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Proposed Rule2023-26394

Drug and Alcohol Testing of Certificated Repair Station Employees Located Outside of the United States

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Published

December 7, 2023

Issuing agencies

Transportation DepartmentFederal Aviation Administration

Abstract

This notice of proposed rulemaking (NPRM) would require certificated repair stations located outside the territory of the United States whose employees perform safety-sensitive maintenance functions on certain air carrier aircraft to obtain and implement a drug and alcohol testing program in accordance with the requirements of the Drug and Alcohol Testing Program published by the FAA and the Procedures for Transportation Workplace Drug Testing Programs published by the Department of Transportation.

Full Text

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<title>Federal Register, Volume 88 Issue 234 (Thursday, December 7, 2023)</title>
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[Federal Register Volume 88, Number 234 (Thursday, December 7, 2023)]
[Proposed Rules]
[Pages 85137-85155]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-26394]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 120

[Docket No. FAA-2012-1058; Notice No. 24-05]
RIN 2120-AK09

Drug and Alcohol Testing of Certificated Repair Station Employees
Located Outside of the United States

AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: This notice of proposed rulemaking (NPRM) would require
certificated repair stations located outside the territory of the
United States whose employees perform safety-sensitive maintenance
functions on certain air carrier aircraft to obtain and implement a
drug and alcohol testing program in accordance with the requirements of
the Drug and Alcohol Testing Program published by the FAA and the
Procedures for Transportation Workplace Drug Testing Programs published
by the Department of Transportation.

DATES: Send comments on or before February 5, 2024.

ADDRESSES: Send comments identified by docket number FAA-2012-1058
using any of the following methods:
<bullet> Federal eRulemaking Portal: Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and follow the online instructions for sending your
comments electronically.
<bullet> 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.
<bullet> 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.
<bullet> Fax: Fax comments to Docket Operations at 202-493-2251.
Docket: Background documents or comments received may be read at
<a href="https://www.regulations.gov">https://www.regulations.gov</a> at any time. Follow the online instructions
for accessing the docket or go to the 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: Nancy Rodriguez-Brown, Office of
Aerospace Medicine, Drug Abatement Division, Federal Aviation
Administration, 800 Independence Avenue SW, Washington, DC 20591;
telephone (202) 267-8442; email: <a href="/cdn-cgi/l/email-protection#690d1b1c0e080b081d0c040c071d290f0808470e061f"><span class="__cf_email__" data-cfemail="5b3f292e3c3a393a2f3e363e352f1b3d3a3a753c342d">[email&#160;protected]</span></a>.

SUPPLEMENTARY INFORMATION:

List of Abbreviations and Acronyms Frequently Used in This Document

BASA--Bilateral Aviation Safety Agreement
ICAO--International Civil Aviation Organization

Table of Contents

I. Overview of Proposed Rule
II. Authority for This Rulemaking
III. Background
A. History
B. Legislative and Rulemaking Actions
1. FAA Modernization and Reform Act of 2012
2. Advance Notice of Proposed Rulemaking and Comment Response
3. FAA Extension, Safety, and Security Act of 2016
IV. Discussion of the Proposal
A. Application of 14 CFR Part 120 and 49 CFR Parts 40 Through
145 Certificated Repair Stations Located Outside the Territory of
the United States (Sec. Sec. 120.1, 120.123, and 120.227)
B. Conforming Amendments To Facilitate Drug and Alcohol
Procedures Outside

[[Page 85138]]

the United States (Sec. Sec. 120.123 and 120.227)
C. Exemptions and Waivers to Drug and Alcohol Program
Requirements (Sec. Sec. 120.5 and 120.9)
D. Impact on International Agreements
V. Regulatory Notices and Analyses
A. Regulatory Evaluation
B. Regulatory Flexibility Determination
C. International Trade Impact Assessment
D. Unfunded Mandates Assessment
E. Paperwork Reduction Act
F. International Compatibility
G. Environmental Analysis
VI. Executive Order Determinations
A. Executive Order 13132, Federalism
B. Executive Order 13211, Regulations That Significantly Affect
Energy Supply, Distribution, or Use
C. Executive Order 13609, Promoting International Regulatory
Cooperation
VII. Additional Information
A. Comments Invited
B. Confidential Business Information
C. Electronic Access and Filing

I. Overview of Proposed Rule

This proposed rule, which the FAA is required by statute to
promulgate, would implement a statutory mandate to require certificated
part 145 repair stations located outside the territory of the United
States (U.S.) to ensure that employees who perform safety-sensitive
maintenance functions on part 121 air carrier aircraft are subject to a
drug and alcohol testing program, consistent with the applicable laws
of the country in which the repair station is located. This proposed
rule would require a part 145 repair station located outside the
territory of the U.S. to implement a drug and alcohol testing program
meeting the requirements of 49 CFR part 40 and 14 CFR part 120, which
must cover its employees who perform maintenance functions on part 121
air carrier aircraft. If a part 145 repair station cannot meet one or
all requirements in 49 CFR part 40 (e.g., the laws of the country where
the repair station is located are inconsistent with the regulations),
the part 145 repair station may apply for an exemption using the
process described in 49 CFR 40.7. Similarly, if a part 145 repair
station cannot meet one or all requirements in 14 CFR part 120, it may
apply for a waiver in accordance with proposed waiver authority. This
rulemaking would affect approximately 977 part 145 repair stations in
about 65 foreign countries.\1\
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\1\ These estimates are current as of April 2021 and sourced
from the National Vital Information Subsystem (NVIS). NVIS is a
subsystem of the Flight Standards Automation System, a comprehensive
information system used primarily by inspectors to record and
disseminate data associated with inspector activity and aviation
environment. While there are more current estimates (as of March
2023, the rule would affect approximately 962 part 145 repair
stations in about 66 foreign countries), the 2021 numbers are used
in the regulatory evaluation and Regulatory Impact Assessment to
estimate cost.
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It is the responsibility of the employer (e.g., the part 121
operator) to ensure that any person who performs safety-sensitive
functions (e.g., maintenance or preventive maintenance), directly or by
contract (including by subcontract at any tier), is subject to drug and
alcohol testing. The FAA notes that part 145 repair stations located
within the territory of the U.S. may elect to, but are not required to,
implement a drug and alcohol testing program under 14 CFR part 120.
When hiring by contract, if a part 145 domestic repair station does not
have a testing program of its own, the part 121 operator must cover the
repair station's safety-sensitive employees under its FAA drug and
alcohol testing program.\2\ In this scenario, for purposes of drug and
alcohol testing, the part 121 operator hires the repair station
employees as covered employees \3\ and must apply all the regulatory
requirements of the program to these employees (e.g., conduct a pre-
employment drug test, the records check, the training and educational
information distribution requirements, and include the individuals in
the random testing pool). Therefore, all employees performing a safety-
sensitive function within the U.S. are part of a drug and alcohol
testing program, whether it is the part 121 operator's program or the
repair station's program. As further discussed in this preamble, the
FAA does not propose any changes to its current drug and alcohol
testing requirements applicable to employees performing a safety-
sensitive function within the U.S. as part of this rulemaking. In
addition, the FAA invites comments, with supporting data, on whether
the drug and alcohol testing requirements in this proposed rule should
be extended to safety sensitive maintenance employees of part 121
certificate holders located outside the United States.
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\2\ 14 CFR 120.1(b), 120.105(e), 120.215(a)(5).
\3\ A covered employee is defined in Sec. 120.7(e) as an
individual who performs, either directly or by contract, a safety-
sensitive function listed in Sec. Sec. 120.105 and 120.215 for an
employer (as defined in Sec. 120.7(g)).
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II. Authority for This Rulemaking

The FAA's authority to issue rules on aviation safety is in title
49 of the United States Code (49 U.S.C.). 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. The FAA's authority to issue rules on alcohol and drug
testing is in 49 U.S.C. 45102, which directs the Administrator to
prescribe regulations that establish a program requiring air carriers
and foreign air carriers to conduct certain alcohol and controlled
substances testing.
This proposed rule is further promulgated under section 308 of the
FAA Modernization and Reform Act of 2012 (the Act), 49 U.S.C. 44733.
Specifically, 49 U.S.C. 44733(d)(2), titled ``Alcohol and Controlled
Substances Testing Program Requirements,'' requires the FAA to
``promulgate a proposed rule requiring that all part 145 repair station
employees responsible for safety-sensitive maintenance functions on
part 121 air carrier aircraft [be] subject to an alcohol and controlled
substances testing program determined acceptable by the [FAA]
Administrator and consistent with the applicable laws of the country in
which the repair station is located.'' Additionally, this proposed rule
is promulgated under section 2112 of the FAA Extension, Safety, and
Security Act of 2016, (the 2016 Act), which directed publication of a
notice of proposed rulemaking in accordance with 49 U.S.C. 44733. The
2016 Act also requires that the notice of proposed rulemaking be
finalized.

III. Background

A. History

The FAA and the Office of the Secretary of Transportation (OST)
have long engaged in a regulatory partnership regarding drug and
alcohol testing of persons in the aviation industry. The OST first
published its drug testing procedure regulations in 1988 to require
antidrug programs for certain transportation industries, including
aviation.\4\ In that interim final rule, the OST adopted a modification
of Department of Health and Human Services (HHS) guidance in new 49 CFR
part 40 to require employers to conduct drug testing in accordance with
the HHS's Mandatory Guidelines for Federal Workplace Programs.
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\4\ Interim Final Rule, Procedures for Transportation Workplace
Drug Testing Programs, 53 FR 47002 (Nov. 21, 1988).
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Simultaneously, the FAA published a final rule setting forth
regulations to certain entities to implement an anti-drug program for
employees who perform sensitive safety or security related
functions.\5\ These entities included: domestic and supplemental air
carriers, commercial operators of large aircraft, air taxi and commuter

[[Page 85139]]

