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Rule2024-29837

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

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Published

December 18, 2024

Effective

January 17, 2025

Issuing agencies

Transportation DepartmentFederal Aviation Administration

Abstract

This final rule requires certificated repair stations located outside the territory of the United States (U.S.) whose employees perform safety-sensitive maintenance functions on certain air carrier aircraft to conduct alcohol and controlled substance testing in a manner acceptable to the Administrator and consistent with the applicable laws of the country in which the repair station is located. The final rule directs the repair station to comply 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, as proposed. However, this final rule also allows foreign governments, on behalf of certificated repair stations within their territories, and individual foreign repair stations subject to the rule to obtain the Administrator's recognition of a compatible alternative that contains minimum criteria in lieu of compliance with certain components of the Drug and Alcohol Testing Program.

Full Text

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[Federal Register Volume 89, Number 243 (Wednesday, December 18, 2024)]
[Rules and Regulations]
[Pages 103416-103451]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-29837]

[[Page 103415]]

Vol. 89

Wednesday,

No. 243

December 18, 2024

Part VI

Department of Transportation

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Federal Aviation Administration

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14 CFR Part 120

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

Federal Register / Vol. 89 , No. 243 / Wednesday, December 18, 2024 /
Rules and Regulations

[[Page 103416]]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 120

[Docket No.: FAA-2012-1058; Amdt. No. 120-3]
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: Final rule.

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SUMMARY: This final rule requires certificated repair stations located
outside the territory of the United States (U.S.) whose employees
perform safety-sensitive maintenance functions on certain air carrier
aircraft to conduct alcohol and controlled substance testing in a
manner acceptable to the Administrator and consistent with the
applicable laws of the country in which the repair station is located.
The final rule directs the repair station to comply 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, as proposed.
However, this final rule also allows foreign governments, on behalf of
certificated repair stations within their territories, and individual
foreign repair stations subject to the rule to obtain the
Administrator's recognition of a compatible alternative that contains
minimum criteria in lieu of compliance with certain components of the
Drug and Alcohol Testing Program.

DATES: This rule is effective January 17, 2025, except for amendatory
instructions 3, 8, and 11, which are effective December 20, 2027. The
compliance date for this final rule is December 20, 2027.

ADDRESSES: For information on where to obtain copies of rulemaking
documents and other information related to this final rule, see ``How
to Obtain Additional Information'' in the SUPPLEMENTARY INFORMATION
section of this document.

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#fb9f898e9c9a999a8f9e969e958fbb9d9a9ad59c948d"><span class="__cf_email__" data-cfemail="b3d7c1c6d4d2d1d2c7d6ded6ddc7f3d5d2d29dd4dcc5">[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. Executive Summary
II. Authority for This Rulemaking
III. Background
A. History
B. Legislative and Rulemaking Actions
IV. Discussion of the Final Rule
A. Testing Under 14 CFR Part 120 and 49 CFR Part 40
B. Recognition of Existing Requirements or Testing Programs
V. Responses to Comments
A. Sovereignty of Other Nations and Existing Programs
B. Final Rule Effective and Compliance Date
C. Government Resources
D. Specific Conflicts With Foreign Laws
E. Human Rights Concerns
F. Waivers and Exemptions
G. Bilateral Aviation Safety Agreements
H. Safety Case
I. Financial, Technical, and Operational Concerns
J. Extending Testing to Part 121 Maintenance Personnel
K. EU and International Civil Aviation Organization (ICAO)
L. Scope of Safety-Sensitive Functions
M. Miscellaneous Comments
V. Severability
VI. Regulatory Notices and Analyses
A. Summary of Regulatory Impact Analysis
B. Regulatory Flexibility Act
C. International Trade Impact Assessment
D. Unfunded Mandate Assessment
E. Paperwork Reduction Act
F. International Compatibility
G. Environmental Analysis
VII. 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
VIII. Additional Information
A. Electronic Access and Filing
B. Small Business Regulatory Enforcement Fairness Act

I. Executive Summary

This final rule implements section 308(d)(2) of the FAA
Reauthorization Act of 2012 (codified in 49 U.S.C. 44733) by requiring
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 an alcohol and controlled substances testing program
determined acceptable to the FAA Administrator and consistent with the
applicable laws of the country in which the repair station is located.
The NPRM proposed a foreign repair station subject to the rule
(i.e., a foreign repair station that performs safety-sensitive
maintenance on part 121 air carrier aircraft) would need to implement
an alcohol and drug testing program that meets the requirements of 14
CFR part 120 and 49 CFR part 40, which is adopted as proposed in this
final rule. In addition, in response to feedback received during the
comment period of the proposed rulemaking, the final rule establishes a
process for foreign governments, on behalf of certificated repair
stations within their territories, and individual foreign repair
stations subject to the rule to obtain a waiver based on the
Administrator's recognition of a country or foreign repair station's
existing requirements or testing program(s) promulgated under the laws
of the country as a compatible alternative that contains minimum
elements of 14 CFR part 120.
Affected foreign repair stations that receive a waiver based on
recognition by the Administrator will be relieved from comprehensive
compliance with subparts E and F of 14 CFR part 120 (in turn, providing
relief from 49 CFR part 40) and will not need to seek further waivers
or exemptions from 14 CFR part 120 or 49 CFR part 40 under this final
rule. All other foreign repair stations subject to the rule will be
required to meet 14 CFR part 120 and 49 CFR part 40, subject to any
waivers or exemptions that a repair station may obtain. Foreign repair
stations subject to the rule must comply not later than December 20,
2027. After this date, part 121 operators will be prohibited from using
a foreign repair station employee to perform safety-sensitive
maintenance outside the U.S. who is not covered by a waiver based on
recognition by the Administrator or an FAA-mandated drug and alcohol
testing program.

[[Page 103417]]

This rulemaking will affect approximately 977 part 145 repair
stations in about 65 foreign countries.\1\ Since the rule provides
several pathways for compliance, the FAA estimated low and high-cost
cases. The low-cost case assumes all countries with certificated repair
stations will submit a request for a waiver based on recognition. The
total unadjusted unit cost to the industry and the FAA to submit one
request is $2,569. At a seven percent discount rate, the adjusted total
cost for all 65 countries to submit this request is $116,690, $64,540
annualized, and $123,459 at a three percent discount rate, $64,521
annualized. In the high-cost case, costs to foreign repair stations
consist of developing an FAA-mandated drug and alcohol testing program,
training, testing of safety-sensitive maintenance employees for drug
and alcohol, and annual reporting. The total present value cost to
foreign repair stations over five years, at a seven percent discount
rate sums to $49.6 million or $12.1 million annualized. At a three
percent discount rate, the present value total cost to foreign repair
stations is $55.6 million or $12.1 million annualized.
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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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In the high-cost case, the FAA will incur costs associated with
documenting these foreign repair stations and performing oversight and
surveillance for those complying with FAA-mandated drug and alcohol
testing requirements under part 120 and 49 CFR part 40. These costs
only apply to compliance with the rule and not if a country or repair
station has an approved waiver based on recognition.\2\ Total cost to
FAA over five years, at seven percent present value, sums to $6.5
million with an annualized cost of $1.6 million. At three percent
present value, total cost is $7.4 million with an annualized cost of
$1.6 million.
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\2\ For those foreign governments or repair stations that
receive a waiver based on recognition, FAA will rely on the foreign
government or repair station to ensure compliance with the
recognized programs and notify FAA when the standards or conditions
change.
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The table below shows the estimated costs to both part 145 repair
stations and FAA over five years. The estimated total cost of the final
rule, at seven percent present value, is $56.1 million and $63.0
million at 3 percent present value.

Table 1--Cost to Part 145 Foreign Repair Stations and FAA Over 5 Years
[Millions--2022 U.S. dollars] *
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Program,
training Testing (drug and Annual FAA Total cost Total cost
Year development, & Training alcohol) reports oversight (7% PV) (3% PV)
maintenance costs
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1.................................................... $0.3 $7.6 $0.0 $2.1 $0.0 $9.4 $9.8
2.................................................... 0.3 1.0 4.5 6.8 2.1 12.8 13.8
3.................................................... 0.3 1.0 4.5 6.8 2.1 12.0 13.5
4.................................................... 0.3 1.0 4.6 6.9 2.1 11.3 13.1
5.................................................... 0.3 1.0 4.6 6.9 2.1 10.6 12.8
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Total............................................ 1.6 11.7 18.2 29.4 8.2 56.1 63.0
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* These numbers are subject to rounding error.

II. Authority for This Rulemaking

The FAA's authority to issue rules on aviation safety is found in
Title 49 of the United States Code. Subtitle I, section 106 describes
the authority of the FAA Administrator. Subtitle VII, Aviation
Programs, describes in more detail the scope of the FAA'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 final 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 final 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 required that the notice of proposed rulemaking be
finalized. Further, section 302(b) of the FAA Reauthorization Act of
2024 (Pub. L. 118-63) requires that within 18 months of enactment of
that Act, the Administrator shall issue a final rule carrying out the
requirements of section 2112(b) of the FAA Extension, Safety, and
Security Act of 2016.

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. These regulations
are promulgated under 14 CFR part 120 and 49 CFR part 40. The preamble
to the NPRM provided a full history of the FAA and OST regulations.\3\
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\3\ Drug and Alcohol Testing of Certificated Repair Station
Employees Located Outside of the United States, 88 FR 85137, 85139
(Dec. 7, 2023).
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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 (2012 Act).\4\ Section 308(d)(2) of the 2012 Act, implemented in
49 U.S.C. 44733, requires that the Administrator publish a proposed
rule requiring that all part 145 repair station employees responsible
for safety-sensitive

[[Page 103418]]

maintenance functions on part 121 air carrier aircraft outside the U.S.
to be subject to an alcohol and controlled \5\ 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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\4\ Public Law 112-95 (Feb. 14, 2012).
\5\ As noted in the NPRM, 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.
45102, ``controlled substances'' should be intended to mean the
FAA's current definition of ``drug'' as based off the definition of
``controlled substances'' provided by 49 U.S.C. 45101. 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.
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2. Advance Notice of Proposed Rulemaking
In response to the congressional mandate, the FAA published an
advance notice of proposed rulemaking (ANPRM) on March 17, 2014.\6\ The
comment period for the ANPRM closed July 17, 2014. The FAA received 74
substantive comments of both support and opposition. The FAA discussed
and responded to the comments received as part of the NPRM.\7\
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\6\ Drug and Alcohol Testing of Certain Maintenance Provider
Employees Located Outside of the United States ANPRM, 79 FR 14621
(Mar. 17, 2014). 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).
\7\ 88 FR 85137 at 85140.
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3. FAA Extension, Safety, and Security Act of 2016
After the FAA published the ANPRM, Congress enacted the FAA
Extension, Safety, and Security Act of 2016 (2016 Act),\8\ which
reemphasized Congress's 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 pursuant to 49 U.S.C.
44733(d)(2) 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.\9\ The NPRM was promulgated in accordance
with such direction.
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\8\ Public Law 114-190 (Jul. 15, 2016).
\9\ Section 2112(b) of Public Law 114-190.
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4. FAA Reauthorization Act of 2024
After the FAA published the NPRM, Congress enacted the FAA
Reauthorization Act of 2024 (2024 Act),\10\ which again reemphasized
Congress's prioritization of drug and alcohol programs for foreign
repair station employees who perform maintenance on part 121 air
carrier aircraft. Specifically, section 302(b) directed the FAA to
issue a final rule within 18 months of the date of the enactment of the
2024 Act that carries out the requirements of section 2112(b) of the
2016 Act.
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\10\ Public Law 118-63 (May 16, 2024).
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IV. Discussion of the Final Rule

A. Testing Under 14 CFR Part 120 and 49 CFR Part 40

In the NPRM, the FAA proposed to fulfill Congress's mandate by
requiring certificated part 145 repair stations located outside the
territory of the U.S. whose employees perform safety-sensitive
maintenance functions on part 121 air carrier aircraft to obtain and
implement a drug and alcohol testing program, consistent with the
applicable laws of the country in which the repair station is
located.\11\ Specifically, the FAA proposed to 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, covering employees who perform maintenance
functions on part 121 air carrier aircraft. If a part 145 repair
station located outside the U.S. could not meet one or all requirements
in 49 CFR part 40 (i.e., DOT's requirements), the FAA noted that the
part 145 repair station could apply for an exemption using the existing
process described in 49 CFR 40.7. Similarly, if a part 145 repair
station located outside the U.S. could not meet one or all requirements
in 14 CFR part 120 (i.e., the FAA's requirements), the FAA proposed
that the repair station may apply for a waiver in accordance with
proposed 120.9.
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\11\ 88 FR 85137.
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1. 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)
To effectuate this testing framework, the FAA proposed three
revisions to 14 CFR 120.1, which are all adopted in this final rule.
Specifically, Sec. 120.1(c) will 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. New paragraph (d) will expand the applicability of domestic
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, effective on the compliance
date of December 20, 2027. Finally, current 14 CFR 120.1(d) is
redesignated as paragraph (e).
The FAA proposed adding specific instructions to affected part 145
repair stations outside the territory of the U.S. on how to meet the
necessary requirements to implement a drug and alcohol testing program
to 14 CFR 120.117 (Drug Testing Program Requirements) and 120.225
(Alcohol Testing Program Requirements), which are adopted by this final
rule. First, Sec. 120.117(a)(5) will specify that 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. New Sec. 120.117(a)(6) within
the table will 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
OpSpec A449 in their Operations Specifications by contacting the repair
station's Principal Maintenance Inspector. In turn, current 14 CFR
120.117(a)(6) is redesignated as paragraph (a)(7).
Similarly, this final rule revises 14 CFR 120.117(c)(1) to specify
the requirements in that paragraph are applicable only to part 145
certificate holders located inside the territory of the U.S. New
paragraph (c)(2) will require the applicable repair station located
outside the territory of the U.S. to (1) obtain an OpSpec A449 in their
Operations Specifications by contacting the repair station's Principal
Maintenance Inspector, (2) implement the drug testing program no later
than three years from the publication date of this final rule,\12\ and
(3) meet the

[[Page 103419]]

