Drug and Alcohol Testing
Navigation…
Background | Resources | Toolkit (Coming Soon) | News
Background
Domestic U.S. Repair Stations
On Jan. 10, 2006, the Federal Aviation Administration (FAA) issued a final rule “to clarify” D&A testing regulations; henceforth “…each person who performs a safety-sensitive function for a regulated employer by contract, including by subcontract at any tier, [will be] subject to testing” (emphasis added). ARSA promptly challenged the mandate; in a July 17, 2007 decision, the U.S. Court of Appeals for the District of Columbia Circuit agreed the FAA violated the Regulatory Flexibility Act (RFA) by not properly considering the rule’s impact on small businesses (ARSA, et. Al. v. FAA, 494 F. 3d 161).
The Court ultimately upheld the D&A testing requirements but directed the FAA to conduct the proper RFA analysis. For more than three years, the FAA failed to make any effort to comply with the court’s ruling. On Feb. 17, 2011, ARSA filed a petition for a writ of mandamus to force the FAA into compliance and on March 1, 2011, the court sided with ARSA, giving the FAA until March 10 to perform the final regulatory flexibility analysis.
On March 8, 2011, the FAA published a supplemental regulatory flexibility determination (SRFD) in the Federal Register, which the court accepted in its April 13, 2011 order. While the association submitted comments challenging the FAA’s SRFD conclusion (arguing the FAA failed to use reliable and independently verifiable data as required by the RFA and the Data Quality Act), the FAA published its final regulatory flexibility determination on July 12, 2011.
Repair Stations Located Outside the United States
On Dec. 18, 2024, the FAA published a long-pending final rule expanding drug and alcohol testing requirements to safety sensitive aviation personnel at repair stations outside the United States.
The new rule was first mandated by Congress in the 2012 FAA Reauthorization Act at the insistence of labor unions. Despite no evidence of risk, the law demanded FAA implement the rule. Hypocritically, the agency didn’t see fit to extend drug and alcohol testing to U.S. airline mechanics, who leave the testing pool when working outside the United States.
The rule requires FAA certificated repair stations located outside the territory of the United States whose employees (including contractor employees) perform safety-sensitive maintenance functions on certain air carrier aircraft to implement drug and alcohol testing in a manner acceptable to the FAA and consistent with the laws of the country in which the repair station is located.
The final rule is substantially similar to the draft published in the notice of proposed rulemaking on Dec. 7, 2023. The most significant change adds a process by which a foreign government can apply for a waiver from the testing mandate for all safety sensitive employees in its territory. Impacted repair stations must comply by Dec. 20, 2027.
To whom does the new rule apply?
Under revised 14 CFR § 120.1(d), all part 145 certificate holders outside the territory of the United States who perform safety-sensitive maintenance functions on part 121 air carrier aircraft. The rule also covers “noncertificated contractors” of those repair station (see below).
The only exception is that 14 CFR § 120.5 and subparts E and F do not apply to part 145 certificate holders outside the territory of the United States that have obtained recognition pursuant to § 120.10 (see below).
What maintenance functions are covered?
The preamble states that, “The FAA considers all maintenance functions performed on part 121 air carrier aircraft to be safety sensitive under 14 CFR 120.105 and 120.215.” The agency declined to provide any additional clarification, although FAA’s definition of maintenance under 14 CFR 1.1 define the word to mean “inspection, overhaul, repair, preservation, and the replacement of parts, but excludes preventive maintenance.”
How are subcontractors of foreign repair stations impacted?
The requirement to set up a testing program only applies to certificated foreign repair stations whose employees perform safety sensitive work on part 121 air carrier aircraft, however certain contractor employees must still be tested. Although the preamble states that, “the mandate for testing does not extend to non-certificated contractors or subcontractors,” it also states, “if a foreign repair station decides to contract with another non-certificated maintenance provider to perform safety-sensitive aircraft maintenance functions on a part 121 air carrier aircraft, the certificated repair station must include the personnel performing aircraft maintenance functions in their testing program.” We believe that is meant to cover FAA-certificated foreign repair stations using locally certificated approved maintenance organizations as allowed under section 145.217.