operators, certain commercial operators, certain contractors to these
operators, and air traffic control facilities not operated by the FAA
or the U.S. military. Before this final rule, the FAA's regulatory
action pertaining to drug and alcohol use primarily focused not on
testing programs, but on restrictions on commercial aviation personnel
(e.g., regulations restricting crewmembers such as pilots, flight
attendants, flight engineers, and flight navigators from acting as a
crewmember within eight hours after drinking an alcoholic beverage,
regulations restricting use of any drug that affects faculties contrary
to safety \6\). The final rule required employers to comply with the
OST's newly adopted 49 CFR part 40, Procedures for Transportation
Workplace Drug Testing Programs (i.e., comply with the modified HHS
guidance). However, rather than following the OST structure, which
created a new part to promulgate the regulations, the FAA adopted a new
appendix within 14 CFR part 121 and required compliance through various
cross-references in 14 CFR parts 61, 63, 65, and 135.
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\5\ Final Rule, Anti-Drug Program for Personnel Engaged in
Specified Aviation Activities, 53 FR 47024 (Nov. 21, 1988).
\6\ 14 CFR 91.11 (1986).
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The 1988 FAA final rule applied only to domestic U.S. operators but
did not expressly exclude employees located outside the territory of
the U.S. from testing. In that final rule, the FAA considered the
impact that the regulations would have on foreign laws and policy.
Specific to foreign repair stations, individuals at foreign repair
stations under contract to U.S. certificate holders would not be able
to perform maintenance or preventive maintenance work on U.S.-
registered aircraft unless they participated in an anti-drug program.
However, as set forth by then-part 121, appendix I, section XII, the
rule would not be applicable in any situation where compliance would
violate the domestic laws or policies of another country. Additionally,
the section provided a longer effectivity date to aid the Department of
Transportation (DOT) and foreign governments in reaching permanent
resolutions to any identified conflict between the final rule and
foreign law.
The effectivity date for the final rule with respect to employees
located outside the territory of the U.S. was extended several
times,\7\ during which time Congress passed the Omnibus Transportation
Employee Testing Act of 1991 (OTETA).\8\ Section 3 of OTETA added sec.
614 to title VI of the Federal Aviation Act of 1958, which directed the
Administrator to prescribe regulations to establish a program that
requires both air carriers and foreign air carriers to conduct alcohol
and controlled substance testing for certain persons. OTETA specified
that the FAA should only establish requirements applicable to foreign
air carriers consistent with the international obligations of the U.S.
and take any laws and regulations of the foreign countries into
account.
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\7\ See Final Rule--Request for Comments, Anti-Drug Program for
Personnel Engaged in Specified Aviation Activities; 54 FR 15148
(Apr. 14, 1989); Final Rule--Extension of Compliance Date, Anti-Drug
Program for Personnel Engaged in Specified Aviation Activities, 54
FR 53282 (Dec. 27, 1989), Final Rule--Extension of Compliance Date,
Anti-Drug Program for Personnel Engaged in Specified Aviation
Activities, 56 FR 18978 (Apr. 24, 1991), Final Rule--Extension of
Compliance Date, Anti-Drug Program for Personnel Engaged in
Specified Aviation Activities, 57 FR 31275 (Jul. 14, 1992).
\8\ 105 Stat. 917, Public Law 102-143 (Oct. 28, 1991).
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Again, the OST and the FAA issued congruent final rules \9\ to
implement the legislation, as applicable. Consistent with the
legislation, the FAA final rule mandated that no employee located
solely outside the territory of the U.S. shall be tested for illegal
use of drugs under appendix I of part 121. An employer was required to
remove such employees from the random testing pool while the employee
solely performed functions in a foreign country, or while under
contract outside the territory of the U.S. Concurrently, the FAA
proposed and adopted appendix J within part 121 to supplement the
existing regulations concerning alcohol misuse to ensure coordination
between OST and FAA. The FAA had originally proposed \10\ that the
alcohol testing rule would apply to direct employees of U.S. air
carriers who performed safety-sensitive functions outside the U.S.,
subject to the laws and regulations of the country in which the testing
would occur; however, in response to comments, the FAA ultimately
decided not to require alcohol testing of any employees located outside
the territory of the U.S., mirroring the drug testing requirements.\11\
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\9\ DOT Final Rule, Procedures for Transportation Workplace Drug
and Alcohol Testing Programs, 59 FR 7340 (Feb. 15, 1994). FAA Final
Rule, Antidrug Program for Personnel Engaged in Specific Aviation
Activities, 59 FR 42922 (Aug. 19, 1994).
\10\ Notice of Proposed Rulemaking, Alcohol Misuse Prevention
Program for Personnel Engaged in Specified Aviation Activities, 57
FR 59458 (Dec. 15, 1992).
\11\ Final Rule, Alcohol Misuse Prevention Program for Personnel
Engaged in Specified Aviation Activities, 59 FR 7380 (Feb. 15,
1994).
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These drug and alcohol testing regulations remained static for
almost two decades, despite occasional proposed rulemaking that did not
come to fruition.\12\ These regulations were scattered throughout 14
CFR.\13\ Most recently, in 2009, the FAA concluded that it would be
best to streamline and clarify title 14 to pull the regulations
existing at that time into one location. Therefore, FAA adopted new
part 120 \14\ to set forth a better organizational structure for the
drug and alcohol testing program regulations, which is where it is
situated today. The FAA has engaged in additional rulemaking since that
time to harmonize 14 CFR part 120 with OST's amendments to 49 CFR part
40, as warranted (e.g., aligning prohibited drugs in 14 CFR part 120
with those in 49 CFR part 40 \15\).
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\12\ For example, in 1994, the FAA proposed to require foreign
air carriers operating in the U.S. to implement the same testing
required of domestic U.S. air carriers unless multilateral action
was taken by ICAO to support international standards (59 FR 7420).
However, in 1995, ICAO published the Manual on Prevention of
Problematic Use of Psychoactive Substances in the Aviation
Workplace, and the FAA subsequently withdrew this proposed rule in
2000 (65 FR 2079).
\13\ At that time, requirements for affected certificated airmen
were located in parts 61, 63, 65, and 67. Requirements for affected
air carriers and operators were located in parts 91, 121, and 135.
Requirements for affected air traffic control facilities and air
traffic controllers were located in subpart B of part 65.
Requirements for repair stations certificated under part 145 and
contractors who elected to have drug and alcohol testing programs
were located in appendices I and J of part 121.
\14\ Final Rule, Drug and Alcohol Testing Program, 74 FR 22649
(May 14, 2009). Certain inadvertent errors were corrected in a
subsequent final rule: Correction, Drug and Alcohol Testing Program,
75 FR 3153 (Jan. 20, 2010).
\15\ Final Rule, Conforming Amendments and Technical Corrections
to Department Rules Implementing the Transportation Drug Testing
Program).
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B. Legislative and Rulemaking Actions

1. FAA Modernization and Reform Act of 2012
In 2012, Congress passed the FAA Modernization and Reform Act of
2012.\16\ Section 308(d)(2) of the Act, implemented in 49 U.S.C. 44733,
requires that the FAA Administrator publish a proposed rule requiring
that all part 145 repair station employees responsible for safety-
sensitive maintenance functions on part 121 air carrier aircraft
outside the U.S. to be subject to an alcohol and controlled substances
testing program determined acceptable by the Administrator and
consistent with the applicable laws of the country in which the repair
station is located. 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.
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\16\ Public Law 112-95 (Feb. 14, 2012).

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[[Page 85140]]

2. Advance Notice of Proposed Rulemaking and Comment Response
In response to the congressional mandate, the FAA published an
advanced notice of proposed rulemaking (ANPRM) on March 17, 2014.\17\
The comment period for the ANPRM closed July 17, 2014. The FAA received
74 substantive comments of both support and opposition.
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\17\ Advanced Notice of Proposed Rulemaking, Drug and Alcohol
Testing of Certain Maintenance Provider Employees Located Outside of
the United States, 79 FR 14621 (Mar. 17, 2014).
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The FAA recognized that foreign countries and maintenance providers
would have many concerns regarding drug and alcohol testing of certain
maintenance personnel outside the territory of the U.S. Therefore, the
FAA chose to issue an ANPRM to seek comments from the public and
interested governments to help inform the development of a proposed
rule. Specifically, the FAA recognized and inquired about the
associated legal, practical, and cultural issues related to drug and
alcohol testing. Additionally, the FAA asked various questions
pertaining to foreign countries' laws and regulations, program elements
of acceptable drug and alcohol testing, existing drug and alcohol
testing program in other countries, and the scope of a proposed rule to
include persons performing safety sensitive maintenance functions on
aircraft operated by part 121 air carriers in accordance with part 43.
The comment period for the ANPRM, originally set for 60 days, was
extended an additional 60 days \18\ to allow time for commenters to
analyze the ANPRM and prepare comments. Few comments provided specific
information on the laws, cultural practices, and existence of drug and
alcohol testing programs in foreign countries and instead presented
general arguments in support and opposition.
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\18\ ANPRM--Extension of Comment Period, Drug and Alcohol
Testing of Certain Maintenance Provider Employees Located Outside of
the United States; Extension of Comment Period, 79 FR 24631 (May 1,
2014).
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The FAA received 74 comments: 40 generally supported the ANPRM; 29
generally opposed the ANPRM; and five stated no position. The 40
commenters who generally supported the proposal include 33 individuals,
including certificated airmen (e.g., mechanics, flight instructors) and
members of the flying public; three airline mechanics' unions; two
aviation consulting firms; a consumer advocacy group; and an aircraft
manufacturer. These commenters generally believed that maintenance
personnel both within the U.S. and abroad should be treated the same
with respect to drug and alcohol testing.
Supporters additionally proposed that the FAA expand the rule
beyond the scope of the statutory mandate to (1) make existing domestic
regulations and those that would be extended internationally more
stringent, and (2) include part 135 operators, part 91 operators, and
fractional ownership operators (under part 91, subpart K) that use part
145 repair station employees outside the territory of the U.S. in the
testing requirements. These commenters also recommended expanding the
testing requirement to employees of non-certificated repair stations
outside the territory of the U.S., such as authorized persons who
perform maintenance functions on aircraft operated by part 121 air
carriers in accordance with 14 CFR 43.17.\19\ These supporters include
the Teamsters Aviation Mechanic Coalition, Aircraft Mechanics Fraternal
Association, and the Transportation Trades Department labor unions, who
stated an expansion in scope would help improve the safety of
maintenance functions that are outsourced to repair stations outside
the territory of the U.S. Some commenters asserted that U.S.-based
maintenance facilities are operating at an economic disadvantage as
maintenance facilities abroad are not required to subject employees to
drug and alcohol testing and, therefore, are essentially circumventing
the associated costs to maintain a testing program.
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\19\ Section 43.17 sets forth requirements for maintenance and
preventative maintenance performed on U.S. aeronautical products by
persons who hold valid Transport Canada Civil Aviation Maintenance
Engineer licenses and Transport Canada Civil Aviation Approved
Maintenance Organizations.
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Outside of the five commenters that did not state an overt position
on the proposal, the remaining comments were from nine foreign repair
stations, four foreign governmental aviation organizations, four trade
associations, four foreign trade associations, three airline
manufacturers, three foreign airlines, one foreign aviation industry
coalition, and one foreign government representative. These twenty-nine
commenters generally opposed the ANPRM stating that the FAA threatens
to overreach its authority and the proposal fails to recognize national
sovereignty, existing Bilateral Aviation Safety Agreements (BASAs), the
impact of ICAO initiatives,\20\ and the economic impact to the aviation
industry. The FAA responds to the comments in the subsequent sections.
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\20\ The FAA notes that as of the publication of the ANPRM,
there were (and continue to be) a number of ICAO standards and
recommended practices that address misuse of drugs and alcohol by
aviation personnel; however, ICAO did not, and does not, require
ICAO Member States to establish testing program to deter or detect
inappropriate drug and alcohol use by aviation personnel with
safety-sensitive responsibilities.
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National Sovereignty
More than half of the opposing commenters cited failure to
recognize each nation's sovereignty, stating that the FAA cannot impose
regulations on persons outside the territory of the U.S. where those
regulations conflict with the laws of sovereign nations. The Coalition
of Industry Groups, which includes members from Aeronautical Repair
Station Association (ARSA), Airlines for America (A4A), Regional
Airline Association (RAA), International Air Transport Association
(IATA), and other associations, supported requiring drug and alcohol
testing programs outside the territory of the U.S. However, these
aviation associations also emphasized that many countries have laws
protecting the right to privacy in employment, as well as labor and
data security laws, that could conflict with the proposed rule. These
associations and commenters strongly suggested the FAA respect national
sovereignty and ensure the proposal is consistent with applicable laws
of the country in which the repair station is located. Commenters
asserted that the FAA must not move forward with a proposal that would
be applied without respect to national sovereignty.
FAA Response
In evaluating the international implications of requiring part 145
repair stations outside of the United States to implement drug and
alcohol testing programs that comply with U.S. domestic testing
standards throughout the global community, the FAA has become aware of
the difficulties associated with the establishment of such programs.
Specifically, any regulation that requires 14 CFR part 145 repair
stations located outside the territory of the U.S. to implement drug or
alcohol testing programs without respect to national sovereignty may be
contrary to international law and might exceed generally recognized
limits to extraterritorial jurisdiction. Further, section 308 of the
FAA Modernization and Reform Act of 2012 directs that the proposed rule
be ``consistent with the applicable laws of the country in which the
repair station is located.'' Given these considerations, should the
application of 49 CFR part 40 and 14 CFR part 120 wholly or in part be
inconsistent with a country's laws or

[[Page 85141]]