requirements of 14 CFR part 120, subpart E. In turn, current 14 CFR
120.117(c)(2) is redesignated as paragraph (c)(3).
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\12\ The NPRM proposed that a foreign repair station beginning
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. The final rule removes this
language because it is superfluous. As revised, 14 CFR 117(c)(2)
requires all affected foreign repair stations to implement a drug
testing program no later than three years from the publication date
of the final rule. Accordingly, an affected foreign repair station
that begins operations more than three years after the publication
date of the final rule must immediately comply with this
requirement, regardless of whether they are starting operations as a
new part 145 repair station.
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This final rule adopts similar amendments to the implementation
tables set forth in 14 CFR 120.225(a) and (c). Specifically, in 14 CFR
120.225(a), this final rule: revises 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.; adds new
paragraph (a)(6) to include the requirements for a part 145 repair
station located outside the territory of the U.S. that performs safety-
sensitive maintenance functions on part 121 air carrier aircraft; and
redesignates current paragraph (a)(6) as paragraph (a)(7). Likewise, in
14 CFR 120.225(c), this final rule: revises paragraph (c)(1) to specify
the requirements in that paragraph are applicable only to part 145
certificate holders located inside the territory of the U.S.; adds new
paragraph (c)(2) to require the applicable repair station located
outside the territory of the U.S. to (1) obtain an OpSpec A449 in its
Operations Specifications by contacting the repair station's Principal
Maintenance Inspector, (2) implement the alcohol testing program no
later than three years from the publication date of this final
rule,\13\ and (3) meet the requirements of 14 CFR part 120, subpart E;
and redesignates current paragraph (c)(2) as paragraph (c)(3).
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\13\ This final rule implements the same non-substantive
revisions described in footnote 11 to the alcohol testing program
requirements set forth in 14 CFR 120.225(c)(2).
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Relatedly, this final rule adopts minor grammatical changes to the
headings of the table set forth in 14 CFR 120.117(c) and 14 CFR
120.225(c) and introductory text of 120.117(c)(1) and (3) and
120.225(c)(1) and (3) to conform with the heading revisions. This final
rule also adopts the correct introductory text in Sec. 120.225(d),
which is currently and inadvertently blank in the regulations.
Finally, the FAA notes that, in light of the expanded flexibilities
for waivers based on recognition, subsequently discussed in section
IV.B of this preamble, this final rule makes technical corrections to
the regulatory text in Sec. Sec. 120.117 and 120.225. These revisions
are discussed in that section.
2. Conforming Amendments To Facilitate Drug and Alcohol Procedures
Outside the United States (Sec. Sec. 120.123 and 120.227)
This final rule adopts conforming amendments to 14 CFR 120.123 and
120.227, which currently effectively restrict any drug and alcohol
programs from implementation outside of the U.S. Specifically, this
final rule adds 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 adopted 14 CFR 120.1(d) from
applicability of those regulations restricting drug and alcohol testing
outside the territory of the U.S.
3. Exemptions and Waivers to Drug and Alcohol Program Requirements
(120.5 and 120.9)
As previously discussed in the NPRM, the FAA seeks to avoid
situations whereby the regulations of the FAA are inconsistent with
laws in other sovereign countries and acknowledges there are many
unique scenarios associated with the establishment and implementation
of drug and alcohol testing programs outside of the U.S. Therefore, the
FAA explained in the NPRM that a part 145 repair station could apply
for an exemption from 49 CFR part 40 using exemption processes existing
therein. In turn, the FAA proposed 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. To streamline and efficiently address
potential international legal conflicts between foreign laws and the
FAA's own regulations, the FAA proposed to add waiver authority in new
14 CFR 120.9 to allow repair stations located outside of the U.S. to
request waivers from specific provisions of 14 CFR part 120. The FAA
maintains 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. Therefore, these provisions are adopted as proposed.
4. Effective and Compliance Date
In the NPRM, the FAA proposed to require the applicable repair
station located outside the territory of the U.S. to obtain an OpSpec
A449 and implement a drug and alcohol 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). The FAA received comments
on the compliance date and reevaluated the amount of time that would be
necessary to come into compliance with the regulations adopted by this
final rule (see section IV.C.3 of this preamble for further discussion
on the effective date comments). Commenters raised valuable
implementation and operational concerns including time for a foreign
repair station to prepare and submit waiver or exemption requests, time
for the FAA to hire and train new employees, and time for the FAA and
DOT to process a potentially large volume of waiver and/or exemption
requests. With the introduction of expanded flexibilities for waivers
based on recognition, the FAA expects a foreign government or an
individual repair station seeking relief will need more time than
proposed to prepare and submit a request.
Based on these comments, the FAA has set the effective date of this
rule to January 17, 2025 and will extend the delay for compliance for
three years from the date of publication. Accordingly, the compliance
date for affected foreign repair stations is December 20, 2027. The FAA
has made changes to the regulatory text to ensure requests are received
with sufficient time for the FAA to respond to requests for waivers. If
a repair station's existing program is not recognized pursuant to 14
CFR 120.10 and it does not have a testing program that meets the
requirements of 14 CFR part 120 and 49 CFR part 40 or an approved
waiver and/or exemption for these parts, the repair station will be
prohibited from performing safety-sensitive maintenance functions on
part 121 air carrier aircraft and the part 121 air carrier is
prohibited from using the part 145 repair station to perform aircraft
maintenance. The FAA encourages those seeking a waiver or an exemption
to do so as early as possible. This is especially important during the
final year before the compliance date, considering the large number of
requests the FAA and DOT expect to receive during that period.
The FAA acknowledges DOT has a separate process for granting
exemptions from 49 CFR part 40. Under 49 CFR part 5, DOT requires an
exemption request to be submitted at least 60 days before the proposed

[[Page 103420]]

effective date of the exemption, unless good cause is shown in that
petition. Because FAA and DOT may need to coordinate on requests that
involve a waiver and exemption from the same repair station, the FAA
recommends foreign repair stations requiring an exemption make their
request at least 90 days before the compliance date of this rule,
December 20, 2027, or 90 days before a repair station intends to
perform safety-sensitive maintenance functions on part 121 air carrier
aircraft after the compliance date.

B. Recognition of Existing Requirements or Testing Programs

The FAA acknowledges that the relief in the proposed waiver program
was insufficient and expanding the waiver eligibility is appropriate
and consistent with the foundational intent of the Congressional
mandate, particularly given the overwhelming number of comments the FAA
received in response to the NPRM urging the FAA to, first, recognize
the sovereignty of foreign nations and their individual legal contexts
and, second, work more collaboratively with foreign country governments
to achieve the ends of the legislation.\14\ To be clear, as previously
discussed, this final rule maintains the option for a foreign repair
station to implement an alcohol and drug testing program that meets the
requirements of 14 CFR part 120 and 49 CFR part 40 as proposed in the
NPRM. However, the final rule also expands on the flexibilities in the
proposed waiver program in response to these public comments. To avoid
potential duplication and unnecessary paperwork due to multiple waiver
requests, the FAA is enabling direct engagements with foreign
governments that represent the interests of foreign repair stations in
their territories by establishing a process in new Sec. 120.10 for
foreign governments, on behalf of repair station operators within their
territories, to obtain a waiver for those operators based on the
Administrator's recognition of existing requirements promulgated under
the laws of the country as a compatible alternative subject to minimum
criteria. Proposed waiver section 120.9 contained a requirement that a
foreign repair station submit ``[a] description of the alternative
means that will be used to achieve the objectives of the provision that
is the subject of the waiver.'' Based on consideration of that
provision and comments received, in Sec. 120.10, the FAA is expanding
the opportunity for foreign governments and foreign repair stations to
rely on existing programs as demonstrations of the alternative means
used to meet the objectives of part 120, provided certain criteria are
met. Foreign governments, and foreign repair stations subject to
foreign governance, are in the best position to assess and explain the
laws imposed within their borders. The FAA anticipates foreign
governments will pursue this waiver option to relieve individual
foreign repair stations from the compliance burdens, unnecessary
duplication, and potential conflicts between U.S. requirements and
foreign laws where the U.S. and the foreign government share an
objective of an alcohol- and drug-free workplace when performing
safety-sensitive duties. However, if a foreign government chooses not
to avail itself of this option, Sec. 120.10 will provide an individual
foreign repair station discretion to make its own waiver request based
on recognition of an existing testing program that meets the criteria
identified in the regulation. If an individual foreign repair station
demonstrates its existing program contains the criteria outlined in
Sec. 120.10, the Administrator will issue a waiver.
---------------------------------------------------------------------------

\14\ These comments are summarized and adjudicated in section
V.A of this preamble.
---------------------------------------------------------------------------

Therefore, the FAA finds this waiver based on recognition will
alleviate the burdens associated with the difficulties of identifying
conflicts between foreign laws and the regulations. Specifically, this
final rule adopts new Sec. 120.10, Waiver based on recognition of a
foreign government's existing requirements or an existing testing
program of a part 145 repair station outside the territory of the U.S.
This section will set forth the general requirements to obtain the
waiver, including: the compatibility elements, process and procedures
for the request, disposition of the request, effect and validity, and
compliance measures.
General. Section 120.10(a) will provide that a foreign government
may request a waiver on behalf of repair stations within its territory
based on the Administrator's recognition of the country's existing
requirements (e.g., an existing testing regime) as a compatible
alternative that meets the minimum key elements set out in Sec.
120.10(b) (subsequently explained). In the event a foreign government
chooses not to make a request on behalf of the repair stations in its
country, Sec. 120.10 also allows individual foreign repair stations to
follow this process to similarly request a waiver based on recognition
of an existing testing program by demonstrating the program is a
compatible alternative that meets the key elements set out in the
regulation. By requiring that a compatible alternative contain the
criteria set forth in Sec. 120.10(b), the FAA intends to ensure a
foreign government's existing requirements meet the same safety intent
\15\ of the FAA's regulations regarding drug and alcohol testing for
safety-sensitive employees, including those that perform maintenance on
part 121 air carrier aircraft. To note, if granted a waiver based on
recognition of a compatible alternative, a foreign repair station will
be required to comply with the recognized existing testing program.
---------------------------------------------------------------------------

\15\ See 14 CFR 120.3, stating the purpose of part 120 is to
establish a program designed to help prevent accidents and injuries
resulting from the use of prohibited drugs or the misuse of alcohol
by employees who perform safety-sensitive functions in aviation.
---------------------------------------------------------------------------

Compatibility. The criteria a foreign government's existing
requirements or testing program must contain to obtain a waiver are set
forth in Sec. 120.10(b) and include:

--A testing protocol or established consequences used to detect or
deter, or both, employees who are responsible for safety-sensitive
maintenance on part 121 air carrier aircraft from misusing alcohol and
using drugs.\16\
---------------------------------------------------------------------------

\16\ The FAA recognizes that each country may present a range of
drug laws or requirements, and may indicate testing of drugs that
differ from those tested for within the U.S. The term ``drugs'' is
intended to broadly address the category of drugs tested for by a
foreign government or individual foreign repair station.
---------------------------------------------------------------------------

--An education or training program or materials that explain the impact
and consequences of misusing alcohol and using drugs while performing
safety-sensitive maintenance.
--The method used to rehabilitate and ensure that safety-sensitive
maintenance employees who return to work on part 121 air carrier
aircraft after a drug or alcohol test violation or consequence no
longer misuse alcohol or use drugs.

Similar to the proposed and finalized waiver element in Sec. 120.9
that requires an applicant to provide ``a description of the
alternative means that will be used to achieve the objectives of the
provision that is the subject of the waiver,'' the FAA finds these
criteria acceptable to ensure the proposed compatible alternative meets
the same safety intent of the existing rules regarding drug and alcohol
testing for safety-sensitive employees in the U.S., including those
that perform maintenance on part 121 air carrier aircraft. The FAA
acknowledges the laws and requirements of a country will impact how a
government or foreign repair station meets these criteria. The
following discussion on each element

[[Page 103421]]

may help a foreign government or an individual repair station
demonstrate how its own requirements or testing program meet these
elements.
Effective testing protocols or established consequences.
The circumstances under which a foreign repair station conducts
testing or applies consequences for prohibited conduct are critical to
detecting or deterring, or both, employees from misusing alcohol and
using drugs while at work and performing safety-sensitive maintenance
on part 121 air carrier aircraft. Testing may include pre-employment,
post-accident, reasonable suspicion, or random. Pre-employment drug
testing acts as a gatekeeper and critical tool for identifying and
keeping drug users out of safety-sensitive positions in the aviation
industry. Post-accident drug and alcohol testing assists regulated
employers in determining if drugs and/or alcohol are contributing
factors to an accident. Employers conduct reasonable cause/suspicion
drug and alcohol testing when there is credible evidence and direct
observations by a trained supervisor indicating an employee may be
using drugs or misusing alcohol while performing safety-sensitive
duties. Random drug and alcohol testing contributes as an effective
deterrent discouraging safety-sensitive employees from using drugs or
alcohol while at work. These methods of testing have made a long-
standing positive impact on the FAA's domestic program, but the FAA
notes they may not be the only means for detection and deterrence that
ensures safety-sensitive maintenance personnel are not using drugs or
misusing alcohol. Because laws permitting testing and circumstances may
vary from country to country, this nonexhaustive list provides examples
of the types of testing that may be recognized as part of a compatible
alternative under Sec. 120.10.
If a foreign government or an individual repair station indicates
it conducts testing, a request for waiver based on recognition of a
compatible alternative must include a description of the testing
protocols (see new Sec. 120.10(c)(1), detailing documentation
necessary in a recognition package). As an example, the U.S. domestic
testing program is standardized to ensure the integrity and identity of
the specimen, and scientific accuracy of the test result. The testing
must include strict specimen collection procedures to minimize the
opportunity an individual would have to tamper with their specimen.
Another system safeguard includes a regimented process to document the
handling and storage of a specimen from the time it is collected until
the time it is released to the facility that conducts the analysis. A
properly documented collection process links donors to their specimen
and provides proof of all specimen activity between collection and
analysis. The FAA's domestic testing protocols and specimen analysis
are established in 49 CFR part 40 and are consistent with the U.S.
Department of Health and Human Service's laboratory protocols. The FAA
acknowledges that testing protocols identified in a request for waiver
based on recognition may depart from the requirements of 49 CFR part
40; however, requestors must thoroughly explain how those testing
protocols ensure the integrity and identity of the specimen, and
scientific accuracy of any test results.
As noted, while testing is the most efficient method for detection
and deterring employees from using drugs and misusing alcohol while
performing safety-sensitive maintenance, it may not be the only means.
As reiterated by commenters to the NPRM, established consequences for
drug use or alcohol misuse can be an effective deterrent when testing
is limited by the laws of the foreign country. For example, established
consequences may include laws providing for the vigorous detection,
prosecution, and punishment (e.g., imprisonment) of drug use or alcohol
misuse. Several commenters identified such consequences and their
deterrent effects.\17\ If a request for waiver based on recognition
relies on established consequences, the FAA would anticipate receiving
information from a foreign government or a foreign repair station
demonstrating either its own testing systems and protocols or its laws
and regulations limit or do not permit testing of the repair station's
safety-sensitive maintenance employees.
---------------------------------------------------------------------------

\17\ See section V.E. of this preamble.
---------------------------------------------------------------------------

An education or training program or materials.
It is imperative to safety that safety-sensitive maintenance
employees understand the personal consequences of drug use and alcohol
misuse and the professional consequences of failing to comply with the
requirements of their employer's drug and alcohol policies. In the
U.S., for drug testing, an employer must conduct initial training for
safety-sensitive employees that includes the effects and consequences
of drug use on personal health, safety, and work environment, as well
as the manifestations and behavioral cues that may indicate drug use
and abuse.\18\ Similarly, for alcohol testing, each employer must
provide each employee with educational materials that explain the
alcohol misuse requirements and the employer's policies and procedures
with respect to meeting those requirements.\19\ Employee training in
the U.S. is a one-time requirement; however, the FAA believes it is a
good practice to provide employees with new information when it changes
and remind them of the requirements when performing covered functions.
While the FAA does not offer its own training materials for employers
to use, training and its materials can take many forms (e.g., virtual
or in-person instruction, handouts). The FAA expects an acceptable
training and education program required under Sec. 120.10(b)(2) would
ensure employees and their supervisors understand the safety risk of
drug use and alcohol misuse, as well as the consequences of a drug and/
or alcohol testing violation. The FAA understands a request for waiver
based on recognition may not include the actual training or materials
intended for use with safety-sensitive maintenance employees. However,
the request must include what topics the training and/or materials will
cover.
---------------------------------------------------------------------------

\18\ 14 CFR 120.115(c).
\19\ 14 CFR 120.223(a).
---------------------------------------------------------------------------

Method to rehabilitate and ensure that safety-sensitive maintenance
employees who return to work on part 121 air carrier aircraft after a
drug or alcohol test violation or consequence no longer misuse alcohol
or use drugs.
In a country where it is permissible for a safety-sensitive
maintenance employee to return to work after using drugs or misusing
alcohol, pursuant to Sec. 120.10(b)(3), a request for waiver based on
recognition must include a process for treatment and/or education.
Further evaluation or testing is critical to ensure the employee does
not return to perform maintenance on part 121 air carrier aircraft and
continue to use drugs and/or misuse alcohol. The FAA's domestic program
allows a safety-sensitive employee to be evaluated by a qualified
substance abuse professional (SAP) after failing a drug or alcohol test
or refusing a test. Once the employee demonstrates successful
compliance with the SAP's treatment and/or education, the employee may
return to performing safety-sensitive functions after passing a return-
to-duty test conducted by their employer.\20\ After returning to work,
the employer must conduct the unannounced follow-up testing for a
minimum of one year or up to five years, depending on the SAP's

[[Page 103422]]

directions.\21\ The return-to-duty process, including unannounced
follow-up testing, functions to reduce the probability of recurrence
through monitoring that employee to ensure the behavior does not
repeat. If an employee fails another required drug or alcohol test or
there is evidence of on-duty use, the safety-sensitive maintenance
employee is permanently disqualified from performing maintenance for
any employer regulated under 14 CFR part 120.\22\
---------------------------------------------------------------------------

\20\ 14 CFR 120.109(e) and 120.217(e).
\21\ 49 CFR 40.307(d).
\22\ 14 CFR 120.111(e) and 120.221(b).
---------------------------------------------------------------------------

