposed Rulemaking (ANPRM) regarding drug and alcohol (D&A) testing at foreign part 145 certificated repair stations. Thanks to Washington’s centrality to international aviation issues, the team was able to “touch down” in multiple nations in one room.

ARSA’s D&A team briefed the International Aviation Assembly, a group of aviation-policy representatives from the embassies of 35 countries as well as delegates from EASA and the European Commission (EC), at the Royal Netherlands Embassy. The message was simple: international involvement in the ANPRM process is needed from both private industry and government organizations to prevent the imposition of burdensome final rule. In order to maintain respect for national sovereignty, protect the stability of international aviation agreements, and promote the growth of global business, the FAA needs to hear from the worldwide aviation community about the complexity and challenges of trying to mandate a “one size fits all” approach to drug and alcohol testing.

The ARSA team encouraged assembly members to:

  • Continue open dialogue regarding the development of any testing rule and use ARSA as a resource.
  • Work with their governments to determine applicable laws for drug and alcohol testing (may include transportation, workplace, or privacy laws, among others).
  • Submit comments to the docket: http://www.regulations.gov/#!documentDetail;D=FAA-2012-1058-0014.

To see ARSA’s work on D&A testing, click here.

To see all of ARSA’s work related to D&A testing requirements, click here.

To access the association’s training series on D&A testing requirements, visit arsa.org/da-training.



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