regulations, the 14 CFR part 145 repair station could apply for an
exemption from 49 CFR part 40 using the process described in 49 CFR
40.7. Additionally, the repair station could request a waiver from 14
CFR part 120 following the instructions proposed in new Sec. 120.9. As
further discussed in section IV.C. of this preamble, the FAA has
proposed language in 14 CFR 120.5 to clarify that the FAA will
recognize any 49 CFR part 40 exemptions issued to an employer as
meeting the procedures set forth in accordance with that part.
Bilateral Aviation Safety Agreements
Most of the same commenters opposing unilateral application of drug
and alcohol testing regulations pointed to the BASAs the U.S. is party
to, (e.g., Switzerland, Canada, and the European Union). Commenters
detailed that these BASAs include separate detailed agreements on
mutual cooperation and technical assistance in the evaluation and
acceptance of each country's approved maintenance organization systems
(i.e., Maintenance Implementation Procedures agreements). The
International Air Transport Association (IATA) commented that BASAs
contribute to growth in aviation services by dramatically reducing
regulatory compliance costs, making government oversight more
efficient, and helping aerospace interests grow and compete globally.
IATA recommended that the FAA focus on working with governments that
impose equivalent, not duplicate, measures in its efforts to apply
requirements for drug and alcohol testing programs outside the
territory of the U.S.
Additional commenters asserted that BASAs contain provisions
requiring consultation before unilateral rulemaking, which has not yet
happened in relation to this proposal. The commenters expressed that
the FAA is obligated to ensure that current international agreements
are honored, which would include such consultation. Comments from the
UK Department for Transport, International Aviation Safety and
Environment Division specifically stated that it is important for the
FAA to consider consultations under Article 17 of the EU/U.S. BASA.\21\
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\21\ In light of the withdrawal of the UK from the EU on January
31, 2020, the UK is no longer part of the EU/U.S. BASA.
Consultations between the U.S. and UK are now governed by Article IV
of the 1995 UK/U.S. BASA.
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FAA Response
The FAA has been directed by Congress to promulgate regulations
requiring part 145 repair stations outside the U.S. to have a drug and
alcohol testing program for their employees who perform work on part
121 aircraft. To the extent that BASA provisions concerning notice and
consultation are applicable to the proposed regulations, the FAA
intends to follow those provisions. Commenters have not identified any
specific BASAs that are in conflict with the statutory requirements
this proposed rule would implement, nor is FAA aware of any at this
time. The FAA invites comments as to whether there are any BASAs that
would conflict with the requirements of this proposed rule. Additional
discussion regarding the FAA's international obligations may be found
in section IV.D. of this preamble.
Safety Case
Commenters also raised concerns regarding the lack of supporting
evidence indicating that a safety case exists to justify the proposed
rule. Commenters noted that there have been no documented aviation
accidents in the U.S., the European Union, or Hong Kong in which drug
use and/or alcohol misuse has been a direct cause or contributing
factor. The Federal Office of Civil Aviation (FOCA)--Swiss
Confederation stated that it has found no data that would support the
existence of a safety case, and Switzerland and other European Aviation
Safety Agency (EASA) Member States have safety management provisions in
place for maintenance stations and a verifiable track record
demonstrating that drug use and/or alcohol misuse does not currently
represent a safety concern requiring further regulatory action.
Commenters noted that according to the ICAO Accident Data Reporting
system, between 1970 and 2012, there were no occurrence reports of drug
or alcohol intake at maintenance facilities. Additionally, commenters
pointed out that the FAA's own data demonstrates a low risk of drug use
and/or alcohol misuse by maintenance personnel in the U.S.
FAA Response
The FAA does not have sufficient data to estimate a baseline level
of safety risk associated with drug use and/or alcohol misuse at
foreign repair stations. As previously discussed, the FAA received a
minimum amount of information pertaining to foreign countries' laws and
regulations, program elements of acceptable drug and alcohol testing,
and existing drug and alcohol testing programs in other countries. The
FAA also recognizes that the number of proven accidents and incidents
involving drug use and/or alcohol misuse by maintenance personnel at
foreign repair stations is unknown. Because the FAA does not have
testing data or knowledge of existing testing programs in other
countries, the FAA is unable to estimate the impact of the proposed
rule in detecting and deterring drug use and/or alcohol misuse at this
time. Therefore, the FAA cannot determine whether the rule would have
any additional impact on safety or persons performing non-safety
sensitive functions and has, accordingly, scoped this proposal to
address the specific statutory mandates in 49 U.S.C. 44733(d)(2) and 49
U.S.C. 44733. The FAA invites comments on this issue.
In addition, the FAA is considering how best to deter drug and
alcohol misuse for any aircraft mechanic working on a part 121 aircraft
regardless of how that mechanic is employed. Therefore, the FAA seeks
comments as to whether the testing requirements in this proposed rule
should be extended to foreign aircraft mechanics working directly for
part 121 carriers. Commenters are asked to submit data that would allow
the FAA to quantify the benefits and costs of expanding drug and
alcohol testing requirements to these mechanics.
Financial and Operational Concerns
While many of the commenters noted that it was difficult to
estimate the cost of implementing drug and alcohol testing programs
since any testing regime closely resembling U.S. requirements does not
exist in most areas abroad, they also noted that it was likely that
imposition of drug and alcohol testing requirements would have a
disproportionate financial impact on small-to-medium sized aerospace
companies. Some commenters, including A4A, Honeywell, and Taikoo
(Xiamen) Landing Gear Services Co. Ltd. (TALSCO), among others,
provided some level of estimated costs. Pratt & Whitney, for example,
provided estimated costs for implementing and maintaining a drug and
alcohol testing program, specifics of which may be found in the public
docket, and stated those extensive costs are without justification if
the FAA cannot quantify the added benefit to safety. The Coalition of
Industry Groups noted its concern regarding the FAA's responsibility to
ensure that the costs do not outweigh the benefits of any agency
action. Additionally, Hong Kong Aero Engine Services Limited (HAESL)
stated that extra costs will be incurred with no significant benefit.

[[Page 85142]]

FAA Response
The FAA acknowledges the commenters' concerns. The FAA used a
combination of the estimates submitted by commenters and U.S. data to
estimate costs to all part 145 foreign repair stations developing a
drug and alcohol testing program that meets U.S. requirements. However,
not all estimates provided by commenters were used as some estimates
were considered high compared to current practice and estimates
obtained through industry outreach. The FAA also acknowledges that
small-to-medium sized aerospace companies would be impacted by this
rulemaking but does not have sufficient data to isolate the impact to
small and medium size foreign repair stations. Additionally, although
the FAA is unable to quantify benefits, this proposed rule would apply
the FAA's primary tool for detecting and deterring substance abuse by
safety-sensitive aviation employees throughout the international
aviation community to enhance safety.
International Civil Aviation Organization (ICAO)
A significant number of commenters noted that the appropriate
vehicle to set standards to require drug and alcohol testing programs
worldwide would be an ICAO initiative. Commenters pointed out that the
Act mandates dealing with this issue under the auspices of an ICAO
initiative.\22\ Many of these commenters, including the European
Commission, Boeing Commercial Airplanes, the Embassy of the Netherlands
to the U.S., Deutsche Lufthansa, and the Cargo Airline Association,
among others, supported proceeding through the ICAO process.
Additionally, commenters stated it is inappropriate for the FAA to take
further action on this issue without first seeking common ground
through ICAO. IATA stated that an ICAO initiative would set a common
baseline for safety with adequate flexibility for varying customs and
laws, which governments could follow when issuing their own
regulations. Most commenters observed that the FAA's historical
position regarding global drug and alcohol testing has been to address
testing issues through ICAO.
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\22\ The FAA surmises that the commenters were indicating Sec.
308(d)(1) of the FAA Modernization and Reform Act of 2012, which
states, ``The Secretary of State and the Secretary of
Transportation, acting jointly, shall request the governments of
foreign countries that are members of the International Civil
Aviation Organization to establish international standards for
alcohol and controlled substances testing of persons that perform
safety-sensitive maintenance functions on commercial air carrier
aircraft.'' In response to the Congressional mandate, the FAA notes
that prior to the publication of the ANPRM, the Department of State,
in conjunction with the FAA, sent a demarche request to countries
with active part 145 repair stations requesting support in ICAO
action. Of the 66 countries surveyed, 29 replied indicating support
to establish international standards for effective drug and alcohol
testing of all persons performing safety-sensitive functions on
commercial air carrier aircraft within their country through ICAO
initiatives.
---------------------------------------------------------------------------

FAA Response
The FAA supports the development of international standards and
believes that they would help deter and detect drug and alcohol use
that could compromise aviation safety. However, ICAO standards do not
presently require ICAO Member States to establish (or direct industry
to establish) testing programs to deter or detect drug use and alcohol
misuse by aviation personnel in the performance of safety-sensitive
functions. ICAO's Annex 1 sets forth international standards and
recommended practices for license holders concerning their mental
fitness and use of psychoactive substances, including drugs and
alcohol. Annex 1 applies to flight crew members \23\ and other
personnel and recommends the identification and removal of license
holders from their safety-sensitive functions while under the influence
of any psychoactive substance. Specifically, annex 1 section 1.2.7, Use
of Psychoactive Substances, states that holders of licenses provided
for in this Annex shall not exercise the privileges of their licenses
and related ratings while under the influence of any psychoactive
substance which might render them unable to safely and properly
exercise these privileges and shall not engage in any problematic use
of substances.\24\ ICAO provides further guidance about drug and
alcohol testing in its Manual on Prevention of Problematic Use of
Substances in the Aviation Workplace; the manual outlines suitable
methods of identifying license holders who are under the influence,
including through biochemical testing under certain circumstances.
Although the ICAO standards set forth in Annex 1 and many countries'
aviation regulations prohibit the use of drugs and alcohol by certain
aviation personnel when use may threaten aviation safety, many
countries either do not require testing of aviation personnel to verify
compliance or do not extend testing to maintenance personnel. In
keeping with U.S. obligations under the Convention on International
Civil Aviation, it is FAA policy to conform to ICAO Standards and
Recommended Practices (SARP) to the maximum extent practicable.
However, the FAA proposes this rule in accordance with the Act's
statutory mandate in an area within which there are no ICAO SARPs.
Should ICAO adopt drug and alcohol program standards in the future the
FAA will work to ensure its drug and alcohol programs are aligned with
such SARPs.
---------------------------------------------------------------------------

\23\ ICAO defines a ``flight crew member'' as a licensed crew
member charged with duties essential to the operation of an aircraft
during a flight duty period. ICAO Annex 1, 1.1. Section 1.2(a)
identifies flight crew as private pilots; commercial pilots; multi-
crew pilot; airline transport pilot; glider pilot; free balloon
pilot; flight navigator; and flight engineer. Section 1.2(b)
identifies other personnel as aircraft maintenance (technician/
engineer/mechanic), air traffic controllers, flight operations
officers/flight dispatchers, and aeronautical station operators.
\24\ Annex 1, 1.2.7.1, 1.2.7.2.
---------------------------------------------------------------------------

3. FAA Extension, Safety, and Security Act of 2016
After the FAA published the ANPRM, as previously discussed,
Congress enacted the FAA Extension, Safety, and Security Act of 2016
(2016 Act),\25\ which reemphasized Congress' prioritization of drug and
alcohol programs for foreign repair station employees in section 2112.
Specifically, section 2112 directed the FAA to (1) ensure that an NPRM
is published within 90 days of the date of the enactment of the 2016
Act and (2) ensure that the rulemaking is finalized within a year of
the NPRM publication.\26\ This NPRM is promulgated in accordance with
such direction. The FAA notes that, while section 2112 (using the
cross-referenced 49 U.S.C. 44733(d)(2)) specifies minimum content for
the NPRM, it does not specify minimum content for the final rule, which
may be changed from the NPRM in response to comments.
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\25\ Public Law 114-190 (Jul. 15, 2016).
\26\ Section 2112(b).
---------------------------------------------------------------------------

IV. Discussion of the Proposal

A. Application of 14 CFR Part 120 and 49 CFR Parts 40 Through 145
Certificated Repair Stations Located Outside the Territory of the
United States (Sec. Sec. 120.1, 120.123 and 120.227)

Currently, the drug and alcohol testing regulations in 14 CFR part
120 require certain persons to establish a drug and alcohol program.
These persons include all air carriers and operators certificated under
14 CFR part 119 authorized to conduct operations under 14 CFR part 121
or part 135; all air traffic control facilities not operated by the FAA
or under contract to the U.S. military; all operators as defined in 14
CFR 91.147; all individuals who perform a safety sensitive function
provided in subpart E or F of 14 CFR

[[Page 85143]]

part 120; all 14 CFR part 145 certificate holders who perform safety-
sensitive functions and elect to implement a drug and alcohol testing
program; and all contractors who elect to implement a drug and alcohol
testing program.\27\ The FAA-mandated testing program consists of
compliance with both the FAA's drug and alcohol testing program
requirements, 14 CFR part 120 (as applicable), as well as the OST's
procedural regulation, 49 CFR part 40.\28\
---------------------------------------------------------------------------

\27\ 14 CFR 120.1.
\28\ 14 CFR 120.5.
---------------------------------------------------------------------------

Notably, 14 CFR part 120 restricts these activities from occurring
outside of the U.S. Specifically, certain regulations bar (1) any part
of the drug testing process from occurring outside the territory of the
U.S., including specimen collection, laboratory processing, and Medical
Review Officer (MRO) actions \29\ and (2) any testing for alcohol
misuse while located outside the territory of the U.S.\30\ These
regulations have restricted any drug and alcohol testing under 14 CFR
part 120 from applicability outside the territory of the U.S. As it
pertains to this rulemaking, these regulations are applicable only to
domestic part 145 certificate holders who perform safety-sensitive
functions within the territories of the U.S. and elect to implement a
drug and alcohol testing program under this part.
---------------------------------------------------------------------------

\29\ 14 CFR 120.123(a).
\30\ 14 CFR 120.227(a).
---------------------------------------------------------------------------

The U.S. Government has found that drug and alcohol testing
programs for domestic aviation personnel who perform safety-sensitive
functions on part 121 aircraft are necessary given the potential of
drugs and alcohol to impair human performance. Safety-sensitive
personnel are responsible for their own safety as well as the safety of
countless others due to the inherent nature of their positions;
therefore, the FAA has defined certain persons as those with safety-
sensitive functions, which includes individuals employed by a part 145
repair station to perform aircraft maintenance duties \31\ for a part
121 operator. In the absence of data to support another approach to
drug and alcohol testing, the FAA would apply its primary tool for
detecting and deterring substance abuse by aviation employees
performing safety-sensitive maintenance functions throughout the
international aviation community.
---------------------------------------------------------------------------

\31\ 49 U.S.C. 44733 specifies ``aircraft maintenance,'' but
does not include ``preventive maintenance.'' Safety-sensitive
functions are defined in 14 CFR 120.7(n) as functions listed in 14
CFR 120.105 and 120.215. The FAA notes that the list of safety-
sensitive functions found in 14 CFR 120.105 and 120.215 includes
aircraft maintenance and preventive maintenance as separate duties.
The FAA draws a clear distinction between maintenance and preventive
maintenance (see: 14 CFR 1.1, expressly excluding preventive
maintenance from the definition of maintenance and defining
preventive maintenance as mutually exclusive from maintenance).
Therefore, preventive maintenance is outside the scope of the
mandate and is not covered in these proposed regulations.
---------------------------------------------------------------------------