Because of the potential for repeated risk, the request for waiver
based on recognition must describe or demonstrate what methods are used
to ensure safety-sensitive maintenance employees who return to work on
part 121 air carrier aircraft after a drug or alcohol test violation or
consequence are monitored to detect or deter, or both, repeat behavior.
Requests for recognition (Sec. 120.10(c)). This section will
require certain information to be included in a request for waiver
based on recognition, including the name, title, address, email
address, and telephone number of the primary person to be contacted
regarding review of the request (Sec. 120.10(c)(1)(i)); documentation
of the foreign government's existing requirements demonstrating that
the requirements contain the key elements of part 120 as described in
paragraph (b), including, if appropriate, copies of applicable laws,
regulations, and other requirements carrying the force of law (Sec.
120.10(c)(1)(ii)); any appropriate data, records, or supporting
explanation for the Administrator to consider in determining whether
the foreign government's existing requirements contain those key
elements (Sec. 120.10(c)(1)(iii)); and a statement that the requestor
intends to notify the Administrator within 30 days of changing any key
elements as described in paragraph (b) that form the basis of the
Administrator's recognition and describe those change(s) to the key
elements (Sec. 120.10(c)(1)(iv)). Requests must be submitted to the
FAA's Office of Aerospace Medicine, Drug Abatement Division (Sec.
120.10(c)(2)) at least 90 days before the waiver needs to take effect
(Sec. 120.10(c)(3)). The FAA plans to update the website shortly after
publication of the final rule to facilitate submission of information
that a foreign government or foreign repair station needs to provide
for FAA to consider a waiver based on recognition.
Disposition (Sec. 120.10(d)). If a foreign government's request
complies with Sec. 120.10(c) and demonstrates its requirements meet
the key elements described in Sec. 120.10(b), the FAA will recognize
the country's requirements as a compatible alternative, pursuant to
Sec. 120.10(d) and issue a waiver. To note, the FAA may request
additional information from the foreign government or the foreign
repair station to fully understand and evaluate the alternative testing
program or consequence to ensure the information meets the
requirements, and under Sec. 120.10(d)(1) will retain authority to
make such inquiries. The FAA envisions such a request as a
collaborative process with the requestor.
Effect and Validity (Sec. 120.10(e)). A waiver based on
recognition in the form of an FAA-issued letter will be provided to the
requestor if the request is accepted. If the requestor is a foreign
government, the waiver will apply to all FAA-certificated foreign
repair stations that are in the territory of that country and subject
to the recognized compatible alternative. The FAA expects the foreign
government to distribute the FAA-issued letter to all foreign repair
stations in its territory so each is aware of the waiver based on
recognition and can maintain a copy. Pursuant to Sec. 120.10(e)(2),
the Administrator's waiver based on recognition will remain valid so
long as the compatible alternative retains the key elements that formed
the basis of the Administrator's decision.
Compliance (Sec. 120.10(f)). If granted waiver based on
recognition of a compatible alternative, a foreign government would
ensure that foreign repair stations subject to its authority comply
with the recognized existing requirements (i.e., follow the laws in
their own country). As previously explained, the FAA will issue a
letter indicating the waiver based on recognition to a government or a
foreign repair station. Foreign repair stations that have obtained a
waiver based on recognition of an existing testing program, or that are
covered by a foreign government's recognized compatible alternative
pursuant to Sec. 120.10(e)(1), must maintain the FAA-issued letter on
file documenting the waiver in accordance with Sec. 120.10(f)(1). The
letter serves as documentation the certificated repair station's
safety-sensitive maintenance employees are either subject to a testing
protocol or established consequences, or both, deemed acceptable to the
FAA Administrator and may be provided to a part 121 air carrier as
program documentation of compliance. Finally, pursuant to Sec.
120.10(f)(2), the FAA may modify, suspend, or withdraw its waiver based
on recognition by the Administrator when it is no longer valid (e.g.,
if the recognized existing requirements are changed to remove key
elements that were previously acceptable to the Administrator); when a
foreign repair station fails to implement a testing program consistent
with its recognition (e.g., if a repair station obtains recognition
based on certain key elements but then fails to implement those
elements in a testing program); or when the FAA determines that a
foreign government or foreign repair station has not provided the
notification within 30 days of changes to the key elements that form
the basis of the Administrator's recognition, as described in Sec.
120.10(c)(1)(iv).
Conforming Amendments. In the applicability section for part 120,
Sec. 120.1, the final rule includes a new exception in Sec. 120.1(d),
which clarifies that Sec. 120.5 and subparts E and F of 14 CFR part
120 do not apply to part 145 certificate holders outside the territory
of the United States who perform safety-sensitive maintenance functions
on part 121 air carrier aircraft that have obtained a waiver based on
recognition pursuant to Sec. 120.10.
In the tables in Sec. Sec. 120.117(a) and (c) and Sec. Sec.
120.225(a) and (c), the final rule clarifies that the information does
not apply to a part 145 repair station that has obtained a waiver based
on recognition by the Administrator of existing requirements or a
testing protocol or established consequences (or both) pursuant to new
Sec. 120.10 as adopted by this final rule. The sections now more
clearly explain that a foreign repair station that has not received a
waiver based on recognition of existing requirements promulgated under
the laws of their country must meet the requirements of 14 CFR part 120
as if it was an employer as defined in the regulation, and in
accordance with any applicable waivers as described under Sec. 120.9
or any exemptions granted under 49 CFR 40.7. This final rule does not
change the meaning of these sections from what was proposed; however,
with the introduction of expanded flexibilities for waivers, the FAA
found it necessary to clarify that this language will not apply to
foreign repair stations that are covered under a waiver based on
recognition by the Administrator issued pursuant to 14 CFR 120.10.

V. Responses to Comments

The NPRM published on December 7, 2023, with the original comment
period closing on February 5, 2024. On January 16, 2024, a coalition of
15 organizations requested to extend the comment period

[[Page 103423]]

an additional 90 days. In response, the FAA extended the comment period
by an additional 60 days to April 5, 2024.\23\ This extension provided
a total of one hundred twenty (120) days for comment submission.
---------------------------------------------------------------------------

\23\ Drug and Alcohol Testing of Certificated Repair Station
Employees Located Outside of the United States; NPRM extension of
comment period, 89 FR 4584 (Jan. 26, 2024).
---------------------------------------------------------------------------

The FAA received 74 comment submissions in response to the NPRM
during the 120-day comment period, including two requests for an
extension of the comment period and two out-of-scope comments. Of the
70 remaining comments germane to the rulemaking, 17 generally supported
the NPRM, 40 generally opposed the NPRM, and 13 stated no position but
provided their comments and concerns or asked questions about the
proposal. These comments addressed multiple aspects of the proposal and
are further summarized alongside the FAA's responses in the sections
that follow. The 17 supporting commenters included two airline
mechanics unions (International Brotherhood of Teamsters (Teamsters)
and Transportation Trades Department, AFL-CIO (TTD)), a pilots' union
(Allied Pilots Association (APA)), a transit employee union (Transport
Workers Union of America (TWU)), a trade association (National Drug &
Alcohol Screening Association (NDASA)), a Substance Abuse Professional
(SAP) Directory service (SAPList), a software provider (Nexus 33 Group
LLC), and 10 individuals.
The 40 opposing commenters included thirteen foreign repair
stations (Air New Zealand Limited, Chromalloy, Excel Aerospace Pte,
HAECO Component Overhaul, Hong Kong Aero Engine Services Limited, IHI
Corporation, JAL Engineering Company Limited, MTU Maintenance Zhuhai,
Panasonic Avionics Corp-Line, Taikoo Shandong Aircraft Engineering Co.,
Taikoo Xiamen Aircraft Engineering Co., Taikoo Xiamen Landing Gear
Services, and Elbe Flugzeugwerke), five trade associations
(Aeronautical Repair Station Association (ARSA), Airlines for America
(A4A), Cargo Airline Association (CAA), General Aviation Manufacturers
Association (GAMA), and Regional Airline Association (RAA)), four
airline manufacturers (AIRBUS Commercial Aircraft, The Boeing Company,
Boeing Research and Technology, and GE Aerospace), three foreign trade
associations (Airlines for Europe (A4E), Bundesverband der Deutschen
Luft- und Raumfahrtindustrie e.V./German Aerospace Industries
Association (BDLI), and International Air Transport Association
(IATA)), three foreign airlines (Deutsche Lufthansa AG, EL AL Israel
Airlines, and Qantas Airways Limited), two foreign governmental
aviation organizations (European Commission Directorate General for
Mobility and Transport (DG MOVE) and UK Department for Transport (UK
DFT)), one charter airline (Capital City Jet Center), one maintenance
provider (MRO Holdings, Inc.), one manufacturer (MOOG Inc.), one U.S.
repair station (Fortner Engineering & Manufacturing, Inc.),\24\ and six
individuals.
---------------------------------------------------------------------------

\24\ ARSA and Fortner Engineering & Manufacturing, Inc.
submitted nearly identical comments with no substantive differences.
Because these comments originated with ARSA, the final rule refers
to these separate submissions as ARSA's comments.
---------------------------------------------------------------------------

The 13 commenters that did not state an overt position on the NPRM
included seven foreign repair stations (Airfoil Services, Goodrich THY
TEKN[Idot]K SERV[Idot]S MERKEZ[Idot] LTD. [Scedil]T[Idot], Honeywell do
Brasil, Seman Peru, Sharp Aviation K Inc,\25\ ST Engineering Aerospace
Services Company, and Tamagawa Aero Systems), one employment screening
services provider (New Era Drug Testing), one SAP service provider
(American Substance Abuse Professional, Inc.), and three individuals.
---------------------------------------------------------------------------

\25\ Sharp Aviation K Inc provided two comments on the NPRM.
---------------------------------------------------------------------------

The following sections summarize and respond to comments received
on the NPRM.

A. Sovereignty of Other Nations and Existing Programs

Thirty-one commenters, including ARSA, Air New Zealand Limited,
Airbus Commercial Aircraft, A4A, A4E, Deutsche Lufthansa AG, EL AL
Israel Airlines Ltd., GE Aerospace, GAMA, BDLI, IATA, Qantas Airlines,
The Boeing Company, and UK DFT, raised the issue of national
sovereignty as a basis for their opposition to the NPRM. These
commenters generally disagreed with the NPRM's approach to implementing
the statutory mandate. Commenters including A4A, RAA, IATA, ARSA, and
EL AL Israel Airlines commented that the proposal's drug and alcohol
testing program requirement may conflict or be inconsistent with the
laws of other sovereign nations. In their view, the proposal failed to
consider these pre-existing, complex, and diverse legal contexts that
operate outside the United States. Commenters provided numerous
examples of conflicts between various foreign laws and the requirements
of 49 CFR part 40 and 14 CFR part 120, which are discussed in section
IV.D of this preamble. These commenters argued that the statutory
mandate prohibits the FAA from proposing regulations on persons outside
the territory of the U.S. that would facially conflict with the laws of
sovereign nations. They also argued that the statute does not permit
the FAA to shift the burden of avoiding inconsistencies with foreign
laws to the part 145 repair stations that would need to seek waivers or
exemptions.
A4A and IATA further encouraged the FAA to directly engage with
foreign governments that have different methods of deterring drug and
alcohol use and abuse that may accomplish the FAA's objectives by other
means, stating the imposition of testing obligations in some countries
may run contrary to, or be unnecessary in consideration of, the
country's cultural context and its various laws. A4A commented the FAA
should establish a process through which a foreign repair station may
request that the U.S. government and the respective government of the
repair station cooperate and come to an agreement to ensure subject
repair stations in those countries be compliant with all illicit drug
and alcohol abuse laws, both foreign and domestic. Airbus also
commented that U.S. authorities should issue exemptions and waivers at
the level of each country without involving each part 145 certificated
repair station to minimize the administrative burden and associated
costs. Similarly, ARSA suggested the FAA find another country's laws
acceptable with no further action if the country has an existing
program or has harsh laws or other deterrents for drug and alcohol use.
Capital City Jet Center in Canada also stated the FAA should either
work to develop a standard or require proof a repair station is covered
by their governing country's existing testing program. Given the
variations in these laws from country to country, commenters including
The Boeing Company generally agreed that a ``one-size-fits-all''
approach would be impossible to implement and enforce, and that FAA
should instead accept local testing regimes and defer to local
authorities. To summarize, these commenters urged the FAA to consider
accepting a government's determination of compliance and acceptability.
Several commenters, including A4A, ARSA, and IATA, suggested that
the proposal would shift the burden of understanding and complying with
foreign laws and regulations from the FAA to foreign citizens, which
would violate national sovereignty. Specifically, ARSA stated, ``the
congressional directive was clear: the

[[Page 103424]]

rule on its face cannot conflict with a sovereign nation's laws.
Placing the burden on a certificate holder to prove its laws conflict
with the proposed aviation safety regulations is an unacceptable
application of legislative plain language.'' Commenters further argued
that the public is unable to assess the legal ramifications of
extending 14 CFR part 120 and 49 CFR part 40 beyond the boundaries of
the U.S., and that foreign repair station and maintenance facility
owners are citizens, not international legal experts capable of
competently seeking waivers and exemptions from the regulations.
Commenters stated that placing this burden on a certificate holder to
prove its laws conflict with the proposal is an unacceptable
application of legislative plain language. They would like to see the
government make the determination of compliance and acceptability, not
the foreign citizen.
Conversely, the Teamsters and APA, who supported the rule as
proposed, stated the FAA should not expand the NPRM to allow a foreign
repair station to present an existing or equivalent testing program to
meet the requirements of the proposed rule. The Teamsters stated DOT's
reliance on existing standards to address the use of alcohol and
controlled substances for domestic covered employees necessitates an
identical application for any further employees entered in the testing
program. Another supporting commenter, NDASA, agreed the requirements
for foreign repair stations should mirror those drug and alcohol
programs in the United States. They further stated already existing
testing programs and advances in international testing in the 30 years
since the FAA originally proposed testing outside of the U.S. will make
this rulemaking easier to implement.
The FAA disagrees that the NPRM's approach fails to consider the
legal contexts of foreign nations, resulting in conflict and
inconsistency. Section 44733(d)(2) explicitly required the proposed
rule requiring an alcohol and controlled substances testing program
determined acceptable by the Administrator to be promulgated consistent
with the applicable laws of the country in which the repair station is
located. The FAA maintains that the proposed rule considered legal
contexts of foreign nations because the FAA proposed a pathway under
which a foreign repair station could be consistent with both the FAA
drug and alcohol testing regulations and the laws of the country.
Specifically, the FAA proposed (and this final rule adopts) a pathway
that would allow a foreign repair station to apply for exemptions and
waivers under 49 CFR part 40 and 14 CFR part 120, respectively, to
facilitate compliance with the consistency requirement. Therefore, the
FAA maintains that this rulemaking does not, as commenters suggested,
impose rigid requirements without regard to local legal contexts. Nor
does the NPRM's approach improperly burden the owners of foreign repair
stations with responsibility for understanding and complying with FAA
regulations. Affected foreign repair stations must hold an FAA-issued
part 145 certificate to be subject to the regulations promulgated in
this rule. Accordingly, these foreign repair stations must already
understand and comply with the requirements of 14 CFR part 145
concerning aircraft maintenance, repair, and operation organizations.
The FAA separately addresses commenters' arguments concerning the
burdens of seeking waivers and exemptions below.
However, the FAA acknowledges each country impacted by this rule
may have existing testing protocols or consequences under local laws
that could meet the safety intent of the FAA's domestic requirements to
detect or deter, or both, employees who are responsible for safety-
sensitive maintenance functions from misusing alcohol and using drugs.
Further, the FAA acknowledges the discrepancy between legal
contexts of a foreign country and FAA regulations, some of which may be
so complex that a singular means of compliance may not be adequately
covered solely by that proposed in the NPRM. Therefore, as previously
discussed, this final rule includes more flexible waivers whereby a
foreign government, on behalf of its repair station operators within
its territory, may seek a waiver based on recognition of the foreign
government's existing requirements or testing program. As explained,
the waiver is also available to an individual foreign repair station,
which may seek recognition of an existing testing program promulgated
under the laws of the country or present consequences under local laws
as a compatible alternative that demonstrate it meets the intent of the
regulation. Section IV.B of this preamble discussed this waiver option,
including the necessary criteria to demonstrate a testing program or
consequences that meet the intent of the existing rules regarding drug
and alcohol testing for safety-sensitive employees and the procedures
to seek such recognition. The FAA finds that this more flexible waiver
option comprehensively considers the unique laws and sovereignty of
other countries and responds to commenters' concerns of this nature.