What does the rule require?
A part 145 repair station located outside the territory of the U.S. must cover its employees performing maintenance functions on part 121 air carrier aircraft under its own testing program. The program must meet the requirements of the U.S. Department of Transportation drug and alcohol regulations at 49 CFR part 40 and the FAA regulations at 14 CFR part 120.
How is the rule supposed to work?
Each foreign repair station will be required to obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification (Op Spec A449) and provide drug and alcohol testing program management information system (MIS) data.
Affected foreign repair stations that receive a waiver based on recognition by the Administrator will be relieved from comprehensive compliance with subparts E and F of 14 CFR part 120 (and in turn, relieved from 49 CFR part 40), and thus, will not need to seek further waivers or exemptions from 14 CFR part 120 or 49 CFR part 40.
What if a foreign repair station cannot meet the requirements?
If a repair station cannot meet one or all requirements in 49 CFR part 40 (e.g., because the laws of the country where the repair station is located are inconsistent with the requirements), the repair station may apply for an exemption using the process described at 49 CFR § 40.7. Similarly, if a repair station cannot meet one or all requirements in 14 CFR part 120, it may apply for a waiver from the FAA in accordance with waiver authority established in the new rule.
The rule also allows foreign governments to apply for a waiver applicable to all FAA safety sensitive employees within the government’s territories recognizing existing requirements under the laws of the country as a compatible alternative that contains the minimum key elements of 14 CFR part 120.
If a foreign government chooses not to pursue this option, 14 CFR § 120.10 provides that an individual foreign repair station may request its own waiver based on recognition of an existing testing program that meets the key elements identified in the regulation.
What factors will the FAA consider in granting a waiver?
Under the new § 120.10(b), among other things, a request for recognition must demonstrate that the existing testing regime contains the following key elements of part 120:
(1) A testing protocol or established consequences to detect or deter, or both, employees who are responsible for safety-sensitive maintenance on part 121 air carrier aircraft from misusing alcohol and using drugs.
(2) An education or training program or materials that explain the impact and consequences of misusing alcohol and using drugs while performing safety-sensitive functions.
(3) A method to rehabilitate and ensure that safety-sensitive employees returning to work after a drug or alcohol test violation or consequence no longer misuse alcohol or use drugs.
How will does the new rule treat foreign repair stations in countries/jurisdictions that have bilateral maintenance agreements with the United States?
The rule is applicable to all foreign FAA repair stations, regardless of whether the country or political entity where it’s located has a bilateral aviation safety agreement with the United States.
In the rule’s preamble, the FAA specifically rejected a European Union-wide compliance option given differences in EU-member state employment and privacy laws. As such, each individual EU member state will be required to separately seek a waiver. “Because each country has its own individual laws and requirements that may impact its drug and alcohol testing programs, each foreign government is in the best position to know the laws imposed on their own citizens,” the preamble said.
The only country whose repair stations are excluded from the new testing requirements is Canada because the United States and Canada recognize each other’s certificates, the FAA does not certificate Canadian approved maintenance organizations.
The new regulatory language has been incorporated into part 120, subpart A. To see the final rule and related explanatory material as published in the Federal Register, click here.
The latest ARSA news regarding Drug and Alcohol Testing Requirements can be found by clicking here.
Resources
14 CFR part 120 — Drug and Alcohol Testing Program
49 CFR part 40 — Procedures for Transportation Workplace Drug and Alcohol Testing Programs.
FAA Office of Aviation Safety D&A Testing Program Website
COMING SOON – Toolkit
ARSA is developing a toolkit providing basic guidance to FAA certificated repair stations outside the United States and their governments about the FAA foreign repair station drug and alcohol (D&A) testing rule finalized in December 2024. The Toolkit explains how repair stations and their governments may request waivers and exemptions from the FAA and U.S. Department of Transportation (DOT) and identifies the regulatory requirements most likely to pose compliance challenges.