Title 49 U.S.C. 44733 requires the Administrator to propose a rule
requiring that all employees responsible for safety sensitive
maintenance functions on part 121 air carrier aircraft at part 145
repair stations located outside the U.S.\32\ be subjected to an alcohol
and controlled substances testing program determined acceptable by the
Administrator. The FAA notes that the legislation specifically used the
term ``controlled substances.'' This term is also used in 49 U.S.C.
45102, which originally charged the FAA with prescribing regulations
for air carriers and foreign air carriers to conduct certain drug and
alcohol testing (i.e., eventual 14 CFR part 120). Title 49 U.S.C.
chapter 447 does not include a definition for ``controlled substance.''
However, the FAA finds that given (1) the deference to the FAA
Administrator to determine program acceptability in 49 U.S.C. 44733 and
(2) the FAA's firmly established drug and alcohol testing regulations
based off the original authority in 49 U.S.C. 45201, ``controlled
substances'' should be intended to mean the FAA current definition of
``drug'' as based off the definition of ``controlled substances''
provided by 49 U.S.C. 45201.\33\ Specifically, 49 U.S.C. 45101 states
that the definition of ``controlled substance'' means any substance
under section 102 of the Comprehensive Drug Abuse Prevention and
Control Act of 1970 specified by the Administrator of the FAA.\34\
---------------------------------------------------------------------------

\32\ Section 308 was promulgated in the U.S. Code as 49 U.S.C.
44733, Inspection of repair stations located outside the United
States. Under 49 U.S.C. chapter 447, ``United States'' is defined as
the States of the United States, the District of Columbia, and the
territories and possessions of the United States, including the
territorial sea and the overlying airspace. 14 CFR 1.1 similarly
defines United States, in a geographical sense, as the States, the
District of Columbia, Puerto Rico, and the possessions including the
territorial waters, and the airspace of those areas.
\33\ This definition was set forth by Public Law 103-272,
section 1(e) (Jul. 5, 1994).
\34\ The FAA, and the legislation itself, recognize that
countries may have different laws and regulations that set forth a
different set of acceptable or prohibited drugs. Section IV.C. of
this preamble discusses this issue in further detail.
---------------------------------------------------------------------------

In 14 CFR 120.7, the FAA defines a ``prohibited drug'' as any of
the drugs specified in 49 CFR part 40. OST defines ``drugs'' as
marijuana, cocaine, amphetamines, phencyclidine (PCP), and opioids in
49 CFR 40.3. These drugs are aligned with the HHS Mandatory Guidelines
established by the HHS for Federal drug-testing programs for scientific
testing issues, pursuant to OTETA, as previously discussed \35\ and
updated as HHS updates their drug categories. Specifically, the HHS
Mandatory Guidelines allow Federal agencies with drug-testing
responsibilities to test for certain controlled substances set forth by
the Controlled Substances Act (i.e., the drugs as defined in 49 CFR
40.3), which is title II of the Comprehensive Drug Abuse Prevention and
Control Act of 1970.\36\ Additionally, the FAA does not believe that
Congress intended to expand the scope of testing beyond that required
by current airmen and safety-sensitive positions. Should the FAA adopt
a differing definition of ``controlled substances,'' part 145 repair
stations outside the U.S. would be held to more stringent standards
than those required for domestically situated current airmen and
safety-sensitive positions. Neither the FAA, nor the OST, has a
mechanism to regulate such standards at this time. Therefore, the FAA
finds that the established term ``drug'' meets the intention of
Congress in using the term ``controlled substances.''
---------------------------------------------------------------------------

\35\ Public Law 102-143, title V, 105 Stat. 952 (Oct. 28, 1991).
Specifically, OTETA required the DOT and agencies to look to the HHS
Mandatory Guidelines for the scientific and technical guidelines
regarding the drugs to be tested.
\36\ Because this proposal would apply 49 CFR part 40, any type
of testing allowed under part 40 would be permitted, including oral
fluid testing once at least two labs are approved to test those
specimens.
---------------------------------------------------------------------------

The FAA, as discussed in section III.A. of this preamble, has long
held that the standards set forth in 14 CFR part 120 and 49 CFR part 40
are acceptable drug and alcohol testing programs for the aforementioned
safety-sensitive functions. The FAA finds that requirements of part 145
repair stations located outside the territory of the U.S. should mirror
those inside the U.S. who elect to have a drug and alcohol program.
Specifically, the FAA lacks the data or studies that would support a
deviation from the current program requirements as applicable to those
persons who perform safety-sensitive functions (i.e., 14 CFR part 120
and 49 CFR part 40). Therefore, this proposal would require all
employees of part 145 repair stations located outside the territory of
the U.S. who perform safety-sensitive maintenance functions on part 121
air carrier aircraft \37\ to be subject to

[[Page 85144]]

the current FAA-mandated testing programs. Accordingly, for purposes of
49 U.S.C. 44733(d)(2), the Administrator finds that the current drug
and alcohol testing scheme is acceptable in applicability to the
affected part 145 repair stations outside the territory of the U.S.
---------------------------------------------------------------------------

\37\ There are currently 977 part 145 repair stations located
throughout 65 foreign countries that maintain an FAA-issued
certificate. Many of these repair stations provide maintenance
functions to part 121 air carrier aircraft.
---------------------------------------------------------------------------

Therefore, the FAA proposes three revisions to 14 CFR 120.1, which
outlines to whom part 120 applies. First, the FAA proposes to revise
current 14 CFR 120.1(c) to specify that paragraph (c) applies to those
part 145 certificate holders located in the territory of the U.S. who
elect to implement a drug and alcohol testing program under 14 CFR part
120. The FAA notes that there is no substantive change to the current
applicability of domestic part 145 certificate holders. Next, the FAA
proposes to expand applicability of 14 CFR part 120 to all part 145
certificate holders outside the territory of the U.S. who perform
safety-sensitive maintenance functions on part 121 air carrier aircraft
by adding new paragraph (d).\38\ This, in turn, would redesignate
current 14 CFR 120.1(d) as paragraph (e).
---------------------------------------------------------------------------

\38\ The FAA notes that domestic repair stations may elect to
implement a drug and alcohol testing program; however, foreign
repair stations must implement a drug and alcohol testing program
covering employees who perform maintenance on part 121 aircraft. If
a domestic repair station does not elect to implement a drug and
alcohol testing program, then the part 121 air carrier must cover
the repair station's safety-sensitive employees under its FAA drug
and alcohol testing program.
---------------------------------------------------------------------------

Additionally, the FAA finds it necessary to provide specific
instructions to affected part 145 repair stations outside the territory
of the U.S., consistent with the requirements for other affected
persons (i.e., the persons listed in 14 CFR 120.1), on how to obtain
the necessary authority to implement a drug and alcohol testing
program. Specifically, 14 CFR 120.117 and 120.225 set forth certain
requirements specific to the person implementing a drug and alcohol
testing program and do not currently include part 145 repair stations
affected by this proposed rulemaking.
The FAA, therefore, proposes three revisions to the charts set
forth in 14 CFR 120.117(a) and (c), which would treat applicable part
145 repair stations outside the territory of the U.S. similar to those
domestic part 145 repair stations who choose to enact their own drug
testing programs. First, 14 CFR 120.117(a) provides the documentation
that a company must obtain from the FAA to implement a drug testing
program: an Antidrug and Alcohol Misuse Prevention Program Operations
Specification (A449), Letter of Authorization (A049), or Drug and
Alcohol Testing Program Registration. Second, a revision to paragraph
(a)(5) is necessary to specify the requirements in that paragraph,
which permit a repair station to elect to implement a testing program,
are applicable only to part 145 certificate holders located inside the
territory of the U.S. Finally, the FAA proposes to add new paragraph
(a)(6) within the chart in 14 CFR 120.117. This paragraph would require
a part 145 repair station located outside the territory of the U.S.
whose employees perform safety-sensitive maintenance functions on part
121 air carrier aircraft to obtain an A449 in their Operations
Specification by contacting the repair station's Principal Maintenance
Inspector. The A449 serves as the certification to comply with the drug
and alcohol testing regulations, 49 CFR part 40 and 14 CFR part 120. In
turn, current 14 CFR 120.117(a)(6) would be redesignated as paragraph
(a)(7).
Similarly, 14 CFR 120.117(c) prescribes certain requirements
pertaining to the implementation of an Antidrug and Alcohol Misuse
Prevention Program. The FAA proposes several revisions to 14 CFR
120.117(c). First, a revision to paragraph (c)(1) is necessary to
specify the requirements in that paragraph are applicable only to part
145 certificate holders located inside the territory of the U.S. Next,
the FAA proposes new paragraph (c)(2) to require the applicable repair
station located outside the territory of the U.S. to (1) obtain an A449
in their Operations Specification by contacting the repair station's
Principal Maintenance Inspector, (2) implement the drug testing program
no later than one year from the effective date of the regulation \39\
(or, if a foreign repair station begins operations more than one year
after the effective date of the regulation, implement a drug testing
program no later than the date the repair station begins operations),
and (3) meet the requirements of 14 CFR part 120, subpart E. In turn,
current 14 CFR 120.117(c)(2) would be redesignated as paragraph (c)(3).
Finally, the FAA proposes minor grammatical changes to the headings of
the chart set forth by 14 CFR 120.117(c) and introductory text of
paragraphs (c)(1) and (3) to conform with the heading revisions.
---------------------------------------------------------------------------

\39\ The FAA finds that a one-year implementation date from the
effective date of the legislation would give part 145 repair
stations outside the territory of the U.S. sufficient time to
identify laws that may contradict the regulations set forth in 14
CFR part 120 and 49 CFR part 40 and provide the FAA and DOT
sufficient time to process waivers and exemptions, respectively,
addressing such barriers.
---------------------------------------------------------------------------

Subpart F of 14 CFR part 120 sets forth the alcohol testing program
requirements. The requirements pertaining to implementation largely
mirror those set forth in subpart E, Drug Testing Program Requirements.
The FAA, therefore, proposes similar amendments to the implementation
charts set forth in 14 CFR 120.225(a) and (c) for the same reasons as
previously discussed. Specifically, in 14 CFR 120.225(a), the FAA
proposes to: first, revise the introductory language of paragraph
(a)(5) to specify that paragraph is applicable to part 145 certificate
holders located inside the territory of the U.S.; second, add new
paragraph (a)(6) to include the requirements for a part 145 repair
station located outside the territory of the U.S. who performs safety-
sensitive maintenance functions on part 121 air carrier aircraft; and,
third, redesignate current paragraph (a)(6) as new (a)(7). Likewise, in
14 CFR 120.225(c), the FAA proposes to: first, revise paragraph (c)(1)
as necessary to specify the requirements in that paragraph are
applicable only to part 145 certificate holders located inside the
territory of the U.S.; second, add new paragraph (c)(2) to require the
applicable repair station located outside the territory of the U.S. to
(1) obtain an A449 in their Operations Specification by contacting the
repair station's Principal Maintenance Inspector, (2) implement the
drug testing program no later than one year from the effective date of
the regulation (or, if a foreign repair station begins operations more
than one year after the effective date of the regulation, implement a
drug testing program no later than the date the repair station begins
operations), and (3) meet the requirements of 14 CFR part 120, subpart
E; and, third, redesignate current paragraph (c)(2) as (c)(3). Finally,
the FAA proposes, first, minor grammatical changes to the headings of
the chart set forth by 14 CFR 120.225(c) and introductory text of
paragraphs (c)(1) and (3) to conform with the heading revisions and,
second, to add the correct introductory text in paragraph (d), which is
currently and inadvertently blank in the regulations.