B. Final Rule Effective and Compliance Date

In the NPRM, the FAA proposed to require the applicable repair
station located outside the territory of the U.S. to obtain an OpSpec
A449 and implement a drug and alcohol 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). A4A requested the
compliance date of this final rule should be held in abeyance for
repair stations seeking waivers or exemptions, regardless of whether
the FAA adopts the option for a government to make a request on behalf
of its repair stations. If a government makes the request on behalf of
its repair stations, A4A stated the compliance date of the regulations
should be held in abeyance in a country until a final agreement has
been made and becomes effective. They argued this would help avoid a
scenario where one repair station in a country must comply with the FAA
testing requirements where another does not because they are waiting on
a decision, avoids requiring a repair station to set up intermittent
costly processes that must later be revised to conform to the
agreement, and avoids a situation where a repair station may be out of
compliance with a local or FAA regulation while waiting on a pending
request, which may put the repair station in difficult contractual or
insurance policy non-compliance situations. For similar reasons, A4A
requested the FAA fully adhere to its statutory limitation through a
waiver/exemption process that ensures all inconsistencies are addressed
before it imposes its program on foreign repair stations. They stated
the one-year delay in compliance date proposed is based on no
supporting data the FAA and DOT have the resources or ability to
adjudicate hundreds to thousands of requests. CAA also had concerns
with the waiver process, stating that the FAA needs to properly address
whether the proposed rule's final compliance date will be substantially
far enough in the future to accommodate the hundreds of exemption
requests, and the agency should not arbitrarily enforce the regulations
while exemption applications are pending or delayed at the hands of the
agency.
The FAA acknowledges the concern regarding the rule's compliance
date

[[Page 103425]]

and agrees with commenters that more time is needed to implement the
requirements of this rule. With the introduction of waivers based on
recognition of the foreign government's existing requirements or
testing program, the FAA expects a foreign government or an individual
repair station seeking relief will need sufficient time to prepare and
submit a request, and the FAA and DOT will need additional time to
create a new FAA International Compliance and Enforcement Branch, and
to process waiver and exemption requests. The FAA disagrees, however,
that compliance with these regulations by a foreign repair station
should be held in abeyance if their request for a waiver from 14 CFR
part 120 is pending with the FAA, or if their request for an exemption
is pending with DOT. The extended three-year compliance date and the
requirement to make a request at least 90 days before a waiver is
needed will provide sufficient time to make and/or respond to requests
made pursuant to Sec. Sec. 120.9 and 120.10, and no abeyance will be
necessary.
As discussed in section IV.A of this preamble, the FAA has set the
effective date of this rule to January 17, 2025 and set the compliance
date to December 20, 2027. The FAA has made changes to the regulatory
text to ensure requests are received with sufficient time to respond to
requests for waivers requested pursuant to Sec. Sec. 120.9 and 120.10.

C. Government Resources

Commenters including A4A, A4E, ARSA, CAA, EL AL Airlines, and IHI
expressed concern that the DOT and the FAA do not have the ability to
manage the number of waivers and exemptions submitted with their own
resources, or to respond to requests in a timely manner. Further, these
commenters explained that delays in obtaining waivers and exemptions
could increase the costs of implementing a testing program.
Specifically, A4A stated their concern the FAA and DOT do not have the
expertise and ability to fully adjudicate the impact of foreign laws
and inconsistency with the FAA program and would like the FAA to
recognize it will give full deference to the determination of foreign
authorities regarding the inconsistency of laws for the purpose of
compliance with FAA's program.
The FAA acknowledges commenters' concerns regarding the burden on
the FAA and DOT because of waiver and exemption requests associated
with this rule. In response to concerns regarding burden and for
reasons discussed above, the FAA has expanded waiver eligibility
allowing a foreign government, on behalf of the repair stations in its
country, or an individual foreign repair station to provide a written
request for a waiver based on recognition of an existing testing
program promulgated under the laws of the country as a compatible
alternative that meets the minimum key elements set out in the
regulation. The FAA finds this expansion of the waiver option will
sufficiently recognize deference to foreign governments, their
sovereignty, and their existing laws and requirements as an acceptable
means of ensuring an alcohol and drug-free workplace. The FAA expects
the expanded waiver options to reduce the burden on foreign citizens
and on FAA and DOT by reducing the number of waivers and exemptions
received.

D. Specific Conflicts With Foreign Laws

Commenters including ARSA, Air New Zealand Limited, Airbus
Commercial Aircraft, A4A, A4E, Deutsche Lufthansa AG, EL AL Israel
Airlines Ltd., GE Aerospace, GAMA, BDLI, IATA, Qantas Airlines, The
Boeing Company, DG MOVE, UK DFT, and individuals specifically raised
issues of labor and employment laws, human rights laws, union policies
and laws protecting the privacy rights of employees. Commenters also
noted that in countries that already permit some type of drug and
alcohol testing, the existing methodologies vary greatly.
The FAA received comments regarding existing laws that may conflict
with the proposed rule in several countries including the United
Kingdom, Ireland, Germany, the European Union, China, Singapore, Peru,
and Japan. GE Aerospace provided a copy of their comments submitted to
the ANPRM, which contained some current regulatory requirements for
Hungary, Korea, Singapore, the UK, China, Australia, and Brazil.
Chile. An individual commented it is necessary to verify the impact
of the policy according to the local law in Chile and that the policy
must not conflict with the employments contracts, employment
legislation, or labor legislation.
China. The FAA received 6 comments from Chinese repair stations
HAECO Component Overhaul Xiamen Ltd., Hong Kong Aero Engine Services
Limited, MTU Maintenance Zhuhai, Taikoo Xiamen Aircraft Engineering Co.
Ltd, Taikoo Xiamen Landing Gear Services Co. Ltd, and Taikoo Shandong
Aircraft Engineering Co., Ltd. These repair stations, along with The
Boeing Company, stated the People's Republic of China has very strict
management and control of the illegal use of drugs, forbidding any
misuse of prohibited drugs. Taikoo Shandong Aircraft Engineering Co.,
Ltd. noted that the laws of the People's Republic of China cover all
the prohibited drugs listed in 49 CFR part 40. Commenters also stated
that drug testing is not commonly requested by a business company in
China and can only be conducted by police when drug use is suspected or
when an individual is in recovery from drug use. The repair stations
stated that they instead have internal procedures that effectively
control alcohol misuse, including training/education and daily checks.
EU. DG MOVE commented that the EU has robust safety management
provisions in place for maintenance stations and a verifiable track
record demonstrating that drug and alcohol abuse do not represent a
safety concern requiring further regulatory action. The issue is
covered by EU aviation safety regulations, in addition to EU Member
States' employment laws. DG MOVE stated that since 2003 and the
adoption and application of EU legislation pertaining to the continuing
airworthiness of aircraft and aeronautical products, parts and
appliances, and on the approval of organizations and personnel involved
in these tasks, all EASA part 145 maintenance organizations are
required to establish a Safety and Quality policy and a compliance
monitoring system. Moreover, since December 2022 (date of applicability
of Commission Implementing Regulation (EU) 2021/19632), all EASA part
145 maintenance organizations are required to establish a safety
management system compliant with International Civil Aviation
Organization (ICAO) Annex 19 provisions. Such policy mandates the
conduct of random independent audits of all aspects of the organization
ability to carry out maintenance to the required standard, including
checks of all maintenance personnel's training and performance in
relation to human factor issues, which could influence their ability to
safely and properly exercise their tasks, explicitly including the
issue of abuse of alcohol or drugs. DG MOVE states the new burdensome
control measures implied by the proposed rule are in no way justified
with regard to the EU and its Member States. DG MOVE also pointed to
the existing U.S.-EU BASA, which is addressed in section V.G of this
preamble.
Germany. The BDLI and Lufthansa Group stated random testing for
drugs and alcohol is not compatible with the laws in Germany. A German
foreign

[[Page 103426]]

repair station, Elbe Flugzeugwerke GmbH, commented that a general
testing of alcohol and drugs without concrete suspicion is not
permitted under German local law and that the local personal rights of
the employee are in contradiction with the general requirement for
testing, therefore, this rule cannot be implemented in Germany.
Ireland. MOOG Inc. commented that, legally, organizations in
Ireland cannot force staff to undergo mandatory workplace drug testing
or alcohol consumption exams and to do so could cause controversy. MOOG
Inc. also mentioned privacy issues and human rights conflicts because
presently there is no requirement in the Safety Health and Welfare at
Work Act, 2005 clause 13(1)(c), which allows regulations to be made for
testing for intoxicants.
Israel. EL AL Israel Airlines (EL AL) commented that Israeli law
prohibits companies from performing random drug and alcohol testing on
employees, though local law provides for testing based on suspicion or
need. EL AL further asserted that Israeli law codifies a person's right
to bodily autonomy and privacy and prohibits compelled medical
examinations without a person's consent. EL AL also suggested that
Israeli data privacy laws may deem regular and random drug and alcohol
testing as illegal and illegitimate spying and as a violation of
privacy. EL AL stated retaining the required consent for processing of
Personal Information is a struggle for the airline and, even if
obtained may not withstand proportionality tests as there may be other
disciplinary measures with a lesser effect on the employee's privacy.
Japan. The FAA received comments from repair stations in Japan,
including Panasonic Avionics Corp-Line Maintenance, who stated labor
laws in Japan do not allow companies to conduct drug investigations.
Another commenter, JAL Engineering Company Limited, stated the strict
prohibition of drugs in Japan and its enforcement means the prevalence
of drug use among the Japanese population is significantly lower than
in the United States and Europe. The commenter also stated the Japan
Civil Aviation Bureau mandates alcohol testing for maintenance
personnel before the start of their shifts. Another Japanese repair
station, IHI Corporation, commented that alcohol testing may be
feasible, but drug testing causes concerns with the protection of
personal information and consent to test. They also stated drug
possession and its use are illegal in Japan and the consequences are
expected to achieve the goal of the implementation of the drug testing
rule.
Mexico. Chromalloy, a repair station located in Mexico, stated the
aviation laws in Mexico already include an alcohol and drugs testing as
part of the medical examination required to obtain/renew aviation
maintenance license and this medical examination is in accordance with
ICAO recommendations. Furthermore, the commenter indicated under
Article 47 of Mexico's Federal Labor Law, employees are prohibited from
arriving at work intoxicated or under the influence of a narcotic or
drug (with medical exception).
Peru. Seman Peru Sac, a foreign repair station, stated some aspects
of the proposed rule are not in accordance with the reality of the
country. For example, they stated there is no substantial consumption
rate of amphetamines, heroin, and opioids in Peru. The most widely used
drugs are cocaine, marijuana, and alcohol. They also stated drug
testing at their location has been always negative because they follow
the Advisory Circular DGAC Peru 91.010-2019, requiring unannounced
detection of 10% of personnel once a year.
Singapore. The FAA received a comment from Excel Aerospace in
Singapore which stated Singapore has extremely strict drug and alcohol
regulations.
T[uuml]rkiye. A repair station in T[uuml]rkiye, GOODRICH THY
TEKN[Idot]K SERV[Idot]S MERKEZ[Idot] LTD. [Scedil]T[Idot], commented
that drug and alcohol testing can only be requested if an individual is
under the influence within the workplace or there is a suspicion, or if
the nature of the job requires testing (e.g., drivers). They also
stated employees who are notified of testing must be informed about the
method, scope, and purpose of the test, and personal data must be
protected, and explicit consent must be given before an employer allows
employees to undergo alcohol and drug tests.
United Kingdom (UK). The UK DFT commented that the NPRM contains
elements that overlap with domestic UK provisions, including the
Railways and Transport Safety Act 2003 and the Employment Rights Act
1996. UK DFT stated aircraft maintenance personnel are required by the
terms of their licenses and those of their organizations not to work
whilst under the influence of drugs or alcohol. The Railways and
Transport Safety Act 2003 sets out prescribed limits for people
involved in aviation activities, including flight crew, ground crew and
air traffic controllers. The Act does not contain provisions giving the
power to conduct random drug and/or alcohol testing without the consent
of the test subject, which UK DFT states is contrary to the NPRM and
has the potential to impose on UK sovereignty. UK DFT further states
U.S. employment law is different from UK employment law, which is set
out in the Employment Rights Act 1996. UK DFT stated the requirement of
a program that complies with extremely detailed and onerous criteria
that can be applied to U.S. repair stations presents practical
difficulties if implemented on UK repair stations. It is likely to
present problems in some cases of a clash between the requirements of
the NPRM and UK domestic law on unfair dismissal under the Employment
Rights Act 1996. UK DFT further discussed its responsibility for the
British Overseas Territories, which do not have the same provisions as
those contained in the Railways and Transport Safety Act 2003 or the
Employment Rights Act 1996 but do have robust Employment Laws and
regulatory enforcement mechanisms in place, including suspension and/or
revocation of any license, certificate, or approval, within each
individual Territories' own legal framework. UK DFT stated the measures
suggested in the NPRM are unnecessary and disproportionately burdensome
with the potential to encroach on UK sovereignty.
The FAA acknowledges each country impacted by this rule may have
different laws on labor, employment, privacy, etc., which the repair
stations in that country must follow. The FAA appreciates the
information provided by other countries and individual foreign repair
stations to help illustrate this point. As described previously, the
FAA has expanded waiver eligibility to a foreign government, on behalf
of its repair station operators within its territory, and the
individual repair stations. This waiver based on recognition allows a
foreign government or an individual repair station to provide the FAA
with a written request for waiver based on recognition of an existing
testing program or consequences promulgated under the laws of the
country that meets the minimum criteria set forth in new Sec. 120.10.
Absent a waiver based on recognition, the foreign repair stations must
meet the requirements of 14 CFR part 120 and 49 CFR part 40, with the
option to request a waiver or exemption for those discrete regulations
that may present an obstacle.

E. Human Rights Concerns

GAMA commented that the rule raises human rights concerns because
it may result in outcomes inconsistent with

[[Page 103427]]

widely recognized norms of justice. Specifically, GAMA stated that
foreign governments may use a positive test result obtained through a
repair station's drug and alcohol testing program to prosecute a
station employee. GAMA further asserted that station employees in some
countries may face criminal conviction and excessive punishment, up to
and including capital punishment, due to a test required under this
rule. ARSA similarly commented that some countries impose harsh
penalties for alcohol and drug use. CAA raised a concern of risks to
employees of foreign repair stations where the host country's strict
drug use laws carry severe punishments, and CAA questioned whether
compliance with the rule would cause difficulty in retaining and hiring
employees who fear criminal sanctions for their drug use.
The FAA acknowledges these concerns about the potential human
rights implications of the rule's testing requirements. However,
Congress has directed the FAA to promulgate a rule requiring that
foreign repair stations ensure employees who perform safety-sensitive
maintenance on part 121 air carrier aircraft are subject to a drug and
alcohol testing program. Further, GAMA's concern about countries'
ability to use positive tests resulting from this rule's requirements
to obtain convictions and to impose excessive punishments is difficult
to assess without additional information. These consequences turn on a
country's laws, its criminal justice system, prosecutorial decision-
making and discretion within that system, and several other factors
that are beyond the FAA's understanding. The FAA acknowledges that
certain safety-sensitive maintenance employees that engage in illegal
drug use or alcohol misuse may be deterred from employment with a
foreign repair station if testing pursuant to the final rule would
uncover such conduct. The FAA lacks sufficient information to assess
the extent of impacts on retention and hiring associated with an
employee's fear of being sanctioned for drug use by their employer's
government. In cases where a foreign government receives a waiver based
on recognition of existing requirements, this final rule would not
impose additional testing or requirements beyond what the foreign
government requires.
GAMA also asked the FAA to reconsider issuing the rule if it could
result in harsh, cruel, or unusual punishments in other countries. GAMA
implored the FAA to, at a minimum, work with the U.S. Department of
State or other appropriate government agencies to reduce the likelihood
of inhumane outcomes. The FAA notes that the waiver based on
recognition option provided in the final rule would not impose
additional testing or requirements beyond what the foreign government
requires. Furthermore, the waiver based on recognition will permit
countries and individual repair stations to seek recognition of a
foreign government's existing requirements or testing program that may
mitigate certain downstream risks associated with testing for drug use
and alcohol misuse. The FAA notes that it regularly engages in inter-
agency collaboration, such as with the U.S. Department of State, and
would continue to do so to the extent any specific concerns are raised
in the implementation of this rule.

F. Waivers and Exemptions

1. Waiver Burdens
ARSA asked the FAA to consider offering a blanket waiver from the
requirements of 14 CFR part 120 in some circumstances, including where
a foreign government has similar drug and alcohol testing requirements.
ARSA stated that compliance with 49 CFR part 40 would not be required
if the FAA issued a blanket waiver to 14 CFR part 120. The Teamsters, a
supporting commenter, explained that the FAA has satisfied these
concerns via the proposed waiver and exemption process.
The FAA disagrees that the proposed regulations improperly burden
foreign repair stations that would be subject to the rule. As explained
previously, the regulations as proposed comply with 49 U.S.C.
44733(d)(2): they require the relevant foreign repair stations to
implement a testing program; they establish acceptable baseline
requirements for a testing program; and they include mechanisms for
compliance and adaptation, specifically through waivers and exemptions,
to address inconsistencies with local laws. The FAA reasonably
determined that the regulated community is best situated to seek relief
from 49 CFR part 40 and 14 CFR part 120 to ensure consistency with
local laws, which led the FAA to expand the waiver opportunities, as
previously discussed in this final rule.
However, the FAA finds seeking such relief may require more time
than the NPRM's proposed one-year implementation period. Accordingly,
the FAA will set the effective date to 30 days while extending the
compliance date to three years to provide existing foreign repair
stations up to three years to comply with the pathways adopted by this
final rule. These measures provide foreign repair stations with
sufficient time and flexibility to implement an appropriate drug and
alcohol testing program consistent with any waivers. Additional
explanation for the extension of the compliance date of the rule is
included in sections IV.A and V.B.
2. Waiver Standard and Requirements
Several commenters raised concerns about the NPRM's proposed
processes and applicable standards for issuing waivers and exemptions.
A4A stated the proposed processes for issuance of waivers and
exemptions is ambiguous and vague because it does not offer a standard
under which the FAA will approve a waiver. A4A alleged that the process
is therefore arbitrary and capricious, and it requested the FAA explain
the process and standards for FAA waivers and DOT exemptions and give
the public an opportunity to comment on the standards. The Lufthansa
Group commented that waivers and exemptions would be reviewed through
an unspecified process and rely on an individual's judgment rather than
a particular standard. ARSA similarly commented that the NPRM failed to
provide an objective standard for obtaining an exemption or waiver.
A4A stated the FAA asks for more than what Congress required within
the waiver request process (i.e., 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''
and 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 objective of the provision in any way'').\26\ A4A stated
these items should not be part of the waiver process since the FAA
cannot impose a program that is inconsistent with the applicable laws
of the country in which the repair station is located, making this
information irrelevant. Both A4A and ARSA suggested that the FAA and
DOT must automatically grant a waiver or exemption when there is an
inconsistency in the law. They argued that the proposed process
indicates the FAA could deny waivers despite the clear Congressional
mandate to avoid inconsistencies with foreign laws, and the FAA offered
no standards for making these decisions in the proposed rule. ARSA
provided suggested

[[Page 103428]]

amendments to the regulatory text consistent with its comments. Some
commenters including IHI Corporation, a repair station in Japan, would
like to see more flexibility on the approval of a waiver, considering
the context of the country's laws and regulations and their customs.
---------------------------------------------------------------------------

\26\ Proposed Sec. 120.9(b)(5) and (6).
---------------------------------------------------------------------------

Alternatively, supporting commenters including TWU noted the waiver
and exemption process outlined in the NPRM is appropriately tailored
and urged the FAA to maintain a narrow view of what necessitates an
exemption or waiver. The TTD agreed, stating the FAA must carefully
review each request, examine the country's laws, and weigh the
potential costs of relaxing important safety regulations. The Teamsters
commented on the proposed requirements for requesting a waiver and
stated maintaining a narrow process for granting waivers or exemptions
is necessary for the pursuit of one level of safety across maintenance
providers. They stated the elements the FAA requires to grant a waiver
provide a high bar, and the FAA should maintain that high bar, not
taking revenue or workforce size into account. They asked the FAA to
maintain a narrow interpretation of what an ``inconsistency'' with
another country's law is and require the requestor to cite laws that
are explicitly inconsistent with the regulation. They also stated any
request for a waiver or exemption will adversely affect accidents and
injuries unless categorically proven otherwise. The Teamsters also
stated it would be inappropriate and inconsistent with Congressional
intent to only apply 14 CFR part 120 and 49 CFR part 40 in part.
The FAA recognizes that the different laws and regulations of some
countries may place limitations on drug and alcohol testing, prohibit
it entirely, or place conditions on how testing would be done. 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
explained in the NPRM, the FAA proposed to avoid situations whereby the
regulations of the FAA are inconsistent with laws in other sovereign
countries through waivers and exemptions.
To ensure that a waiver based on an inconsistent law results in an
acceptable drug and alcohol testing program, Sec. 120.9(b) requires
the foreign repair station to explain 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,'' and describe ``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''.\27\ These
elements of a request will inform the FAA's assessment of whether a
waiver is appropriate upon a showing of an inconsistent law, and
whether any conditions or mitigation would be appropriate to further
the purposes and objectives of the drug and alcohol requirements
already deemed acceptable to the Administrator.
---------------------------------------------------------------------------

\27\ Proposed Sec. 120.9(b)(3) and (6).
---------------------------------------------------------------------------

The FAA recognizes that the varied laws of foreign countries could
conflict with the drug and alcohol testing requirements in complex
ways. Some asserted conflicts may be clear. For example, some countries
may completely bar on privacy grounds any pre-employment drug testing,
which is required by Sec. 120.109(a), or random drug testing, which is
required by Sec. 120.109(b). More difficult conflicts may arise when a
country's existing drug and alcohol testing requirements are
inconsistent, though not outright barred, with the demands of the rule.
These circumstances understandably result in uncertainty about how the
FAA will address specific requests for waivers, but that uncertainty is
inherent in the balance struck by Congress when it directed the FAA to
require drug and alcohol testing in a manner acceptable to the
Administrator and consistent with diverse foreign laws. The NPRM
provided a standard that was deemed appropriate to the Administrator
that will result in waivers to accommodate foreign laws upon a showing
of inconsistency, though the FAA retains the authority to advance the
purposes and objectives of the existing testing scheme to the greatest
extent possible through appropriate conditions and limitations that
still preserve consistency with foreign laws.
Supporting commenters NDASA and APA suggested modifications to the
proposed rule text regarding waiver requirements. First, NDASA
suggested that FAA include a requirement that copies of foreign laws
provided to the FAA are translated in English. Although English is the
expectation for any submitted documentation, the FAA does not find this
distinction needs to be included in the regulatory text.
NDASA and APA recommended the modification of Sec. 120.9(b)(6) to
change from ``if applicable, a justification of why it would be
impossible to achieve the objectives of the provision in any way'' to
instead state, ``if applicable, an explanation of how the safety
objectives of the provision will be met with procedures that create an
equivalent level of safety.'' They asserted this change would always
include safety, so it cannot be considered impossible to achieve. The
FAA does not revise the adopted regulatory text to reflect this
recommended revision in this final rule. As the FAA has acknowledged,
each country impacted by this rule may have different laws on labor,
employment, privacy, etc., which the repair stations in that country
must follow. The FAA must consider the diversity of laws and ensure the
regulatory language allows a repair station to remain consistent with
the applicable laws of the country in which the repair station is
located. Additionally, the element of safety is further explicitly
accounted for in paragraph (b)(3), which requires an explanation of 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.
NDASA suggested adding a regulatory provision in 49 CFR part 40 to
correspond with the NPRM's proposed Sec. 120.9, likening the addition
to the existing stand down waiver process, which has regulatory
references in both Sec. 40.21 and Sec. 120.125. The FAA determined
this recommendation is outside the scope of this rulemaking, which is
limited to amending part 120.
3. Eliminating Waivers and Exemptions
NDASA and APA commented they preferred to see no waiver or
exemption option. APA stated all safety-sensitive work on part 121
aircraft should be required to adhere to the same, or at least
substantially similar, stringent criteria as required for part 121
maintenance personnel located within the United States to maintain a
consistent minimum level of safety. APA further stated the FAA should
prohibit part 121 operators from having maintenance performed in
countries with laws that prohibit testing or make it impractical. They
stated there is no logic behind permitting a knowing acceptance of
reduced safety standards. NDASA agreed with APA's comment, asserting
that if a country cannot meet the criteria, the safest approach would
be to prohibit the U.S. carrier from having safety-sensitive
maintenance functions performed within that country.

[[Page 103429]]

APA and NDASA commented that the exemption process proposed in the
NPRM is not the correct mechanism for allowing a foreign repair station
to opt out of the rule, and the waiver process in part 120 is more
appropriate. They both stated the exemption process should be removed
for three reasons: (1) part 40 should be followed as written regardless
of where testing occurs due to the quality, consistency, and
protections it affords; (2) exemptions should only be granted when
there are ``special or exceptional circumstances, not likely to be
generally applicable and not contemplated in connection with the
rulemaking'', and (3) it is contrary to the Administrative Procedure
Act and the DOT's position on exemptions to make a regulation inviting
exemptions from potentially 192 of the ICAO signatory countries and/or
the individual repair stations in those countries. They stated that
since the rule anticipates receiving petitions for exemption, the
situation is not unusual and has been contemplated in the rulemaking,
making the waiver process more appropriate. The commenters suggested
deleting Sec. 120.5 from the proposed rule and making this a waiver
process under Sec. 120.9 only.
The FAA appreciates the commenters' concerns about exemptions under
49 CFR part 40 being used to accommodate foreign laws applicable to
foreign repair stations that are inconsistent with the part's
requirements. The FAA agrees that compliance with those requirements
would ensure consistent, high-quality testing occurs when required by
this rule. However, the FAA lacks the authority to grant an exemption
in whole or in part from 49 CFR part 40 under Sec. 40.7 or implement a
waiver process for relief from 49 CFR part 40. The exemption process
described in 49 CFR part 5 is DOT's established process for granting
relief from 49 CFR part 40. Furthermore, because the availability of
exemptions may be critical to compliance with the statutory mandate's
consistency requirement in some circumstances, the FAA defers to DOT to
honor Congress's intent if any appropriate exemptions are sought. As
commenters noted, an exemption will only be granted under Sec. 40.7 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. These circumstances may not be generally
applicable nor contemplated in connection with the rulemaking that
finalized 49 CFR part 40,\28\ and, considering the unique context of
each country's laws, the FAA concludes that exemptions would not be
generally applicable outside the foreign repair station's country.
Also, there is no evidence to suggest that DOT contemplated in the
rulemaking finalizing 49 CFR part 40 the specific special or
exceptional circumstances that may arise when a foreign law conflicts
with the part's requirements.
---------------------------------------------------------------------------

\28\ See 49 CFR 40.7(b).
---------------------------------------------------------------------------

APA and NDASA were also concerned granting waivers or exemptions to
foreign repair stations may open the door to granting similar waivers
to domestic employers and may have an impact on long-standing
international testing required by the Federal Railroad Administration,
the Federal Motor Carrier Safety Administration, and the Coast Guard.
These commenters requested the FAA address the potential impact on the
DOT agencies that require testing.
The FAA does not find that the implementation of this final rule
would have an impact on the testing requirements of another Federal
agency requiring testing in accordance with 49 CFR part 40. Each
regulating agency and DOT has the authority to determine the
applicability of their respective regulation and whether to consider
providing relief from their respective regulation either in part or in
whole. Further, the waiver option presented in this rule is
specifically applicable to foreign repair stations that perform safety-
sensitive maintenance on part 121 air carrier aircraft. The FAA is not
extending this option to domestic employers regulated under 14 CFR part
120.
4. Department of Transportation (DOT) Authority
A4A argued Congress did not confer authority to the FAA to impose a
program over which it does not control, noting that 49 CFR part 40 is a
DOT regulation and the FAA cannot grant exemptions to it. A4A also
commented the FAA's reliance on DOT's exemptions far exceeds the
Congressional limitations placed on the FAA, and the FAA cannot force
the DOT to agree that an inconsistency meets the thresholds provided in
49 CFR part 5.
As a general matter, the FAA has broad statutory authority to
promulgate regulations to implement programs established by statute and
administered by the FAA. Under section 106 of title 49 of the United
States Code, the Administrator ``is authorized to issue, rescind, and
revise such regulations as are necessary to carry out'' the
Administrator's and the FAA's functions. Those functions include
administering alcohol and drug testing programs codified in 49 U.S.C.
chapter 451. Specifically, 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 drug
and alcohol testing. In addition to these authorities, the final rule
is promulgated under section 308 of the 2012 Act, 49 U.S.C.
44733(d)(2), which directs the FAA to extend drug and alcohol testing
requirements to foreign repair stations with employees that perform
safety-sensitive maintenance functions on part 121 air carrier
aircraft. Section 309 of the 2012 Act further requires that such
testing requirements be acceptable to the Administrator. The FAA
maintains that the standards set forth in 14 CFR part 120 and 49 CFR
part 40, which are cooperatively administered by the FAA and DOT,
respectively, are acceptable drug and alcohol testing programs as
applied to persons that perform safety-sensitive maintenance functions
at U.S.-based repair stations. Because the FAA lacks the data or
studies to support a deviation from the current program requirements,
for purposes of 49 U.S.C. 44733(d)(2), the Administrator finds that the
current drug and alcohol testing scheme is acceptable as applied to
foreign repair stations.
As the NPRM explained, the FAA and DOT have long engaged in a
regulatory partnership regarding drug and alcohol testing of persons in
the aviation industry.\29\ This partnership has resulted in linked
regulations that generally govern DOT agencies'--including the FAA's--
drug and alcohol testing procedures in 49 CFR part 40, and more
specific FAA regulations on the same subjects in 14 CFR part 120. The
FAA's existing drug and alcohol testing regulatory framework functions
through both DOT's and FAA's regulations.\30\ As noted previously, the
FAA has broad statutory authority to carry out its functions. Neither
49 U.S.C. 44733(d)(2) nor any other statute limits the FAA's authority
to promulgate regulations on drug and alcohol testing that are
consistent with the long-established regulatory framework. Commenters
offered no authority or analysis to suggest otherwise. They also did
not explain how the FAA's lack of control over DOT's exemption process
is relevant to the FAA's statutory authority

[[Page 103430]]

to require a drug and alcohol testing program. The proposed regulations
fall well within the FAA's statutory authority, and the FAA's continued
reliance on 49 CFR part 40 is necessary to ensure consistency across
the existing regulatory framework in which drug and alcohol testing
conducted under this rule would occur.\31\ If an exemption from 49 CFR
part 40 is necessary, a part 145 repair station must request it in
writing from DOT under the provisions and standards of 49 CFR part 5.
While the FAA lacks control over DOT's exemption process, the FAA and
DOT may coordinate on these requests as they relate to implementation
of a drug and alcohol testing program required by 14 CFR part 120,
particularly if the foreign repair station concurrently requests a
waiver from this part 120.
---------------------------------------------------------------------------

\29\ 88 FR at 85138.
\30\ 49 CFR 40.1(a) states that 49 CFR part 40 applies to and
instructs ``all parties who conduct drug and alcohol tests required
by [DOT] agency regulations how to conduct these tests and what
procedures to use.''
\31\ While the final rule amends 14 CFR 120.5 to require
regulated entities to comply with exemptions issued under part 40,
the final rule makes no changes to the longstanding requirement that
those entities ``having a drug and alcohol testing program under
this part must ensure that all drug and alcohol testing conducted
pursuant to [part 120] complies with the procedures set forth in 49
CFR part 40.''
---------------------------------------------------------------------------

5. Department of Health and Human Services (HHS) Authority
A4A and ARSA stated the FAA did not address the requirements of the
HHS that may apply to the testing program and whether repair stations
may obtain relief from these requirements when inconsistent with
foreign laws. The FAA disagrees with commenters that relief may need to
be granted by HHS as part of this rule. Because requirements that
connect to the HHS mandatory guidelines (e.g., laboratory
certifications) are included in 49 CFR part 40, any relief needed by a
foreign repair station, or its government, may be granted by DOT as
part of the exemption process.\32\
---------------------------------------------------------------------------

\32\ Although HHS has no authority to regulate the
transportation industry, the DOT does have such authority. DOT is
required by law to develop requirements for its regulated industry
that ``incorporate the Department of Health and Human Services
scientific and technical guidelines dated April 11, 1988, and any
amendments to those guidelines . . .'' See 49 U.S.C. 20140(c)(2). In
carrying out its mandate, DOT requires by regulation at 49 CFR part
40 that its federally-regulated employers use only HHS-certified
laboratories in the testing of employees, 49 CFR 40.81, and
incorporates the scientific and technical aspects of the HHS
Mandatory Guidelines.
---------------------------------------------------------------------------

6. Waiver Cost
Commenters including ARSA, DG MOVE, MRO Holdings, and EL AL Israel
Airlines expressed concern with the cost to request a waiver or
exemption, stating the process is burdensome and will require the
foreign citizen to obtain the services of experts in the fields of
international law as well as HHS, DOT, and FAA regulations to decipher
whether compliance with each section of the rules can be achieved.
Commenters stated the cost of this is not included in the NPRM.
Relatedly, CAA commented that the rulemaking fails to accurately
account for the costly challenges if the rule was implemented as
proposed and underestimates the practical and legal feasibility of
implementing the conceived exemption process. They also stated that, as
noted in the NPRM, over 900 repair stations in over 30 countries would
come under this rulemaking and even if only half applied for
exemptions, there is no proper accounting by the FAA of the personnel,
time, cost, and inherent delays for processing hundreds of exemptions
involving explanation of local law, expertise of additional personnel,
time, and cost to the applicant.
The FAA acknowledges concerns regarding the cost of submitting
waivers and exemptions. In the NPRM, the FAA, because of the
uncertainty of how many repair stations would apply for a waiver or
exemption, assumed that all repair stations would comply with the rule.
The cost of creating and maintaining a drug and alcohol program is more
expensive than the cost of all repair stations submitting a waiver or
exemption. Therefore, the estimated cost in the NPRM is a conservative
case in which the cost of the rule is higher. In response to comment,
in the final rule, the FAA has expanded waiver eligibility to foreign
governments, which FAA anticipates will mitigate the burden on foreign
repair stations identified by commenters. Because of this addition, the
FAA also added a second scenario that estimates the cost of all
countries applying for this alternative means of compliance.