B. Conforming Amendments To Facilitate Drug and Alcohol Procedures
Outside the United States (Sec. Sec. 120.123 and 120.227)

There are certain regulations in 14 CFR part 120 that effectively
restrict any drug and alcohol programs from implementation outside of
the U.S. Specifically, 14 CFR 120.123(a) bars any

[[Page 85145]]

part of the drug testing process from being conducted outside the
territory of the U.S. and requires that employees assigned safety-
sensitive functions solely outside the territory of the U.S. to be
removed from random testing pools, only to be returned once the covered
employee has resumed functions wholly or partially in the U.S.
Additionally, 14 CFR 120.123(b) states that the provisions of subpart E
(Drug Testing Program Requirements) do not apply to any individual who
performs a function pursuant to 14 CFR 120.105 by contract for an
employer outside the territory of the U.S. Likewise, 14 CFR 120.227(a)
bars covered employees from being tested for alcohol misuse while
located outside the territory of the U.S. and mirrors the requirement
of removal of a covered employee outside the territory of the U.S. from
the random testing pool as with drug testing programs previously
discussed. Additionally, 14 CFR 120.227(b) states that the provisions
of subpart E (Alcohol Testing Program Requirements) do not apply to any
individual who performs a safety sensitive function by contract for an
employer outside the territory of the U.S.
The FAA recognizes that these regulations serve as barriers to the
implementation of a drug and alcohol testing program for a part 145
repair station outside the territory of the U.S. Without conforming
amendments to except these repair stations from 14 CFR 120.123 and
120.227, it would be impossible to comply with the proposed regulations
and the current regulations. Therefore, the FAA proposes to amend
Sec. Sec. 120.123 and 120.227 to allow drug and alcohol testing
processes to be conducted on employees of part 145 repair stations
located outside the territory of the U.S. who perform safety-sensitive
maintenance functions on part 121 air carrier aircraft. Specifically,
this proposal would add language at the beginning of 14 CFR 120.123(a),
120.123(a)(1), 120.123(b), 120.227(a), 120.227(a)(1), and 120.227(b)
that would except persons under proposed 14 CFR 120.1(d) from
applicability of those regulations restricting drug and alcohol testing
outside the territory of the U.S.
Currently, part 121 air carriers are responsible for ensuring that
individuals who perform safety-sensitive maintenance functions within
the territory of the U.S. are subject to testing. If a part 121 air
carrier does not include a maintenance worker under their own testing
program, it must ensure the worker is included in the FAA-mandated
testing program of whomever the air carrier uses to perform safety-
sensitive maintenance functions (e.g., a part 145 repair station). In
keeping with the congressional mandate, this proposal does not change
the language of the regulation that removes part 121 employees located
outside of the territory of the U.S. from the testing pool. Thus, part
121 air carriers that directly perform their own maintenance outside
the territory of the U.S. would not be required to test their employees
for drugs and alcohol. If the part 121 air carrier decides to hire
(either as an employee or an independent contractor) the foreign part
145 repair station employees who work on its aircraft, then those
employees would not be subject to testing because the part 121 air
carrier is restricted from including into its testing pool employees
who work solely outside the territory of the U.S.
This approach is consistent with the statutory mandate, which did
not address drug and alcohol testing of part 121 employees performing
safety-sensitive maintenance functions outside the territory of the
U.S. As previously discussed, the FAA lacks safety data and supporting
research to support a proposal of drug and alcohol testing beyond that
required by the legislation. However, the FAA is considering how best
to deter drug use and alcohol misuse for any aircraft mechanic working
on a part 121 aircraft regardless of how that mechanic is employed.
Therefore, the FAA seeks comments, with supporting data, as to whether
the testing requirements in this proposed rule should be extended to
foreign aircraft mechanics working directly for part 121 carriers.

C. Exemptions and Waivers to Drug and Alcohol Program Requirements
(Sec. Sec. 120.5 and 120.9)

The FAA recognizes that the different laws and regulations of some
countries (including, but not limited to, privacy laws) may place
limitations on drug and alcohol testing, prohibit it entirely, or place
conditions on how testing would be done. In fact, Congress contemplated
this potential barrier in 49 U.S.C. 44733(d)(2), as evidenced by the
language requiring the drug and alcohol program to be both acceptable
to the Administrator and consistent with the applicable laws of the
country in which the repair station is located. As previously discussed
in the responses to comments to the ANPRM, the FAA seeks to avoid
situations whereby the regulations of the FAA are inconsistent with
laws in other sovereign countries. As this proposal extends the drug
and alcohol testing requirements beyond the territory of the U.S., the
FAA realizes that the different laws of some countries, including, but
not limited to, privacy laws, may place limitations on drug and alcohol
testing or prohibit it entirely. For example, some countries may bar
pre-employment drug testing, which is required by 14 CFR 120.109(a).
Section 120.5 requires each employer having a drug and alcohol
testing program under part 120 to ensure that all drug and alcohol
testing conducted under that part complies with the procedures set
forth in 49 CFR part 40. In evaluating the effects of the congressional
mandate, the FAA has scrutinized the many challenges associated with
the establishment and implementation of drug and alcohol testing
programs outside the U.S. that comply with both the FAA regulations and
the DOT's testing standards and procedures.\40\ In cases in which
compliance with certain provisions of 49 CFR part 40 would not be
attainable due to legal restrictions in the country where testing must
occur, the part 145 repair station could apply for an exemption from
part 40 using the process described in 49 CFR 40.7. Under Sec. 40.7,
an exemption will only be granted if the requestor documents special or
exceptional circumstances (e.g., a country's law) that make compliance
with a specific provision of 49 CFR part 40 impracticable. To
acknowledge the potential need for foreign repair stations to obtain
exemptions issued by the DOT from 49 CFR part 40, the FAA proposes to
add language to 14 CFR 120.5 to clarify that an employer's drug and
alcohol testing conducted pursuant to 14 CFR part 120 must comply with
the procedures set forth in 49 CFR part 40, to include any exemptions
issued to that employer in accordance with 49 CFR 40.7.
---------------------------------------------------------------------------

\40\ 49 CFR 40.3 sets forth the terms used in part 40 and
includes the definition for laboratory, which is any U.S. laboratory
certified by HHS under the National Laboratory Certification Program
as meeting the minimum standards of Subpart C of the HHS Mandatory
Guidelines for Federal Workplace Drug Testing Programs; or, in the
case of foreign laboratories, a laboratory approved for
participation by DOT under part 40. Laboratories participating in
the DOT drug testing program must comply with the requirements of 49
CFR part 40 and with all applicable requirements of HHS in testing
DOT specimens. Currently, a laboratory located in the U.S. is
permitted to participate in DOT drug testing only if it is certified
by HHS under the National Laboratory Certification Program (NLCP),
or, in the case of a foreign laboratory, if it is approved for
participation by the DOT with respect to part 40. The FAA recognizes
that there are, first, no HHS certified laboratories in any of the
foreign countries impacted by this rulemaking and, second, that
there is a multitude of differently situated laboratories
internationally. Therefore, a foreign laboratory would be required
to seek approval in accordance with DOT procedures under 49 CFR part
40.
---------------------------------------------------------------------------

Traditionally, when a person cannot comply with an FAA regulation,
the person may seek an exemption through

[[Page 85146]]

the procedures set forth by 14 CFR part 11. However, to streamline and
efficiently address potential international legal conflicts, the FAA
proposes to add waiver authority in new 14 CFR 120.9 that will allow
repair stations located outside of the U.S. to request waivers from
specific provisions of 14 CFR part 120. Specifically, proposed 14 CFR
120.9(a) sets forth the waiver authority for those applicable repair
stations that would be unable to comply with the requirements of 14 CFR
part 120 due to the laws of the country within which the repair station
is located. New paragraph (b) would set forth the information required
by the Administrator to evaluate and process the waiver request.
For example, the Administrator requires basic informational
details; the specific section(s) of 14 CFR part 120 from which a waiver
is sought; the reasons why granting the waiver would not contravene the
purpose of 14 CFR part 120, as defined in Sec. 120.5; a copy of the
law that is inconsistent with 14 CFR part 120; an explanation of how
the law applies to affected employees and how it is inconsistent with
14 CFR part 120; and a description of alternate means used to achieve
the objectives of the part 120 provision from which the waiver is
sought (or, if it is impossible to achieve the objective by alternative
means, a justification of why it would be so). Finally, new 14 CFR
120.9(c) would provide the manner in which the repair station should
submit their waiver request.
The FAA finds that the existing exemption process in 49 CFR part 40
in tandem with the proposed waiver process in new 14 CFR 120.9 would
provide sufficient pathways to work with part 145 certificated repair
stations outside the territory of the U.S. to ensure these repair
stations are not in violation of the laws of the country within which
they are situated. The FAA notes that each process is intended to
provide relief for its respective regulations. While the FAA requires
compliance with 49 CFR part 40 through its regulations, the FAA does
not have the authority to exempt a person from the regulations situated
there, and person should not request a waiver from the FAA for relief
from the DOT's regulations. If a person determines they cannot meet
certain 49 CFR part 40 requirements (e.g., if their country's laws do
not allow drug testing for one or more of the drugs required under 49
CFR 40.85), the person should follow the process set forth by 49 CFR
40.7; should the DOT grant the exemption, the FAA would recognize the
exemption through proposed 14 CFR 120.5. Likewise, the waiver process
set forth in new 14 CFR 120.9 provides an avenue by which a person may
seek relief from FAA regulations that a person determines they cannot
meet (e.g., if their country's laws do not allow pre-employment drug
testing, which is required under 14 CFR 120.109(a)). As such, a person
may have to appeal to both the DOT and FAA for an exemption and a
waiver, respectively, if there are regulations in each part that a
person seeks relief from.

D. Impact on International Agreements

As noted in the discussion of comments to the ANPRM, commenters
raised concerns regarding the impact of the legislation and enabling
regulations on existing Bilateral Aviation Safety Agreements (BASA).
However, commenters have not identified any specific BASAs that are in
conflict with the statutory requirements this proposed rule would
implement, nor is FAA aware of any at this time. The FAA invites
comments as to whether there are any BASAs that would conflict with the
requirements of this proposed rule.

V. Regulatory Notices and Analyses

Federal agencies consider impacts of regulatory actions under a
variety of Executive orders and other requirements. First, Executive
Order 12866 and Executive Order 13563, as amended by Executive Order
14094 (``Modernizing Regulatory Review''), direct that each Federal
agency may 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 as
amended) prohibits agencies from setting standards that create
unnecessary obstacles to the foreign commerce of the U.S. In developing
U.S. standards, the Trade Agreements 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 (adjusted annually for inflation) in
any one year. The current threshold after adjustment for inflation is
$177,000,000, using the most current (2022) Implicit Price Deflator for
the Gross Domestic Product. This portion of the preamble summarizes the
FAA's analysis of the economic impacts of this proposed rule. The FAA
has provided a more detailed Regulatory Impact Analysis of this
proposed rule in the docket of this rulemaking.
In conducting these analyses, the FAA has determined that this
proposed rule: is a ``significant regulatory action,'' as defined in
section 3(f) of Executive Order 12866 because it raises legal or policy
issues for which centralized review would meaningfully further the
President's priorities or the principles set forth in Executive Order
12866 as amended by Executive Order 14094; could have a significant
economic impact on a substantial number of small entities; could create
unnecessary obstacles to the foreign commerce of the U.S.; and would
not impose an unfunded mandate on state, local, or tribal governments,
or on the private sector by exceeding the threshold identified above.
These analyses are summarized below.

A. Regulatory Evaluation

Total Benefits and Costs of This Rule
In response to Congressional direction, the FAA proposes to require
certificated part 145 repair stations located outside the U.S. and its
territories whose employees perform safety-sensitive maintenance
functions on part 121 air carrier aircraft to ensure those employees
are subject to a controlled substance and alcohol testing program
consistent with the applicable laws of the country in which the repair
station is located. This proposed rule would require part 145 repair
station located outside the territory of the U.S. to cover its
employees performing maintenance functions on part 121 air carrier
aircraft under its own testing program that meets the requirements of
49 CFR part 40 and 14 CFR part 120. However, if a part 145 repair
station cannot meet one or all requirements in 49 CFR part 40 (e.g.,
the laws of the country where the repair station is located are
inconsistent with the regulations), they may apply for an exemption
using the process described in 49 CFR 40.7. Similarly, if a part 145
repair station cannot meet one or all requirements in 14 CFR part 120,
they may apply for a waiver in accordance with proposed waiver
authority. Although there are no quantifiable benefits, this rulemaking
would apply the FAA's existing primary tool for detecting and deterring
substance abuse by safety-sensitive aviation employees, especially
illegal drug use, throughout

[[Page 85147]]

the international aviation community to enhance aviation safety. The
total cost, at seven percent present value, of this proposed rule
equals the foreign repair station cost of $102.3 million, plus FAA cost
of $6.3 million for a total of $108.7 million ($122.4 million at three
percent present value) over five years.
Who is potentially affected by this rule?
<bullet> Part 145 Certificated Foreign Repair Station outside the
U.S. that performs safety-sensitive maintenance functions on part 121
aircraft.
<bullet> The FAA Office of Aerospace Medicine.
I. Costs of This Rule
Part 145 certificated foreign repair stations outside the U.S. and
the FAA would incur the cost of this proposed rule. The estimated cost
of the proposed rule to part 145 certificated foreign repair stations
are the costs to implement a drug and alcohol testing program that
adheres to U.S. domestic testing standards. Cost to foreign repair
stations would consist of developing a drug and alcohol testing
program, training, testing safety sensitive maintenance employees for
drugs and alcohol, and documentations. Total cost to foreign repair
stations over five years, at seven percent present value, sums to
$102.3 million with and annualized cost of $24.9 million. At three
percent present value, estimated total cost to foreign repair stations
is $115.2 million with an annualized cost of $25.1 million.

Table 1--Cost to Part 145 Foreign Repair Stations Over 5 Years
[$Millions] *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Program and
training Testing (drug Total cost (7% Total cost (3%
Year development & Training and alcohol) Annual reports PV) PV)
maintenance
--------------------------------------------------------------------------------------------------------------------------------------------------------
1....................................................... $0.5 $12.9 $0.0 $3.8 $16.1 $16.7
2....................................................... 0.4 2.2 9.0 14.1 22.5 24.3
3....................................................... 0.4 2.3 9.4 14.7 21.9 24.5
4....................................................... 0.4 2.4 9.7 15.3 21.2 24.7
5....................................................... 0.4 2.5 10.1 15.9 20.6 24.9
-----------------------------------------------------------------------------------------------
Total............................................... 2.2 22.2 38.3 63.9 102.3 115.2
--------------------------------------------------------------------------------------------------------------------------------------------------------
* These numbers are subject to rounding error.

Cost to the FAA would include inspections and the necessary
documentation associated with monitoring these repair stations. Total
cost to FAA over five years, at seven percent present value, sums to
$6.3 million with an annualized cost of $1.5 million. At three percent
present value, total cost is $7.2 million with an annualized cost of
$1.6 million.
The FAA also invites commenters to submit data that would allow it
to quantify the costs of extending this proposed rule to foreign
aircraft mechanics employed directly by part 121 certificate holders.

II. Benefits of This Rule

Congress mandated that the FAA propose a rule that establishes drug
and alcohol testing programs for foreign repair stations. Any benefits
of the regulations would result from potential reductions in safety
risks, any improvements in safety in detecting and deterring drug use
and/or alcohol misuse, and worker productivity. The FAA concludes that
two specific sets of benefits may accrue from this rulemaking:
<bullet> The prevention of potential injuries and fatalities and
property losses resulting from accidents attributed to drug use/alcohol
misuse or neglect or error on the part of individuals whose judgement
or motor skills may be impaired by the presence of alcohol or drugs;
and
<bullet> The potential reduction in absenteeism, lost worker
productivity, and other cost to employers, as well as improved general
safety in the workplace, by the deterrence of drug use and/or alcohol
misuse.
However, the FAA lacks sufficient data to estimate a baseline level
of safety risk associated with a drug and alcohol testing program at
part 145 certificated foreign repair stations that perform safety
sensitive maintenance on part 121 aircraft. Additionally, it is
difficult to estimate (and the FAA does not have data on) the impact of
the proposed rule in detecting and deterring drug use and/or alcohol
misuse. To estimate safety and productivity benefits that would result
from this proposed rule, the FAA would need estimates of the following:
<bullet> Baseline risks attributable to drug use and/or alcohol
misuse;
<bullet> Effectiveness of the rule; and
<bullet> Value of the reduction in risk of affected outcomes.
The FAA invites comments on this issue. The FAA also invites
commenters to submit data that would allow it to quantify the safety
and productivity benefits of extending this proposed rule to foreign
aircraft mechanics employed directly by part 121 certificate holders.
Baseline Risks Attributable to Drug Use and/or Alcohol Misuse
The FAA does not have data to estimate a baseline level of safety
risk associated with safety-sensitive maintenance personnel drug use
and/or alcohol misuse. The FAA acknowledges there have been no
accidents or incidents related to safety-sensitive maintenance
personnel using drugs or alcohol. The FAA may use accidents or
incidents related to part 121 aircraft that list maintenance as either
a cause or factor in the accident report as a proxy to assess the
decreased risk of injuries, fatalities, and property losses. However,
it is difficult to attribute an accident or incident that occurs months
after the maintenance was completed to poor maintenance work related to
drug use and/or alcohol misuse.
Effectiveness of the Rule
The FAA would also need data on the effect of the rule on
maintenance workers' drug use and/or alcohol misuse and the resulting
effect on job performance. For example, drug and alcohol programs may
serve as a deterrent, resulting in less drug use and/or alcohol misuse
by employees and higher productivity. However, it would be difficult to
analyze the direct causal effect of less drug use and/or alcohol misuse
to improved productivity. The FAA would need to retrieve extensive
data, such as employees' health levels,

[[Page 85148]]

employees' sleep patterns, changes to operating procedures, levels of
education and training, and staffing levels, amongst other factors, to
isolate the direct effect of a decrease in drug or alcohol usage on
productivity levels. Additionally, even if this data were available,
the analysis would be extensive and there would be academic questions
regarding whether the causal effect was properly measured.
Additionally, as mentioned above, there are no accidents or
incidents directly related to drug use and/or alcohol misuse to
estimate the effect of the rule on injuries, fatalities, or property
loss. Therefore, there is a lack of information to establish a
baseline.
Value of Risk Reduction
The safety risks from drug use and/or alcohol misuse are increased
risk of injuries and fatalities in the event of an accident or
incident. The FAA values the reductions in such risks using the value
of statistical life (VSL) for fatalities and fractions of the VSL based
on the Maximum Abbreviated Injury Scale (MAIS) for injuries. The
Department of Transportation guidance on valuing reductions in
fatalities and injuries \41\ could be used to monetize and quantify
estimates of the potential safety benefits associated with this
rulemaking.
---------------------------------------------------------------------------

\41\ DOT Departmental Guidance on Valuation of a Statistical
Life. Economic Analyses. Office of the Secretary of Transportation.
<a href="https://www.transportation.gov/office-policy/transportation-policy/revised-departmental-guidance-on-valuation-of-a-statistical-life-in-economic-analysis">https://www.transportation.gov/office-policy/transportation-policy/revised-departmental-guidance-on-valuation-of-a-statistical-life-in-economic-analysis</a>.
---------------------------------------------------------------------------

Alternatives Considered
Alternative 1--the Status Quo--The status quo represents a
situation in which the FAA would not propose to require part 145
foreign repair stations to test their safety-sensitive maintenance
personnel for drugs and alcohol. This alternative is counter to
Congressional direction and, therefore, rejected.
Alternative 2--The FAA would work through the International Civil
Aviation Organization (ICAO) to create an international standard for
drug and alcohol testing of maintenance personnel at repair stations.
While the FAA is willing to work with ICAO, that alternative may not
meet Congressional direction due to the multitude of Member State
equities considered in the implementation of an ICAO standard. In other
words, Congress directed the FAA to establish a program acceptable to
the Administrator; working through ICAO to create an international
standard may not expeditiously meet this intention given the time,
resources, and scope of the adoption of an international standard.

B. Regulatory Flexibility Determination

The Regulatory Flexibility Act (RFA) of 1980, Public Law 96-354, (5
U.S.C. 601-612), as amended by the Small Business Regulatory
Enforcement Fairness Act of 1996 (Pub. L. 104-121) and the Small
Business Jobs Act of 2010 (Pub. L. 111-240), requires Federal agencies
to consider the effects of the regulatory action on small business and
other small entities and to minimize any significant economic impact.
The term ``small entities'' comprises small businesses and not-for-
profit organizations that are independently owned and operated and are
not dominant in their fields, and governmental jurisdictions with
populations of less than 50,000.
The FAA is publishing this Initial Regulatory Flexibility Analysis
(IRFA) to aid the public in commenting on the potential impacts to
small entities from this proposal. The FAA invites interested parties
to submit data and information regarding the potential economic impact
that would result from the proposal. The FAA will consider comments
when making a determination or when completing a Final Regulatory
Flexibility Analysis.
Under section 603(b) and (c) of the RFA, an IRFA must contain the
following:
(1) A description of the reasons why the action by the agency is
being considered;
(2) A succinct statement of the objective of, and legal basis for,
the proposed rule;
(3) A description of and, where feasible, an estimate of the number
of small entities to which the proposed rule will apply;
(4) A description of the projected reporting, recordkeeping, and
other compliance requirements of the proposed rule, including an
estimate of the classes of small entities which will be subject to the
requirement and the type of professional skills necessary for
preparation of the report or record;
(5) An identification, to the extent practicable, of all relevant
Federal rules that may duplicate, overlap, or conflict with the
proposed rule; and
(6) A description of any significant alternatives to the proposed
rule that accomplish the stated objectives of applicable statutes and
that minimize any significant economic impact of the proposed rule on
small entities.
1.1 Reasons the Action Is Being Considered
The proposed rule is in response to Congressional mandate that the
FAA propose a rule to establish drug and alcohol testing program
requirements for part 145 repair stations outside the territory of the
United States that provide safety-sensitive maintenance functions for
part 121 air carriers acceptable to the FAA Administrator.
1.2 Objectives and Legal Basis of the Proposed Rule
This proposed rule would require certificated part 145 repair
stations located outside the territory of the United States (U.S.) to
ensure that employees who perform aircraft maintenance on part 121 air
carrier aircraft are subject to a drug and alcohol testing program. A
part 145 repair station located outside the territory of the U.S. would
cover its employees performing maintenance functions on part 121 air
carrier aircraft under its own testing program meeting the requirements
of 49 CFR part 40 and 14 CFR part 120. If a part 145 repair station
cannot meet one or all requirements in 49 CFR part 40 (e.g., the laws
of the country where the repair station is located are inconsistent
with the regulations), the part 145 repair station may apply for an
exemption using the process described in 49 CFR 40.7. Similarly, if a
part 145 repair station cannot meet one or all requirements in 14 CFR
part 120, they may apply for a waiver in accordance with proposed
waiver authority.
The FAA's authority to issue rules on aviation safety is in title
49 of the United States Code (49 U.S.C.), specifically 49 U.S.C. 106
and 49 U.S.C. 45102. This proposed rule is further promulgated under
section 308 of the FAA Modernization and Reform Act of 2012 (the Act)
(49 U.S.C. 44733) and section 2112 of the FAA Extension, Safety, and
Security Act of 2016, which directed publication of a notice of
proposed rulemaking in accordance with 49 U.S.C. 44733.
1.3 All Federal Rules That May Duplicate, Overlap, or Conflict
There are no relevant Federal rules that may duplicate, overlap, or
conflict with the proposed rule.
1.4 Description and Estimate of the Number of Small Entities
This proposed rule would impact part 145 repair stations located
outside the territory of the U.S. that perform safety sensitive
maintenance functions on part 121 air carrier aircraft. The act defines
a small business as ``a business entity

[[Page 85149]]

organized for profit, with a place of business located in the United
States, and which operates primarily within the United States or which
makes a significant contribution to the U.S. economy through payment of
taxes or use of American products, materials or labor.'' \42\ While the
regulatory flexibility determination does not require small foreign
entities to be considered, foreign repair stations may be using U.S.
components or labor, especially if they are working on U.S.
manufactured aircraft; therefore, the FAA assumes the RFA would apply.
---------------------------------------------------------------------------

\42\ 13 CFR 121.105(a)(1). The Regulatory Flexibility Act
defines a ``small business'' as having the same meaning as ``small
business concern'' under section 3 of the Small Business Act. 5
U.S.C. 601(3). Section 121.105 of 13 CFR contains the Small Business
Administration's implementing regulations clarifying the definition
of ``small business concern.''
---------------------------------------------------------------------------

The SBA (2022) established size standards for various types of
economic activities, or industries, under the North American Industry
Classification System (NAICS).\43\ These size standards generally
define small businesses based on the number of employees or annual
receipts. Table 2 shows the SBA size standard, based on the NAICS code,
applicable to repair stations, as it encompasses air transport support
activities to include aircraft maintenance and repair services.
---------------------------------------------------------------------------

\43\ Small Business Administration (SBA). 2019. Table of Size
Standards. Effective August 12, 2019. <a href="https://www.sba.gov/document/support--table-size-standards">https://www.sba.gov/document/support--table-size-standards</a>.

Table 2--Small Business Size Standards: Aircraft Maintenance and Repair
Services
------------------------------------------------------------------------
NAICS code Description Size standard
------------------------------------------------------------------------
488190........................ Other Support $40.0 million.
Activities for
Air
Transportation.
------------------------------------------------------------------------
Source: SBA (2022).
NAICS = North American Industrial Classification System.
SBA = Small Business Administration.

Although the FAA was able to identify a size standard for repair
stations to be considered small, the FAA lacks financial data to
determine if foreign repair stations meet the applicable size standard.
Instead, the FAA provides an analysis estimating the total cost to
small entities based on available data for domestic repair stations. A
2011 antidrug and alcohol misuse prevention rule for domestic repair
stations analyzed the effect on domestic repair stations that were
small entities and subcontractors those entities used. That rule based
the regulatory flexibility determination analysis on a Transportation
Security Administration (TSA) study that used Dun & Bradstreet data to
estimate the share of domestic repair stations that would be considered
small entities.\44\ The findings show that 93.28% of domestic repair
stations would be classified as small entities. Extrapolating this
estimate to the 977 foreign repair stations used in the analysis of
this rulemaking results in 912 foreign repair stations that could be
considered small entities.\45\ The FAA seeks comment and requests data
on how this rulemaking will affect part 145 foreign repair stations.
---------------------------------------------------------------------------

\44\ Final Rule, Supplemental Regulatory Flexibility
Determination, Antidrug and Alcohol Misuse Prevention Programs for
Personnel Engaged in Specified Aviation Activities: Supplemental
Regulatory Flexibility Determination, 76 FR 12559 (Mar. 8, 2011).
\45\ The calculation is as follows: 977*.9328 = 911.31. This
estimate is rounded up to get 912.
---------------------------------------------------------------------------

1.5 Projected Reporting, Recordkeeping, and Other Compliance
Requirements
Based on the total nominal cost of the rule to repair stations,
$126.5 million, the cost per repair station is $129,473.\46\
Multiplying the cost per repair station by the estimated 912 repair
stations that are small entities results in a total cost to small
entities of $118.1 million over five years. Table 3 shows the estimated
annualized compliance costs by category.
---------------------------------------------------------------------------

\46\ $126,495,150/977 = $129,473.03.