G. Bilateral Aviation Safety Agreements

In the NPRM, the FAA invited comments on whether any Bilateral
Aviation Safety Agreements (BASAs) conflict with the requirements of
the proposed rule. Though responsive commenters provided views on
various BASAs, few offered evidence of direct conflicts with the
requirements of those agreements. For example, BDLI commented that
countries with existing BASAs already contain prohibitions and
requirements regarding the consumption of drugs and alcohol in the
workplace and any violation of these prohibitions would result in
sanctions by the aviation authority and in serious cases criminal
prosecution but did not explicitly provide which BASAs would conflict.
Many commenters reiterated concerns that were submitted in response to
the ANPRM.\33\ For example, commenters encouraged the FAA to honor the
intent of the BASAs and to rely on them to implement aspects of the
rule, focused on the need for consultation with BASA parties, and
identified the potential for retaliation.
---------------------------------------------------------------------------

\33\ The ANPRM published at 79 FR 14621. The FAA responded to
these comments in the NPRM. 88 FR at 85141.
---------------------------------------------------------------------------

As the NPRM explained, 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.
1. Governmental Commenters
Two foreign government transportation agencies representing the
interests of the United Kingdom and the European Union commented in
opposition to the NPRM and raised concerns about the BASAs between the
United States and their respective jurisdictions. The UK DFT asserted
that the US-UK BASA, Maintenance Implementation Procedure (MIP), and
Maintenance Agreement Guidance (MAG) would need to be amended if the
FAA finalized the NPRM as proposed and made it effective in the UK. In
the UK DFT's view, the FAA would be in breach of the MIP if it refused
to certify a UK-based part 145 repair station for failure to comply
with the NPRM's proposed requirements. UK DFT also noted that the FAA
did not consult on the proposal under the terms of the UK-US BASA prior
to publication. Finally, the UK DFT encouraged the FAA to accept the UK
aviation maintenance system as a whole and not seek to make changes to
parts of it. The UK DFT further asked the FAA to respect the principles
of trust, cooperation, communication, and safety culture which underpin
the UK-US BASA.
For the European Union, DG MOVE commented that a full account
should be taken of the mutual trust and equivalency principles that
underlie the US-EU BASA, and the existing requirements in place within
the European Union. DG MOVE stated the BASA provides for a privileged
exchange on regulatory developments, which was not done prior to the
issuance of the proposed rule. DG MOVE asked the FAA to honor the long-
standing cooperative relationship between Europe and the United States,

[[Page 103431]]

to minimize economic burden on their respective aviation industries
from redundant oversight, and to adhere to the comprehensive system of
regulatory cooperation in civil aviation safety an environmental
testing and approvals based on continuous communication and mutual
confidence.
The FAA acknowledges the concerns raised by UK DFT and DG MOVE,
particularly with respect to prior notice and consultation concerning
the NPRM and the requirements now finalized in the rule. The FAA is
committed to honoring the principles of trust and cooperation embodied
in the BASAs between the United States and the United Kingdom, the
European Union, and other signatory partners. The final rule amends the
proposal to address some of the concerns raised by UK DFT and DG MOVE.
Specifically, the FAA has revised the waiver and provided an additional
waiver option that gives foreign governments the ability to obtain a
waiver on behalf of repair stations in its territory based on
recognition of its program. The FAA is confident that the changes to
the waiver options made in response to comment will allow for a
streamlined process for further productive discussions and, if
appropriate, the recognition of a country's existing requirements as a
compatible alternative pursuant to Sec. 120.10. As explained
previously, the FAA has set the effective date of this rule to January
17, 2025 and includes a three-year compliance period to provide
existing foreign repair stations up to three years to comply with the
pathways adopted by this final rule. The FAA will further consult with
parties to BASAs, where appropriate, on the impact of the final rule's
requirements on the relevant agreements during this three-year
implementation period.
2. Labor, Trade, and Industry Commenters
Fourteen labor organizations, airline trade organizations, and
companies in the airline and maintenance industry commented on the
NPRM's impact on the BASAs. Like the governmental commenters, the
labor, trade, and industry commenters raised concerns about
consultation and honoring the BASAs' purposes and requirements. For
example, Airbus commented that the FAA should take special care with
countries where a BASA is in force, including engaging in in-person
consultations on a regular basis to understand the legal, practical,
and cultural issues related to drug and alcohol testing, and the
measures already in place that may mitigate the need to deploy this
rule. In addition, several commenters raised the potential for
retaliation by foreign governments against repair stations located in
the United States if the NPRM were to be finalized as proposed.
Commenters including A4A, IATA, and ARSA argued that the rulemaking
attempts an end-around of BASAs by including the proposal under 14 CFR
part 120 instead of part 145. They also requested the FAA generally
follow directives on bilateral agreements and procedures required by
treaties. ARSA and A4A stated that drug and alcohol testing
requirements would need to be included as amendments to the special
conditions of certain BASAs, and that those changes should be made in
accordance with the State Department's sanctioned process associated
with bilateral partners. A4A further suggested that FAA's drug and
alcohol testing program should be applied through part 145 rather than
part 120. A4A asserted that this change would respect comity and
reciprocity by clarifying that any compliance issues would be processed
through existing BASA provisions for special conditions. Accordingly,
A4A explained that the proposed drug and alcohol testing requirements
would automatically apply only in foreign jurisdictions without
reciprocal recognition of the foreign repair station certificate (i.e.,
a BASA). IATA stated their agreement with these comments, adding that
the proposed rule disregards the relevance of existing BASAs which
recognize part 145 repair stations that are certificated by the safety
regulator where the facility is located. IATA recommended that the FAA
instead accept a country's drug and alcohol testing requirements if
there is a BASA in place that already addresses drug and alcohol
testing. IATA asserted that a BASA should be renegotiated if there is
no provision for drug and alcohol testing in an existing agreement.
BDLI suggested that the FAA should treat as equivalent and sufficient
any prohibitions and requirements regarding drug and alcohol
consumption in a BASA party state. Airbus and Lufthansa Group alleged
that the NPRM is incompatible with the U.S.-EU BASA. Airbus further
noted that the U.S.-EU BASA Maintenance Annex Guide (MAG) is silent on
drug and alcohol testing programs, but argued that this silence does
not mean the NPRM would avoid conflict with the U.S.-EU BASA MAG. In
their comment supporting the NPRM, the Teamsters noted opposing
commenters have not provided evidence demonstrating that international
obligations (i.e., BASAs) are inherently in conflict with the NPRM and
that the FAA should not permit these concerns to impact the rulemaking.
The FAA disagrees with the commenters' characterization of the NPRM
as an attempt to circumvent the requirements or purposes of the BASAs.
To the extent BASAs address repair stations, including through annexes
and special conditions, those BASAs concern how the parties will
inspect, evaluate, and certify that maintenance organizations meet the
requirements of part 145 and its equivalent in the foreign
jurisdiction. The FAA's drug and alcohol testing regulations do not
contain any maintenance standards that would be subject to special
conditions.\34\ As the Teamsters correctly noted, commenters have not
identified a specific conflict between the NPRM and the BASAs. However,
the FAA agrees with the governmental commenters who suggested that
further consultations and amendments to address the change of
circumstances may be appropriate, consistent with the consultation
provisions under applicable BASAs. The FAA is committed to doing so if
a provision is identified warranting such.
---------------------------------------------------------------------------

\34\ For example, the UK-US BASA MIP defines ``special
conditions'' to mean the requirements of ``14 CFR parts 43 and 145
or in the (UK) Part-145 that have been found, based on a comparison
of the regulatory maintenance systems, not to be common to both
systems and which are significant enough that they must be
addressed.'' US-UK BASA 1.7(h)
---------------------------------------------------------------------------

Opposing commenters argued that the FAA should transfer drug and
alcohol testing requirements to part 145 for the limited purpose of
ensuring that those requirements would be subject to the special
conditions process under current BASAs. However, BASA parties have
other means to address concerns about the requirements finalized in
this rule, including provisions in each BASA allowing for consultation
between the parties on amendments to address either party's revisions
to its regulations, procedures, or standards (including those outside
of part 145). For these reasons, the FAA concludes that relocating the
drug and alcohol testing requirements applicable to part 145 repair
stations is not appropriate or necessary.
Some labor, trade, and industry commenters also raised concerns
about retaliation against U.S.-based repair stations if drug and
alcohol testing were extended beyond U.S. borders. For example, A4A and
IATA commented that the NPRM's impact on BASAs could increase the risk
that foreign governments impose reciprocal and retaliatory drug and
alcohol testing or other requirements on U.S.-based repair stations
outside of a BASA's mutual and cooperative certification regime. GAMA

[[Page 103432]]

warned that the FAA should not take any action that may dissuade other
countries from entering into these agreements. MOOG Inc. similarly
commented that the NPRM could result in backlash within current BASAs
and limit the possibility of future agreements. The FAA acknowledges
the commenters' concerns and has taken steps in the final rule to
lessen the burdens on foreign governments and repair stations that
could incentivize retaliation. As explained above, the FAA anticipates
that the waiver changes made in response to comments in the final rule
will facilitate recognition of a foreign government's existing
requirements as a compatible alternative that contains the minimum key
elements of 14 CFR part 120.

H. Safety Case

1. Lack of Sufficient Data or Risk
Twenty commenters including ARSA, IATA, MOOG Inc., and Lufthansa
Group stated that there is insufficient statistical data (i.e., no
safety case) to justify a rule requiring drug and alcohol testing
programs at foreign repair stations. Several commenters continue to
question the safety risk that would make issuance of a new regulation
necessary, with A4A asserting safety measures must be data-driven and
risk-based because the FAA fosters the industry's success with its
scientifically-based and data-driven safety regulations and programs.
Because there have been no accidents or incidents related to safety-
sensitive maintenance personnel using drugs or alcohol, A4A argued
Congress requires this rule, not the FAA's safety mandate. Commenters
asserted the FAA has no data showing evidence that drug use or alcohol
misuse has ever caused or contributed to a maintenance function-related
accident or incident, ergo there are no ``proven accidents and
incidents'' involving drug use or alcohol misuse by maintenance
personnel in the United States, European Union, and beyond. Some
commenters argued that the absence of data indicates that there is no
safety risk or productivity justification for the rule.
Commenters including Airbus Commercial Aircraft, ARSA, IATA, CAA,
and RAA emphasized how the FAA acknowledged in the NPRM there have been
no accidents or incidents related to safety-sensitive maintenance
personnel using drugs or alcohol and that the FAA could not determine
whether the rule would have any additional impact on safety because the
FAA does not have testing data or knowledge of existing testing
programs in other countries. Some commenters, including GAMA and MOOG
Inc., confirmed they have no records showing an issue with safety
records and quality performance. Similarly, commenters from China
(including Taikoo Shandong Aircraft Engineering Co., Ltd, Taikoo Xiamen
Aircraft Engineering Co. Ltd, Taikoo Xiamen Landing Gear Services Co.
Ltd, and HAECO Component Overhaul Xiamen Ltd.).
BDLI, IHI Corporation, and JAL Engineering provided information
that there is no record of an accident or incident that can be
attributed to drug use or alcohol misuse. DG MOVE and UK DFT commented
that there have been no occurrences of safety data at the United States
level or the European Union level to substantiate the need to extend
the current requirements to the EU. DG MOVE noted that a review of the
European Central Repository looking at all incidents, serious
incidents, and accidents in the EU Member States/EEA States between
2015-2023 showed only 4 references to maintenance engineers who were
suspected of consuming alcohol before work. In addition, IATA commented
that between 1970 and 2012, there were no occurrence reports of drug or
alcohol intake at maintenance facilities in the ICAO Accident Data
Reporting system. IHI Corporation would like the FAA to show how much
flight safety will improve by conducting this testing, to ensure the
cost is worth the benefit. BDLI stated lack of training, failure to
follow instructions, overconfidence, distraction, fatigue, or a non-
ergonomic workplace are far more likely to be named as potential
sources of danger.
The FAA acknowledges that it continues to have insufficient data to
estimate a baseline level of safety risk associated with drug use and/
or alcohol misuse at foreign repair states by safety-sensitive
maintenance personnel. The FAA believes that the safety data showing
the number of positive test results for maintenance personnel subject
to testing under the FAA's domestic program offers strong support for
this rulemaking. Based on the data reported to the FAA from all
regulated domestic employers from 2005-2017, maintenance employees were
subject to 1,343,887 drug tests (including all test types). Of those
tests, 17,046 resulted in a verified positive drug test result for one
or more of the drugs tested. From 2009-2017, employers reported that
maintenance employees were subject to 568,156 alcohol tests (including
all test types), and 1,516 of those tests had a confirmed alcohol
concentration of 0.04 or greater. As the FAA has stated in previous
rules,\35\ the FAA does not believe it should wait until there is an
actual loss of human life before taking action to ensure safety-
sensitive maintenance personnel are subject to testing. Only one link
in the safety chain would have to fail for an accident to occur.
Therefore, although the FAA cannot determine the quantitative impact on
safety, Congressional intent has determined there is a safety benefit
and the FAA has scoped this final rule to address the specific
statutory mandates in 49 U.S.C. 44733(d)(2) and 49 U.S.C. 44733.
---------------------------------------------------------------------------

\35\ For example, 71 FR 1666.
---------------------------------------------------------------------------

2. Existing Regulations
Many commenters noted that drug use and alcohol misuse in the
aviation industry is sufficiently addressed through existing
regulations of sovereign nations (including the European Union), as
well as by the policies of employers within the industry. For example,
DG MOVE commented they have robust safety management provisions in
place for maintenance stations and the issue is covered by EU aviation
safety regulations, in addition to Member States' employment laws. RAA
mentioned the industry has been successful implementing Safety
Management Systems including drug and alcohol abatement programs, which
foster scientifically-based and data-driven approaches as well as
voluntary reporting programs.
Boeing Research and Technology commented that stringent drug and
alcohol monitoring policies are already in place in many countries and
the existing policies are designed to ensure the safety and reliability
of aviation maintenance work, often exceeding the requirements proposed
by the FAA. They also stated that in some countries, laws are not
standardized at the national level, but instead vary by state or
province; they also may vary by the class of driver.
The FAA received 2 comments from South Korean company Sharp
Aviation K which requested an exemption and waiver from the rule due to
the strict drug policy of South Korea. The company stated that South
Korea's citizens are prohibited from using drugs and drug testing is
already mandatory for every worker as pre-employment requirements
including foreign workers prior to visa issuance.
Two commenters from Singapore questioned whether their existing
processes were acceptable to meet the requirements of this rule. One
individual questioned if a repair station

[[Page 103433]]

that already sends personnel for drug and alcohol testing during their
pre-employment checkup needs to comply. The second, ST Engineering
Aerospace Services Company Pte. Ltd., a foreign repair station,
commented that Singapore already has a very strong policy against the
sale and consumption of drugs, and their CAAS or local National
Aviation Authorities (NAA) also has a bilateral agreement with FAA.
They also stated they have a written policy on drug and alcohol testing
which is accepted by other NAAs. They questioned whether their current
policy is acceptable.
The FAA appreciates the few commenters that provided information
about their countries' own testing laws, regulations, and/or
requirements. This type of information helped the FAA better understand
how countries impacted by this rule may have existing drug and alcohol
testing requirements and local laws that could meet the same safety
intent of the domestic requirements. As described previously, in
response to comments, this final rule provides a waiver option allowing
a foreign government, on behalf of all repair stations in the country,
to submit an existing testing program for acceptance by the
Administrator. An individual foreign repair station may also seek a
waiver based on the laws of its country and current testing regimes or
consequences that exist and meet the intent of the mandate. If a
foreign repair station or its government, on behalf of all repair
stations in the country, does not submit a request for waiver based on
recognition of an existing testing program, the foreign repair stations
must meet the requirements of 14 CFR part 120 and 49 CFR part 40, with
the option to request a waiver or exemption as proposed in the NPRM.
3. Alleviate Public Safety Concerns
Twelve commenters who supported the NPRM noted the increased safety
benefit the rule would bring and the need for a single level of safety
domestically and in foreign countries. These commenters included the
Teamsters, TTD, TWU, APA, NDASA, a software provider (Nexus 33 Group),
and six individuals. The Teamsters argued for a single level of safety,
stating the current ``two-tiered'' system of regulation is
inappropriate and fundamentally unsafe. They also stated the ability of
air carriers to evade regulatory responsibilities and the attendant
costs of those responsibilities has played a role in the continued
outsourcing of heavy maintenance. TTD stated it is a glaring and
troubling loophole in the regulation that workers at domestic
facilities must undergo extensive drug and alcohol testing while
foreign mechanics working on U.S. aircraft are exempt. One individual
commenter stated the benefit to safety outweighs any cost to foreign
repair stations to implement these programs and potential obstacles of
implementation. Nexus 33 Group LLC commented that safety is a team
effort regardless of location and a drug free workplace is essential to
safety. They stated that they recognize that many international repair
stations already have a drug free workplace in place, and this would
simply confirm their current enforcement of internal policies with
oversight. An individual commented that airlines should always strive
to keep their operations as safe as possible, and this NPRM could bring
an additional ``cushion'' towards that. Another individual commented
that they have seen the benefits of enhanced safety protocols as they
relate to a sound workplace drug and alcohol testing program in the
U.S., and it makes sense from a safety standpoint to expand a similar
program to further ensure the safety of the traveling public. APA
commented that although there have been no instances of an accident due
to drug or alcohol use by someone in a safety-sensitive position, it is
not an effective approach to safety to wait for something to happen
before taking steps to prevent it from happening. APA further stated
safety is not negatively impacted by these drug and alcohol programs,
so there is no downside to implementing them from a safety perspective.
As previously discussed in the NPRM, 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. The FAA
received minimal explicit quantitative or qualitative 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 continues to
recognize the number of accidents and incidents involving drug use and/
or alcohol misuse by safety-sensitive maintenance personnel at foreign
repair stations is unknown. Because the FAA does not have sufficient
testing data or knowledge of existing testing programs in other
countries, the FAA is unable to estimate the impact of the final rule
in detecting and deterring drug use and/or alcohol misuse. However, the
FAA acknowledges commenters that asserted a public safety concern with
foreign repair stations and agrees with commenters that acknowledged
the safety benefits of drug and alcohol testing programs in the U.S.
The FAA supports such programs to further ensure safety of the
traveling public.