Table 3--Average Cost of Compliance and Small Entities
------------------------------------------------------------------------
Average
Number of annualized
Category small entities cost per
repair station
------------------------------------------------------------------------
Program and Training Development & 912 $444.69
Maintenance Cost.......................
Training................................ 912 3,689.98
Testing Cost............................ 912 6,366.88
Paperwork............................... 912 10,624.49
------------------------------------------------------------------------
\1\ Based on a baseline of existing practices and using a 7% discount
rate.

1.6 Significant Alternatives Considered
Alternative 1--the Status Quo--The status quo represents a
situation in which the FAA would not propose to require part 145
foreign repair stations to test their safety-sensitive maintenance
personnel for drugs and alcohol. This alternative is counter to
Congressional direction and, therefore, rejected.
Alternative 2--The FAA would work through the International Civil
Aviation Organization (ICAO) to create an international standard for
drug and alcohol testing of maintenance personnel at repair stations.
While the FAA is willing to work with ICAO, 49 U.S.C. 44733(d)(2)
requires the FAA to expeditiously proceed with this rulemaking. In
other words, Congress directed the FAA to establish a program
acceptable to the Administrator; working through ICAO to create an
international standard may not expeditiously meet this intention given

[[Page 85150]]

the time, resources, and scope of the adoption of an international
standard.

C. 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 U.S.
Pursuant to these Acts, the establishment of standards is not
considered an unnecessary obstacle to the foreign commerce of the U.S.,
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. This rulemaking is
congressionally mandated. The FAA assessed the potential effect of this
proposed rule and determined that it ensures the safety of the American
public while noting some countries and foreign trade associations, in
their comments, voiced their opposition to an FAA drug and alcohol
testing standard for foreign repair stations. In comments to the ANPRM,
as discussed in section III.B.2. of this preamble, these countries
cited failure of the legislation to recognize each nation's sovereignty
and cited that the International Civil Aviation Organization (ICAO)
would be the appropriate vehicle to set worldwide standards. As a
result, this rulemaking could create an obstacle or retaliation to
foreign commerce. The FAA invites comments on this issue.

D. 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
(in 1995 dollars) 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 $177.0 million in lieu of $100
million. This proposed rule does not contain such a mandate; therefore,
the requirements of title II of the Act do not apply.

E. 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. According to the 1995
amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an
agency may not collect or sponsor the collection of information, nor
may it impose an information collection requirement unless it displays
a currently valid Office of Management and Budget (OMB) control number.
This action contains the following amendments to the existing
information collection requirements previously approved under OMB
Control Number 2120-0535. As required by the Paperwork Reduction Act of
1995 (44 U.S.C. 3507(d)), the FAA has submitted these proposed
information collection amendments to OMB for its review.
Summary: Under Sec. Sec. 120.1, 120.123 and 120.227, the proposed
rule would extend the drug and alcohol testing regulations beyond the
territory of the U.S. The proposal would require all employees of part
145 repair stations located outside of the U.S. who perform maintenance
on part 121 air carrier aircraft to be subject to a drug and alcohol
testing program. Of the approximately 977 part 145 repair stations
located throughout 66 foreign countries, it is likely that all of these
repair stations would continue to perform maintenance on part 121 air
carrier aircraft. If the repair stations continue to perform
maintenance for part 121 air carrier aircraft, each repair station
would be required to obtain an Antidrug and Alcohol Misuse Prevention
Program Operations Specification. In addition, each repair station
located outside the territory of the U.S. would be required to provide
drug and alcohol testing program management information system (MIS)
data.
Use: The information would be used by the part 145 repair station
located outside of the territory of the U.S. to certify implementation
and maintenance of a drug and alcohol testing program. The FAA's Drug
Abatement Compliance and Enforcement Inspectors would use this
information to identify those foreign repair stations with an active
program for inspection scheduling. Inspections are used to verify
compliance with the drug and alcohol testing regulations and
requirements. In addition, the Drug Abatement Division would use the
annual MIS data reported to calculate the annual random drug and
alcohol testing rates in the aviation industry.
Respondents (including number of): There are currently 977 part 145
certificated repair stations located outside the territory of the U.S.
Frequency: Part 145 repair stations located outside the territory
of the U.S. would provide information for program certification only
once; however, these repair stations would also incur annual program
maintenance: e.g., updates to the programs per new guidance; the random
pool list; and the overall testing process. The aggregate annual
testing data would be provided electronically through the Department of
Transportation's Drug and Alcohol Management Information System.
---------------------------------------------------------------------------

\47\ Based on the previous PRA, the FAA assumes 16 hours in the
first year to establish the testing program and one hour to register
with the FAA's Drug Abatement Division. Therefore, 17 hours are
required for the first year. For each year after, the recurring time
to update and maintain the testing list will be 16 hours. The
average over five years results in the 16.2 hours per year.
\48\ Office and Administrative Support Workers, All Other (SOC
43-9119) NAICS 481000--Air Transportation, May 2020; Mean Hourly
wage <a href="https://www.bls.gov/oes/2020/may/oes439199.htm:">https://www.bls.gov/oes/2020/may/oes439199.htm:</a> Includes Fringe
Benefits.
---------------------------------------------------------------------------

Annual Burden Estimate
1. Burden for Program Certification and Annual Program Maintenance

----------------------------------------------------------------------------------------------------------------
Number of Hours per
Documentation repair stations repair station Hourly wage Total cost
----------------------------------------------------------------------------------------------------------------
Antidrug and Alcohol Misuse Prevention 977 \47\ 16.2 \48\ $26.90 $425,757
Program Operations Specification...........
----------------------------------------------------------------------------------------------------------------

[[Page 85151]]

2. Burden for Annual Test Data

----------------------------------------------------------------------------------------------------------------
\49\ Total Time per Average yearly
Documentation records record (hours) Hourly wage Total cost cost \50\
----------------------------------------------------------------------------------------------------------------
Training records................ 656,720 0.25 \51\ $34.47 $5,659,285 $1,131,857
Records related to the alcohol 335,354 5.0 34.47 57,798,262 11,559,652
and drug collection process,
test results, refusal to test,
employee dispute records, SAP
reports, follow-up tests.......
-------------------------------------------------------------------------------
Total....................... 992,074 N/A N/A 63,457,547 12,691,509
----------------------------------------------------------------------------------------------------------------

To calculate the number of drug and alcohol training records, the
FAA took the 2021 data showing 147,194 mechanics and 29,439 supervisors
and accounted for a four percent growth rate over five years.
Accounting for these rates results in an initial first year total of
159,205 mechanics and 31,842 supervisors. This is a total of 191,047
employees. In the first year all mechanics and supervisors will take
anti-drug and alcohol training. These are two separate trainings. This
results in 191,047 records for anti-drug training and 191,047 for
alcohol training. In addition, supervisors will have to take an
additional supervisor reasonable cause/reasonable suspicion
determinations training for drugs and alcohol. This adds another 63,684
records since they are two separate trainings as well.\52\ Therefore,
in the first year, there will be a total of 445,778 records.\53\
---------------------------------------------------------------------------

\49\ Estimated number of records from 2018 to 2022.
\50\ Average yearly cost is calculated by dividing total cost by
five years.
\51\ Information and Records Clerks (SOC 43-4000) NAICS 481000--
Air Transportation, May 2020: Mean Hourly Wage <a href="https://www.bls.gov/oes/2020/may/naics3_481000.htm#43-0000:">https://www.bls.gov/oes/2020/may/naics3_481000.htm#43-0000:</a> Includes Fringe Benefits.
\52\ 31,842*2 = 63,684.
\53\ 191,047 + 191,047 + 63,684 = 445,778.
---------------------------------------------------------------------------

For year two and beyond, for drug records, the total records
reflect the increase in new mechanics and supervisors which will be
required to take the drug training. Using the growth rate this results
in 6,368 mechanics and 1,274 supervisors for a total of 7,642 records.
The 1,274 new supervisors will also have to take the reasonable cause/
reasonable suspicion determinations for drugs training. In addition,
there is recurrent reasonable cause/reasonable suspicion determinations
for drugs training that all supervisors will have to take every 12 to
18 months. In year two, this results in 31,842 supervisors taking the
recurring trainings. Thus, the records for drug training in year two is
40,758.\54\ In addition, new mechanics and supervisors will be required
to take alcohol training and supervisors will have to take the
reasonable cause/reasonable suspicion determinations for alcohol
training. This adds another 8,916 records. There is no recurrent
alcohol training for supervisors. Therefore, in year two the total
records are 49,674.\55\
---------------------------------------------------------------------------

\54\ 7,642 + 1,274 + 31,842 = 40,758.
\55\ 40,758 + 8,916 = 49,674.
---------------------------------------------------------------------------

The same calculation for year two is repeated for years three
through five. There are 51,662 records in year three, 53,729 in year
four, and 55,877 in year five. This results in a total of 656,720 total
training records over the five years.\56\
---------------------------------------------------------------------------

\56\ 445,778 + 49,674 + 51,662 + 53,729 + 55,877 = 656,720.
---------------------------------------------------------------------------

To calculate the number of records related to alcohol and drug
collection, the FAA sums the number of pre-employment drug tests,
random drug and alcohol tests, and post-accident, reasonable cause,
return to duty, and follow-up drug and alcohol tests per year beginning
in year two. First, for drug testing, every new employee performing
maintenance will be required to take a pre-employment drug test but not
an alcohol test. Second, the FAA estimates 25 percent of current
employees performing maintenance will be randomly drug tested per year.
Third, there will be post-accident, reasonable cause, return to duty,
or follow-up testing. The FAA estimates 1.70 percent of employees
tested in a given year will be tested again under this category. The
total drug tests over the five years is 247,521.\57\
---------------------------------------------------------------------------

\57\ This is broken down by category as 32,452 pre-employment
drug tests, 210,932 random drug tests, 4,137 post-accident,
reasonable cause, return to duty, and follow-up tests.
---------------------------------------------------------------------------

For alcohol testing, no pre-employment alcohol testing is required.
The other two categories of alcohol testing will be the same as for
drug testing. However, the FAA estimates random drug testing will occur
at a rate of 10 percent of current employees and 4.10 percent for post-
accident, reasonable cause, return to duty, and follow-up tests. The
total alcohol tests over the five years is 87,833.\58\ Taking the sum
of drug and alcohol tests results in 335,354 records related to alcohol
and drug collection.
---------------------------------------------------------------------------

\58\ This is broken down by category as 84,373 random drug tests
and 3,460 post-accident, reasonable cause, return to duty, and
follow-up tests.
---------------------------------------------------------------------------

The agency is soliciting comments to--
(1) Evaluate whether the proposed information requirement is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of collecting information on those who are
to respond, including by using appropriate automated, electronic,
mechanical, or other technological collection techniques or other forms
of information technology.
Individuals and organizations may send comments on the information
collection requirement to the address listed in the ADDRESSES section
at the beginning of this preamble by February 5, 2024. Comments also
should be submitted to the Office of Management and Budget, Office of
Information and Regulatory Affairs, Attention: Desk Officer for FAA,
New Executive Office Building, Room 10202, 725 17th Street NW,
Washington, DC 20053.

F. International Compatibility

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
determined that there are no ICAO Standards and Recommended Practices
that correspond to these proposed regulations.

G. Environmental Analysis

FAA Order 1050.1F identifies FAA actions that are categorically
excluded

[[Page 85152]]

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
5-6.6f for regulations and involves no extraordinary circumstances.

VI. Executive Order Determinations

A. Executive Order 13132, Federalism

The FAA has analyzed this proposed rule under the principles and
criteria of Executive Order 13132, Federalism. The agency has
determined that this action would 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, would not have
federalism implications.

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

The FAA analyzed this proposed rule under Executive Order 13211,
Actions Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use. The agency has determined that it would not be a
``significant energy action'' under the Executive order and would not
be likely to have a significant adverse effect on the supply,
distribution, or use of energy.

C. Executive Order 13609, Promoting International Regulatory
Cooperation

Executive Order 13609, Promoting International Regulatory
Cooperation, 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 could create
differences in international regulatory requirements. The FAA
acknowledges that the FAA may need to revisit certain international
agreements, as discussed in section IV.D and invites comments on this
issue.