I. Financial, Technical, and Operational Concerns

1. Benefits and Costs
Nineteen commenters mentioned the necessity of considering whether
the benefits of mandating drug and alcohol testing programs in foreign
repair stations outweigh the costs. Many commenters believed this
rulemaking would create an excessive economic burden on the company
without a significant benefit, including BDLI. Moreover, several
commenters stated such a program would impose excessive costs on
business operations, which would ultimately be transferred to
customers, placing an additional burden on domestic operators.
Airbus Commercial Aircraft commented that the lack of testing
alternatives may convince some foreign repair stations to surrender
their certificate because the volume of their activities with domestic
operators no longer justifies their investment. A4A commented
similarly, stating the FAA must consider the indirect competitive cost
implications of the NPRM to the United States airline industry and
assess the NPRM's indirect costs to domestic airlines if foreign repair
stations refuse to comply and forgo their part 145 certification.
Commenters generally expressed concern that the rulemaking will result
in aircraft maintenance becoming unavailable to domestic air carriers
at repair stations or in countries with few repair stations and will
give an unfair competitive advantage to foreign air carriers. A4A asked
the FAA to consider the likelihood of the loss of maintenance
operations overseas for U.S. air carriers and the resulting economic
and competitive impact for U.S. air carriers and the public that rely
on their transportation. A4A stated the possibility is very real and
included data on the strain on airline operations that currently
struggle to obtain the necessary volume of maintenance services on a
global scale.
Several commenters from China including HAECO Component Overhaul
Xiamen Ltd., Hong Kong Aero Engine Services Limited, and Taikoo Xiamen
Landing Gear Services Co. Ltd stated that such a program would provide
no additional benefit while imposing excessive costs on their business
operations, which would ultimately be

[[Page 103434]]

transferred to customers, placing an additional burden on U.S.
operators.
The FAA acknowledges the commenters' concerns regarding the primary
and secondary cost impacts to the industry. Given that the FAA is
offering in the final rule an expanded waiver and an exemption option,
foreign repair stations will be afforded several avenues to achieve
compliance with the rule and maintain current operations without
consequential additional costs.
2. Cost Data Based on U.S. Costs
Commenters including A4A, DG MOVE and ARSA expressed concerns about
the accuracy of the cost data included in the NPRM, stating the FAA has
not comprehensively assessed the practical and economic implications of
the rule implementation in foreign countries. These commenters believed
a complex and costly testing program of non-U.S. based personnel should
be supported by solid data, including a comprehensive cost basis that
is reflective of the local, regional situation and not based on United
States pricing. DG MOVE stated the cost of implementation cannot be
solely based on the cost for domestic organizations to comply since
there are practicalities of implementation specific to foreign
organizations that can have a large influence on cost, which cannot be
reliably estimated. DG MOVE further stated the impact assessment is
incomplete and does not allow for a relevant cost-benefit analysis.
ARSA stated that the cost estimate does not include the cost of
compliance if the rule cannot be implemented as if the repair station
was in the United States.
The FAA acknowledges the commenters' concern with respect to using
data denominated in U.S. dollars such data does do not represent costs
in local and regional situations. However, there is no country- or
region-specific data available. Therefore, the FAA has converted the
costs from U.S. dollars to exchange rates based on the Purchasing Power
Parity (PPP). The FAA acknowledges this adjustment only accounts for
exchange rates and heterogenous price levels and not heterogenous
additional costs countries may incur as compared to complying with the
rule within the jurisdiction of the United States, such as translation
or legal services. However, the FAA does not have the data to estimate
all the different cases that may arise in all the affected countries.
With respect to the practical and economic implications of the rule
implementation in foreign countries, the FAA has considered the
heterogenous impact this rule will have in different countries and has
concluded that an analysis of such implications would be impracticable
due to its complexity, uncertainty, and lack of necessary data.
Furthermore, as previously noted, legal challenges may limit some
countries from complying with the rule. Because of this uncertainty,
the FAA is providing a waiver option that will allow countries or
individual repair stations to demonstrate they have met the intent of
the rule if they have testing standards that meet the elements set
forth in this rule.
3. Costs Based on Compliance With HHS Requirements
Several commenters argued that the NPRM failed to account for the
costs of compliance with HHS requirements that are incorporated through
49 CFR part 40. Among other things, ARSA commented that the FAA must
assess the costs of obtaining HHS approval of laboratories and
personnel, use of approved testing equipment, and transportation of
specimens if necessary. ARSA argued that the FAA must review cost
assessments included in the earlier rulemaking proceeding promulgating
HHS requirements that would be applicable to foreign repair stations
under the rule.
The FAA acknowledges the commenters' concerns regarding compliance
with HHS requirements, which are included in 49 CFR part 40. However,
the FAA regulatory impact analysis (RIA) assumed all repair stations
would send their testing samples to already-approved HHS laboratories,
which are all in the U.S. and Canada, and would not elect to request
HHS approval of a laboratory in their own country. Therefore, the cost
of laboratory approval is not included in the RIA.
As previously discussed, in this final rule the FAA is allowing a
foreign government to obtain a waiver by requesting recognition of an
existing testing program promulgated under the laws of the country that
meets the minimum key elements set out in the regulation. If a foreign
government chooses not to avail itself of this option, an individual
foreign repair station may make its own request for a waiver based on
recognition of an existing testing program. Under this option, the FAA
may provide a waiver based on recognition of an existing testing
protocol to the country as a whole or to an individual repair station,
which would require no additional cost estimate.
4. Small Business and Subcontractor Costs
ARSA commented that the FAA must consider all tiers of small
business that must comply with the current and proposed regulations and
that the impact on small entities will be at least four times the
amount estimated. They stated each repair station must evaluate whether
their contractors and subcontractors will need to be included in their
own programs to conduct aircraft maintenance, and the FAA failed to
include the impact to contractors and subcontractors in the cost of the
rule. Further, because they were not included, ARSA contended that
these contractors and subcontractors did not have reasonable time to
comment on the proposal. A4A agreed with the comments made by ARSA
regarding the FAA's cost-benefit analysis.
The FAA acknowledges the impact to small businesses and their
subcontractors. The FAA has included an analysis on the impact to small
entities in the Regulatory Flexibility Act section.
With respect to subcontractors, this rule applies to foreign repair
stations who perform maintenance on part 121 air carrier aircraft
outside the U.S. The FAA did not estimate the cost to subcontractors
because if a foreign repair station decides to contract with another
non-certificated maintenance provider to perform safety-sensitive
aircraft maintenance functions on a part 121 air carrier aircraft, the
certificated repair station must include the personnel performing
aircraft maintenance functions in their testing program. This rule does
not require or allow a non-certificated contractor or subcontractor to
implement its own FAA or DOT drug and alcohol testing program, which is
why these parties are not accounted for in the rule. While this is
different than how FAA applies testing within the U.S., the mandate for
testing does not extend to non-certificated contractors or
subcontractors that perform maintenance on part 121 air carrier
aircraft outside the U.S.
5. Quantitative and Qualitative Benefits
APA and NDASA addressed the lack of economic data provided to the
FAA, stating the lack of data does not nullify the safety benefit of
the rule. NDASA suggested the FAA use a qualitative economic analysis
for the rule, rather than a quantitative analysis. NDASA further
commented the domestic program is effective as a deterrent, and the
efficacy of drug and alcohol testing

[[Page 103435]]

programs is well-proven and without question. The history of the
domestic program proves the deterrent effect of Federally mandated drug
and alcohol testing. NDASA asserted the more than 35 years of effective
deterrence is an important consideration that should be used to
evaluate the costs and benefits of this rulemaking.
NDASA further commented that if a quantitative analysis is needed,
the FAA should assess the costs of illicit drug use and substance abuse
disorders rather than the cost of equivalent testing programs in other
countries. NDASA referred to ``Injury Costs'' and the ``Substance Abuse
Cost Calculator'' on the National Safety Council website and the
calculator for workplace costs of substance use disorders on the
National Institute of Health's National Library of Medicine 2017
article from the Journal of Occupational Medicine for data.
The FAA agrees that drug and alcohol testing has certain
qualitative benefits that are discussed in other sections of this
preamble and the regulatory impact analysis supporting this final rule.
With respect to quantitative data, the FAA declines to rely on the
commenter's proposed sources of data for a quantitative analysis. Those
sources provide aggregated U.S.-based statistics and tools without a
basis for extrapolation to aviation-sector employers in foreign
countries. Furthermore, as noted in the NPRM and supporting documents,
there are no documented cases in which an accident was connected to a
repair station employee. Therefore, it is not possible to conduct a
quantitative benefits analysis for this rule. The quantitative cost
analysis the FAA conducted, as discussed herein and in the NPRM,
accounts for the costs of implementing and maintaining an alcohol and
drug testing program and the cost associated with submitting and
reviewing requests for waivers and exemptions.
6. Economic Equity Between Domestic and Foreign Repair Stations
TWU and one individual noted the NPRM would level the economic
playing field between foreign and domestic repair stations helping to
correct an imbalance that benefits foreign repair stations. TWU stated
the current regulatory requirements have created a loophole benefitting
foreign repair stations by enabling and effectively encouraging the
offshoring of aircraft maintenance jobs. Because foreign repair
stations are not required to meet the same regulatory requirements as
domestic repair stations, TWU claimed the number of foreign repair
stations has grown more than 40% since 2016, and approximately 56% of
the total workforce maintaining, repairing, and overhauling U.S.-
flagged aircraft is based outside of the United States. TWU pointed out
China specifically, stating they employ more than 7% of the global
workforce doing this work. They stated exempting these foreign repair
stations from the regulation creates a relative advantage for those
firms that are directly competing against the U.S. workforce.
In addition to the safety benefits, the FAA acknowledges that an
alcohol and drug testing program for foreign repair stations that is
equal to those programs required in the jurisdiction of the FAA would
create uniform standards for all repair stations. The FAA further
acknowledges the pathways provided in the final rule (e.g., waivers
pursuant to Sec. Sec. 120.9 and 120.10) will not create a uniform
standard for all foreign repair stations or between domestic and
foreign repair stations. The purpose of these regulations is to obtain
safety benefits equal to those required in the U.S. to the extent
permissible under the Congressional mandate, which requires a balance
between the safety benefits of domestic testing requirements deemed
acceptable by the Administrator and conflicting foreign requirements.
7. Specific Implementation Concerns
A number of commenters believed costs of implementation for a
domestic repair station are minimal compared to the burden on the
government and the foreign citizens because of the drug and alcohol
testing requirements. A4A pointed out such obstacles may be so
unreasonable to overcome or present such burdens that the cost of
compliance far outweighs any measurable benefit and asked the FAA to
strongly consider any obstacles that may result in validity issues,
unfairly threaten the careers of qualified maintenance employees, or
make compliance unreasonably burdensome for a repair station. RAA
agreed with this comment and asked the FAA to address how the FAA
envisions small repair stations to implement the program, especially in
remote locations. Commenters including ARSA and IATA pointed out many
examples of requirements of 49 CFR part 40 that will be difficult to
implement in a foreign country, such as the dependence upon
qualifications and training for service agents (e.g., Medical Review
Officers, collectors, and substance abuse professionals) that are
specific to the United States, or equipment such as alcohol screening
devices that may not be readily available in every country. IATA
commented that these testing devices also have very specific use and
care requirements that can only be performed by its manufacturer or a
certificated maintenance representative. New Era Drug Testing, MRO
Holdings, and ASAP addressed the need for established training for
collectors and other personnel in the testing process, including
collectors and MROs. New Era also brought up the need for multilingual
translators for MROs during donor interviews. ASAP further stated the
FAA needs to do further engagement with foreign governments and
stakeholders to fully understand the practical challenges of adapting
the procedures. Airbus Commercial Aircraft commented that not all
maintenance personnel should be automatically subject to alcohol and
controlled substance testing because this could lead to organizations
circumventing the costs associated with the establishment and
maintenance of a testing program. Specifically, Airbus stated that some
organizations maintaining components off wing may be tempted to deliver
their components to distributors who do not hold a part 145
certificate, or to establish such a company to distribute their
components. MOOG Inc., also stated that aircraft undergoing maintenance
may have components removed and replaced by new or maintained articles
which, as produced under FAA part 21 requirements, are not subject to
drug and alcohol programs, meaning a component removed from a part 121
aircraft and replaced with a new component will not be manufactured
with a drug and alcohol program compliant to 14 CFR part 120 and 49 CFR
part 40.
Commenters including A4A, DG MOVE, MRO Holdings, Airbus, and New
Era expressed concern for the lack of laboratories certified by the
Department of Health and Human Services under the National Laboratory
Certification Program outside of the United States and the significant
burden associated with shipping specimen to a laboratory in the United
States in a manner that complies with HHS's strict chain of custody
requirements, or attempting to get a local laboratory certified, which
they stated is not a cost accounted for in the rule. A4A and MRO
Holdings also noted the possibility of specimen validity and the
potential for a sample to be exposed to extreme temperature variances,
causing distortion if repair stations are required to ship specimens
across borders. Other commenters mentioned foreign repair station
operations in remote locations where available individuals qualified to

[[Page 103436]]

perform collections as well as access to timely resources and shipping
options are limited. Airbus commented it is unclear why the flexibility
provision applicable to the domestic repair stations not electing to
implement a drug and alcohol testing program is not equally offered to
foreign part 145 certificated repair stations and the lack of suitable
solutions may convince some part 145 certificated repair stations
located outside the U.S. to surrender their certificate, for example,
because the volume of their activities with U.S. operators no longer
justifies their investment.
A SAP directory service that supported the rule, <a href="http://SAPlist.com">SAPlist.com</a>, also
brought attention to the difficulty outside of cost to implementing the
return-to-duty process outside of the U.S., citing language barriers,
exams, time differences, and international referrals for substance
abuse professionals. The commenter raised several questions regarding
the SAP process, including whether the SAP must be in the U.S. or in
the foreign country. If the SAP is in the U.S. and provides a virtual
assessment, the commenter asked how a SAP could make referrals for
treatment in another country, noted language differences, online
resources being in another language, time differences, and virtual
assessments requiring certain technologies. If the SAP is in the
foreign country, the commenter raised the issue of ensuring the SAP is
qualified to DOT standards with no qualification training or exams in
another language than English, and SAP credentials outside the U.S. The
commenter also asked whether DOT will provide the regulations in other
languages. DG MOVE also mentioned the cost of training and
qualification of SAPs. ASAP raised similar questions about
international SAP qualifications; the availability of international
SAPs and treatment programs that understand the local requirements and
U.S. regulations; the geographical, logistical, and legal challenges of
international telehealth services, international substance use
treatment protocols; and whether repair stations will need to make
international referrals. ASAP commented adapting part 40 requirements
for use in foreign certificated repair stations involves careful
consideration of the local legal systems, cultural norms, and available
substance abuse treatment resources.
A4A recommended the FAA undertake a full cost-benefit analysis of
the burdens of implementation as recommended by OMB Circular No. A-4,
which states analysis should ``look beyond the obvious benefits and
costs of your regulation and consider any important additional benefits
or costs, when feasible.'' A4A requested a supplemental proposal to
minimize these obstacles and present an updated regulatory impact
analysis.
The FAA acknowledges commenters' extensive concerns about
implementing the requirements of 14 CFR part 120 and 49 CFR part 40
outside the territories of the U.S. Further, the FAA acknowledges
commenters' concerns that some testing or procedural requirements in
the regulations would be especially burdensome and costly to meet for a
part 145 repair station located outside the territory of the U.S.
(e.g., use of HHS-certified laboratories). As discussed above, this
final rule expands waiver options to foreign governments on behalf of
repair station operators within its territory. The waiver option is now
also available to an individual foreign repair station, which may seek
a waiver based on recognition of an existing testing program
promulgated under the laws of the country as a compatible alternative
that meets the key elements set out in the regulation. By obtaining a
waiver based on recognition, a foreign repair station may meet the
requirements of this final rule without applying 14 CFR part 120 and 49
CFR part 40 directly. It will allow them to present a program or other
requirements that exist in their country's existing framework to the
Administrator for recognition as the basis for the waiver, which will
eliminate the need to meet requirements in 14 CFR part 120 and 49 CFR
part 40 that have been identified by commenters as exceedingly
difficult to implement.
The FAA also acknowledges the commenters' concerns regarding the
secondary cost impacts to the industry. Given that FAA has provided
more flexibility for the waiver options and there are exemption options
in the final rule, there will be several avenues for foreign repair
stations to comply with the rule and maintain current operations
without consequential additional costs. The regulatory impact analysis
has been updated to reflect the additional means of compliance included
in the final rule.