VII. Additional Information

A. Comments Invited

The FAA invites interested persons to participate in this
rulemaking by submitting written comments, data, or views. The FAA also
invites comments relating to the economic, environmental, energy, or
federalism impacts that might result from adopting the proposals in
this document. The most helpful comments reference a specific portion
of the proposal, explain the reason for any recommended change, and
include supporting data. To ensure the docket does not contain
duplicate comments, commenters should submit only one time if comments
are filed electronically or commenters should send only one copy of
written comments if comments are filed in writing.
The FAA will file in the docket all comments it receives, as well
as a report summarizing each substantive public contact with FAA
personnel concerning this proposed rulemaking. Before acting on this
proposal, the FAA will consider all comments it receives on or before
the closing date for comments. The FAA will consider comments filed
after the comment period has closed if it is possible to do so without
incurring expense or delay. The FAA may change this proposal in light
of the comments it receives.
Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments
from the public to better inform its rulemaking process. DOT posts
these comments, without edit, including any personal information the
commenter provides, to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, as described in the
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at
<a href="https://www.dot.gov/privacy">https://www.dot.gov/privacy</a>.

B. Confidential Business Information

Confidential Business Information (CBI) is commercial or financial
information that is both customarily and actually treated as private by
its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552),
CBI is exempt from public disclosure. If your comments responsive to
this NPRM contain commercial or financial information that is
customarily treated as private, that you actually treat as private, and
that is relevant or responsive to this NPRM, it is important that you
clearly designate the submitted comments as CBI. Please mark each page
of your submission containing CBI as ``PROPIN.'' The FAA will treat
such marked submissions as confidential under the FOIA, and they will
not be placed in the public docket of this NPRM. Submissions containing
CBI should be sent to the person in the FOR FURTHER INFORMATION CONTACT
section of this document. Any commentary that the FAA receives which is
not specifically designated as CBI will be placed in the public docket
for this rulemaking.

C. Electronic Access and Filing

A copy of this NPRM, all comments received, any final rule, and all
background material may be viewed online at <a href="https://www.regulations.gov">https://www.regulations.gov</a>
using the docket number listed above. A copy of this proposed rule will
be placed in the docket. Electronic retrieval help and guidelines are
available on the website. It is available 24 hours each day, 365 days
each year. An electronic copy of this document may also be downloaded
from the Office of the Federal Register's website at <a href="https://www.federalregister.gov">https://www.federalregister.gov</a> and the Government Publishing Office's website
at <a href="https://www.govinfo.gov">https://www.govinfo.gov</a>. A copy may also be found at the FAA's
Regulations and Policies website at <a href="https://www.faa.gov/regulations_policies">https://www.faa.gov/regulations_policies</a>.
Copies may also be obtained by sending a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW, Washington, DC 20591, or by calling (202) 267-9677.
Commenters must identify the docket or notice number of this
rulemaking.
All documents the FAA considered in developing this proposed rule,
including economic analyses and technical reports, may be accessed in
the electronic docket for this rulemaking.

List of Subjects in 14 CFR Part 120

Alcoholism, Air carriers, Alcohol abuse, Alcohol testing, Aviation
safety, Drug abuse, Drug testing, Operators, reporting and
recordkeeping requirements, Safety, Safety-sensitive, Transportation.

The Proposed Amendment

In consideration of the foregoing, the Federal Aviation
Administration proposes to amend 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,
44733, 45101-45105, 46105, 46306.

0
2. Amend Sec. 120.1 by:
0
a. Revising paragraph (c);
0
b. Redesignating paragraph (d) as paragraph (e);
0
c. Adding new paragraph (d).
The revision and addition read as follows:

[[Page 85153]]

Sec. 120.1 Applicability.

* * * * *
(c) All part 145 certificate holders located in the territory of
the United States who perform safety-sensitive functions and elect to
implement a drug and alcohol testing program under this part.
(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.
0
3. Revise Sec. 120.5 to read as follows:

Sec. 120.5 Procedures.

Each employer having a drug and alcohol testing program under this
part must ensure that all drug and alcohol testing conducted pursuant
to this part complies with the procedures set forth in 49 CFR part 40
and any exemptions issued to that employer by the Department of
Transportation in accordance with 49 CFR 40.7.
0
4. Add Sec. 120.9 to read as follows:

Sec. 120.9 Waivers for Part 145 Repair Stations Outside the Territory
of the United States.

(a) A part 145 repair station whose employees perform safety-
sensitive maintenance functions on part 121 air carrier aircraft
outside the territory of the United States may request a waiver from
the Administrator from any requirements under 14 CFR part 120, subpart
E or F, if specific requirements of the subpart are inconsistent with
the laws of the country where the repair station is located.
(b) Each waiver request must include, at a minimum, the following
elements:
(1) Information about your organization, including your name and
mailing address and, if you wish, other contact information such as a
fax number, telephone number, or email address;
(2) The specific section or sections of this part from which you
seek a waiver;
(3) The reasons why granting the waiver would not adversely affect
the prevention of accidents and injuries resulting from the use of
prohibited drugs or the misuse of alcohol by employees;
(4) A copy of the law that is inconsistent with the provision(s) of
this part from which a waiver is sought;
(5) An explanation of how the law is inconsistent with the
provision(s) of this part from which a waiver is sought, and;
(6) A description of the alternative means that will be used to
achieve the objectives of the provision that is the subject of the
waiver or, if applicable, a justification of why it would be impossible
to achieve the objectives of the provision in any way.
(c) Each petition for a waiver must be submitted to the Federal
Aviation Administration, Office of Aerospace Medicine, Drug Abatement
Division (AAM-800), 800 Independence Avenue SW, Washington, DC 20591.
0
5. Amend Sec. 120.117 by:
0
a. Revising paragraph (a)(5);
0
b. Redesignating paragraph (a)(6) as paragraph (a)(7);
0
c. Adding new paragraph (a)(6);
0
d. Revising paragraph (c);
The revisions and additions read as follows:

Sec. 120.117 Implementing a drug testing program.

(a) * * *

------------------------------------------------------------------------
If you are . . . You must . . .
------------------------------------------------------------------------

* * * * * * *
(5) A part 145 certificate holder Obtain an Antidrug and Alcohol
located inside the territory of the Misuse Prevention Program
United States who has your own drug Operations Specification by
testing program. 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 part 145 repair station located Obtain an Antidrug and Alcohol
outside the territory of the United Misuse Prevention Program
States whose employees perform safety- Operations Specification by
sensitive maintenance functions on contacting your Principal
part 121 air carrier aircraft. Maintenance Inspector.

* * * * * * *
------------------------------------------------------------------------

* * * * *
(c) If you are an individual or company that intends to provide
safety-sensitive services by contract to a part 119 certificate holder
with authority to operate under part 121 and/or part 135 of this
chapter, an operation 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, use the following chart to determine
what you must do if you opt to have your own drug testing program.

------------------------------------------------------------------------
If you are . . . You must . . .
------------------------------------------------------------------------
(1) A part 145 certificate holder (i) Have an Antidrug and
located inside the territory of the Alcohol Misuse Prevention
United States and opt to conduct your Program Operations
own program under this part. Specification or register with
the FAA, Office of Aerospace
Medicine, Drug Abatement
Division (AAM-800), 800
Independence Avenue SW,
Washington, DC 20591,
(ii) Implement an FAA drug
testing program no later than
the date you start performing
safety-sensitive functions for
a part 119 certificate holder
with authority to operate
under parts 121 or 135, or
operator as defined in Sec.
91.147 of this chapter, and
(iii) Meet the requirements of
this subpart as if you were an
employer.

[[Page 85154]]

(2) A part 145 repair station located (i) Obtain an Antidrug and
outside the territory of the United Alcohol Misuse Prevention
States whose employees perform Program Operations
maintenance functions on part 121 air Specification by contacting
carrier aircraft. your Principal Maintenance
Inspector.
(ii) Implement a drug testing
program acceptable to the
Administrator no later than
one year from [EFFECTIVE DATE
OF REGULATION], or if company
operations begin more than one
year after [EFFECTIVE DATE OF
REGULATION], implement a drug
testing program acceptable to
the Administrator no later
than the date you start
operations, and
(iii) Meet the requirements of
this subpart in a manner
acceptable to the
Administrator.
(3) A contractor who opts to implement (i) Register with the FAA,
a testing program under this part. Office of Aerospace Medicine,
Drug Abatement Division (AAM-
800), 800 Independence Avenue
SW, Washington, DC 20591,
(ii) Implement an FAA drug
testing program no later than
the date you start performing
safety-sensitive functions for
a part 119 certificate holder
with authority to operate
under parts 121 or 135, or
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, and
(iii) Meet the requirements of
this subpart as if you were an
employer.
------------------------------------------------------------------------

* * * * *
0
6. Amend Sec. 120.123 by revising paragraphs (a) introductory text,
(a)(1), and (b) to read as follows:

Sec. 120.123 Drug testing outside the territory of the United States.

(a) Except for those testing processes applicable to persons
testing pursuant to Sec. 120.1(d), no part of the testing process
(including specimen collection, laboratory processing, and MRO actions)
shall be conducted outside the territory of the United States.
(1) Except for those persons testing pursuant to Sec. 120.1(d),
each employee who is assigned to perform safety-sensitive functions
solely outside the territory of the United States shall be removed from
the random testing pool upon the inception of such assignment.
* * * * *
(b) Except for those persons testing pursuant to Sec. 120.1(d),
the provisions of this subpart shall not apply to any individual who
performs a function listed in Sec. 120.105 by contract for an employer
outside the territory of the United States.
0
7. Amend Sec. 120.225 by:
0
a. Revising paragraph (a)(5);
0
b. Redesignating paragraph (a)(6) as paragraph (a)(7);
0
c. Adding new paragraph (a)(6);
0
d. Revising paragraph (c); and
0
e. Revising paragraphs (d) introductory text and (d)(1).
The revisions and addition read as follows:

Sec. 120.225 How to implement an alcohol testing program.

(a) * * *

------------------------------------------------------------------------
If you are . . . You must . . .
------------------------------------------------------------------------

* * * * * * *
(5) A part 145 certificate holder Obtain an Antidrug and Alcohol
located inside the territory of the Misuse Prevention Program
United States who has your own alcohol Operations Specification by
testing program. 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 part 145 repair station located Obtain an Antidrug and Alcohol
outside the territory of the United Misuse Prevention Program
States who performs safety-sensitive Operations Specification by
maintenance functions on part 121 air contacting your Principal
carrier aircraft. Maintenance Inspector.

* * * * * * *
------------------------------------------------------------------------

* * * * *
(c) If you are an individual or company that intends to provide
safety-sensitive services by contract to a part 119 certificate holder
with authority to operate under part 121 and/or part 135 of this
chapter, or an operator as defined in Sec. 91.147 of this chapter, use
the following chart to determine what you must do if you opt to have
your own drug testing program.

[[Page 85155]]

(ii) Implement an FAA alcohol
testing program no later than
the date you start performing
safety-sensitive functions for
a part 119 certificate holder
with the authority to operate
under parts 121 and/or 135, or
operator as defined in Sec.
91.147 of this chapter, and
(iii) Meet the requirements of
this subpart as if you were an
employer.
(2) Are a part 145 repair station (i) Obtain an Antidrug and
located outside of the territory of Alcohol Misuse Prevention
the United States who performs Program Operations
maintenance functions on part 121 air Specification by contacting
carrier aircraft. your Principal Maintenance
Inspector.
(ii) Implement an alcohol
testing program acceptable the
Administrator no later than
one year from [EFFECTIVE DATE
OF REGULATION], or if company
operations begin more than one
year after [EFFECTIVE DATE OF
REGULATION], implement an
alcohol testing program
acceptable to the
Administrator no later than
the date you start operations,
and
(iii) Meet the requirements of
this subpart in a manner
acceptable to the
Administrator.
(3) A contractor....................... (i) Register with the FAA,
Office of Aerospace Medicine,
Drug Abatement Division (AAM-
800), 800 Independence Avenue
SW, Washington, DC 20591,
(ii) Implement an FAA drug
testing program no later than
the date you start performing
safety-sensitive functions for
a part 119 certificate holder
with authority to operate
under parts 121 or 135, or
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, and
(iii) Meet the requirements of
this subpart as if you were an
employer.
------------------------------------------------------------------------

(d) To obtain an antidrug and alcohol misuse prevention program
operations specification:
(1) You must contact your FAA Principal Operations Inspector or
Principal Maintenance Inspector. Provide him/her with the following
information:
* * * * *
0
8. Amend Sec. 120.227 by revising paragraphs (a) introductory text,
(a)(1), and (b) to read as follows:

Sec. 120.227 Employees located outside the U.S.

(a) Except for those persons testing pursuant to Sec. 120.1(d), no
covered employee shall be tested for alcohol misuse while located
outside the territory of the United States.
(1) Except for those persons testing pursuant to Sec. 120.1(d),
each covered employee who is assigned to perform safety-sensitive
functions solely outside the territory of the United States shall be
removed from the random testing pool upon the inception of such
assignment.
* * * * *
(b) Except for those persons testing pursuant to Sec. 120.1(d),
the provisions of this subpart shall not apply to any person who
performs a safety-sensitive function by contract for an employer
outside the territory of the United States.

Issued in Washington, DC.
Susan E. Northrup,
Federal Air Surgeon.
[FR Doc. 2023-26394 Filed 12-6-23; 8:45 am]
BILLING CODE 4910-13-P

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