J. Extending Testing to Part 121 Maintenance Personnel

In the NPRM, the FAA sought comments as to whether the testing
requirements should be extended to foreign aircraft mechanics working
directly for part 121 carriers. Commenters were 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.
Three commenters who supported the NPRM, including the Teamsters,
stated that if the goal of the NPRM is to eliminate an aviation
maintenance ecosystem in which the ability to uphold a single level of
safety is predicated on the geographic location of the maintenance
facility, all aircraft mechanics working on part 121 aircraft should be
captured in the rulemaking. The Teamsters and TWU warned that without
this coverage, the rule may create an incentive for part 121 carriers
to move maintenance from a contracted part 145 repair station to an in-
house facility where the airline can evade the regulatory costs
associated with compliance. NDASA pointed out the statute does not
explicitly restrict the FAA from including part 121 mechanics, and
adding them to the rule is consistent with the statute. Airbus
Commercial Aircraft commented that the absence of drug and alcohol
testing requirements for employees of part 121 certificate holders
located outside the United States may create an inconsistent treatment
of maintenance personnel working at the same location and result in a
weakness of a safety net.
Opposing commenters also commented on the proposal to include part
121 air carrier employees who perform aircraft maintenance, with A4A
stating FAA's safety data does not support an expansion of the rule and
the FAA has not adequately considered or analyzed the costs and
benefits of an expansion. A4A and GAMA noted that the FAA should stay
within the confines of the statutory mandate and not expand the scope
without support from safety data. By contrast, ARSA argued that the FAA
must explain why it is not extending testing requirements to similarly-
situated part 121 employees in foreign countries, and the failure to
apply drug and alcohol testing in a uniform and consistent manner
belies the FAA's requirement to ensure aviation safety. A4E also
commented on the differing treatment of employees from part 145 repair
stations and part 121 operators, noting that the proposed regulations
would not ``level the playing field'' for these entities because
maintenance personnel employed by part 121 operators outside the U.S.
are not subject to drug and alcohol testing while employees serving the
same function for part 145 repair stations outside the U.S. would be
under these regulations. The Lufthansa Group similarly commented that
the proposal would not create a ``level playing field.''
In response to the NPRM, the FAA received no safety data justifying
the

[[Page 103437]]

benefits and costs of expanding drug and alcohol testing requirements
to foreign aircraft mechanics working directly for part 121 carriers.
Because the statutory mandate specifically required 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,
and because the FAA lacks safety data to support an expansion of the
rule, this final rule does not expand the scope of the rule to foreign
aircraft mechanics working directly for part 121 carriers.
The FAA acknowledges comments noting that the final rule may result
in differing treatment of part 145 and part 121 employees outside of
the U.S. but finds the commenters' arguments unpersuasive. As discussed
above, the FAA does not have an articulable safety basis to extend drug
and alcohol testing to part 121 employees outside the U.S., and
Congress has not instructed the FAA to do so. By contrast, Congress has
mandated the FAA to require such testing of part 145 employees.
Accordingly, though commenters suggested that the FAA must extend
testing requirements to part 121 employees to ensure equivalent
treatment to part 145 employees, the FAA concludes that the suggestion
is misplaced because the record before the agency does not support an
extension.

K. EU and International Civil Aviation Organization (ICAO)

A4E commented a European Union-wide solution is preferable for
waivers and exemptions. The Lufthansa Group commented they would like
to see a waiver option established at the European Union level, since
they have multiple repair stations located outside of Germany but
within the European Union, each with its own defined labor law rules,
regulations, and restrictions. This process should allow for bilateral
discussions and negotiations and conclude with a formal agreement that
expressly recognizes the laws of each country and appropriately
addresses any inconsistencies at the country level, rather than the
individual repair station level. They stated this will allow the
foreign government to provide a single and unified position on its laws
versus the potential for individual repair stations to inconsistently
interpret the laws of their country, which may result in contrary
waivers or exemptions for repair stations in the same country, and
thereby reducing the number of waiver and exemption requests the FAA
and DOT would receive. Commenters stated this cooperation between
governments would foster safety, the respective rights of individuals,
consistency, and operational, administrative, and implementation
efficiency regarding maintenance operations and employees.
Although some commenters suggested an EU-wide option for submitting
waivers and exemptions, the FAA has not implemented this option. An EU-
wide option is also not available for the second pathway of compliance
with this rule where a foreign government, on behalf of its repair
station operators within its territory, or an individual repair station
may request a waiver based on recognition of an existing testing
program promulgated under the laws of the country as a compatible
alternative. Because each country has its own individual laws and
requirements that may impact its drug and alcohol testing programs,
each foreign government is in the best position to know the laws
imposed on their own citizens.
Eighteen commenters including A4E, IATA, CAA, BDLI, GE Aerospace,
Airbus Commercial Aircraft, and GAMA stated that the appropriate
vehicle through which to require drug and alcohol testing at foreign
repair stations would be a new ICAO initiative. These commenters
believed consultation and coordination with ICAO member States is the
only way to ensure the FAA meets the statutory requirement to be
``consistent with the applicable laws of the country where the repair
station is located.'' Specifically, the DG MOVE called upon the FAA to
bring this issue to the attention of ICAO to examine the safety case
and pursue a global solution through the establishment of international
standards, where warranted.\36\ GAMA stated ICAO should issue Standards
and Recommended Practices (SARPs) governing such testing to ensure a
single Member State does not violate the national sovereignty of others
and that consultation and coordination through ICAO and with ICAO
member states is the only method that can ensure the final rule is
consistent with the applicable laws of a foreign repair station's
country. Commenters believed 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. A4A noted the single request the FAA made for countries to
support ICAO action to establish alcohol and controlled substance
testing requirements may have been compliant with the mandate, but it
is not enough to reflect the FAA's support for international
standardization. A4A mentioned other countries have continued their
push for ICAO action on minimum standards for drug and alcohol testing,
and they encouraged the FAA to continue efforts at ICAO for an
international standard in lieu of the proposed rule. IATA also
commented that an agreement through ICAO would preclude
extraterritorial mandates and violations of local laws while providing
the framework for a global solution and that without such a solution,
they are concerned that the FAA's current extraterritorial proposal
would invite retaliation by other governments.
---------------------------------------------------------------------------

\36\ The FAA notes that, after the comment period closed, the
FAA engaged in a meeting with DG MOVE and EASA for the Bilateral
Oversight Board for the U.S.-EU Safety Agreement on June 11, 2024.
At that time, DG MOVE reiterated its concerns with the proposal and
specifically suggested collaboration with the FAA at ICAO to pursue
a more global approach on the issue. The FAA uploaded a Memorandum
to the docket summarizing the interaction as of July 8, 2024.
---------------------------------------------------------------------------

A supporting commenter, APA, stated that approaches to working with
other countries and ICAO to develop joint guidelines have yielded
little progress in implementing or enforcing drug and alcohol standards
internationally. They stated that despite jointly developed ICAO
standards in Annex 1 to the Convention on International Civil Aviation
and various countries' aviation regulations prohibiting the use of
drugs and alcohol, many countries either do not mandate compliance
testing for aviation personnel or they exclude maintenance personnel
from testing.
The FAA has supported the development of international drug and
alcohol testing standards since the Congressional mandate was first
introduced and believes that they could help deter and detect drug use
and alcohol misuse that could compromise aviation safety. In addition
to promulgating a proposed rulemaking, the FAA Modernization and Reform
Act of 2012 sought to direct the Secretaries of State and
Transportation, acting jointly, to request the governments of foreign
countries that are members of ICAO to establish an international
standard for alcohol and controlled substances testing of persons who
perform safety-sensitive work on commercial air carriers. The
Department of State sent a cable to all embassies on October 19, 2012.
Although the response was minimal, most of the member states that did
respond supported these efforts. However, as explained in the NPRM,
ICAO standards still do not require ICAO Member States to establish (or
direct industry to

[[Page 103438]]

establish) testing programs to deter or detect drug use and alcohol
misuse by aviation personnel in the performance of safety-sensitive
functions. 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 safety-sensitive
maintenance personnel. Should ICAO adopt drug and alcohol program
standards in the future, it is FAA policy to conform to ICAO SARPs to
the maximum extent practicable in keeping with U.S. obligations under
the Convention on International Civil Aviation.
The FAA reconsidered and expanded its waiver options for the final
rule, whereby a foreign government, on behalf of its repair station
operators, or an individual foreign repair station, may seek a waiver
based on the laws of the country. This alternative to meeting the
requirements of 14 CFR part 120 and 49 CFR part 40 will allow a repair
station to operate a testing program based on the laws of its country
and current testing regimes or consequences that exist. The FAA
publishes this final rule in accordance with the Act's statutory
mandate in an area within which there are no applicable ICAO SARPs. The
FAA expects this waiver to more easily allow for the application of a
testing program that is in alignment with any future SARPs.

L. Scope of Safety-Sensitive Functions

Commenters requested clarification on what qualifies as an aircraft
maintenance function. A4E argued the FAA failed to define the term in
its regulation and has left it up to the Flight Standards Service of
the FAA to determine, causing significant confusion. Airbus stated they
believe only maintenance personnel performing tasks that could result
in a failure, malfunction, or defect endangering the safe operation of
the aircraft if not performed properly or if improper parts or
materials are used should be considered for testing, and GAMA specified
the testing should only apply to those performing ``heavy maintenance''
to meet the language of the statute. Some foreign repair station
commenters expressed confusion about whether their repair station
performs aircraft maintenance functions or stated they do not perform
it, such as Excel Aerospace in Singapore and Honeywell in Brazil. There
was also confusion among commenters about the status of manufacturing
and whether it is considered maintenance, and IHI Corporation requested
examples of target roles of safety-sensitive maintenance functions.
Airfoil Services in Malaysia sought clarification if they need a
program because they perform maintenance on components that are
delivered to a customer to be assembled later. Another foreign repair
station, Tamagawa Aero Systems in Japan, asked which employee category
they fall under in Sec. 120.105. ARSA also commented the FAA is
targeting maintenance providers, and no other type of safety-sensitive
function regulated under 14 CFR part 120 is required to test at ``any
tier'' in the contract.
Further, Airbus proposed limiting this rule to individuals with the
authority to designate (identification/callout), implement, and/or
perform inspection of Required Inspection Items (RII), which they state
would make the requirements match the direction given by Congress.
Airbus stated that when the FAA defined persons involved in aircraft
maintenance (broad sense) with safety-sensitive functions, it implied
that all personnel involved in maintenance carry out aviation safety-
related aircraft maintenance. It stated the FAA should exclude
maintenance personnel that are involved in aircraft maintenance that
does not put aviation safety at risk.
Airbus also commented with respect to maintenance and preventive
maintenance duties, stating it is unclear whether the qualifying term
`aircraft' is to refer to aircraft maintenance in the broad sense
(e.g., aircraft maintenance vs. airport maintenance) or maintenance
performed on aircraft (i.e., on-wing), excluding maintenance on
articles and components not installed on an aircraft (i.e., off-wing).
Airbus proposed a regulatory text change to 14 CFR 120.105(a) and
120.215(a) to read: ``Duties related to required inspections of
maintenance and alteration items of aircraft'' instead of ``aircraft
maintenance and preventive maintenance duties.'' They stated this
wording would allow the Administrator to use any appropriate
designation, free from ambiguity, to target a precise population of
personnel involved in maintenance and alteration of aircraft.
The FAA disagrees that further explanation or definition of
aircraft maintenance functions are necessary in the rule. The drug and
alcohol testing regulations intentionally do not differentiate between
heavy or safety critical and non-safety critical forms of maintenance.
When determining whether a safety-sensitive employee performs aircraft
maintenance duties, whether under a foreign or domestic repair station,
impacted parties should consider the duties of their employees as they
relate to the FAA's definition of maintenance under 14 CFR 1.1 and 14
CFR part 43. According to 14 CFR 1.1, maintenance includes inspection,
overhaul, repair, preservation, and the replacement of parts, but
excludes preventive maintenance. For example, a manufacturer that
performs a test on a component to determine the extent of repairs
necessary or the serviceability of a component is performing
maintenance since the testing performed on the aircraft component may
be part of an inspection requirement in the technical data being used
in the testing process. The Flight Standards Service aviation
maintenance inspectors are the experts in determining what functions
meet the definitions of aircraft maintenance. The Flight Standards
Service and the Drug Abatement Division in the FAA's Office of
Aerospace Medicine developed guidance about the most common functions
that are considered aircraft maintenance, which is provided in FAA
Advisory Circular (AC) 120-126.\37\ If an impacted party needs further
guidance after reviewing the definitions and examples provided in FAA's
AC 120-126, they should consult with the Flight Standards Service or
their FAA Principal Maintenance Inspector (PMI). The FAA has made no
regulatory changes to the definition of aircraft or maintenance based
on these comments.
---------------------------------------------------------------------------

\37\ FAA Advisory Circular 120-126, Guidelines to Establish,
Implement, and Maintain a DOT/FAA Drug and Alcohol Testing Program
(Jul. 10, 2024). <a href="https://www.faa.gov/regulations_policies/advisory_circulars/index.cfm/go/document.information/documentID/1042452">https://www.faa.gov/regulations_policies/advisory_circulars/index.cfm/go/document.information/documentID/1042452</a>
---------------------------------------------------------------------------

M. Miscellaneous Comments

Out of Scope Comments. One individual commenter stated the FAA
should require testing and maintain the same standards as in the U.S.,
even if the laws of a country do not allow it. The FAA can override
neither, first, the sovereignty of another country, nor, second, the
Congressional direction in 49 U.S.C. 44733 to promulgate a rule
requiring part 145 repair station employees be subject to an alcohol
and controlled substances testing program that is consistent with the
applicable laws of the country in which the repair station is located.
One individual commenter stated the FAA should include truck drivers
from Mexico and Canada when crossing the border to the U.S. The
comments are outside the scope of the Congressional mandate and this
rulemaking.
Excluded Countries. A4E commented on their concern for the creation
of a

[[Page 103439]]

level playing field since the NPRM will not apply to countries without
a requirement for a part 145 repair station certificate (e.g., Canada).
Like part 121 employees outside the U.S. discussed in section IV.J, the
FAA does not have an articulable safety basis to extend drug and
alcohol testing generally to employees performing safety-sensitive
maintenance functions for an organization that does not hold a part 145
repair station certificate located outside the territory of the U.S.,
and Congress has not instructed the FAA to do so. Instead, Congress has
mandated the FAA to require such testing of part 145 repair station
employees responsible for safety-sensitive maintenance functions on
part 121 air carrier aircraft. Accordingly, though the commenter
suggested that the FAA must extend testing requirements to non-
certificated maintenance organizations that perform safety-sensitive
maintenance, the FAA concludes that the suggestion is misplaced because
the record before the agency does not support an extension.
Oral Fluid Testing. NDASA stated they believe the use of oral fluid
testing will make implementation of part 40 easier outside of the U.S.
once there are oral fluid laboratories available. Specifically, it may
reduce the number of petitions for waiver or exemption from the rule
since other countries may deem oral fluid testing less intrusive from a
privacy perspective than urine testing. They stated oral fluid testing
is preferred in Australia, New Zealand, and other countries. The FAA
acknowledges this comment and agrees that the use of oral fluid drug
testing may make drug testing collection more accessible to foreign
repair stations.
Guidance. Airbus commented that it was unclear who is the principal
maintenance inspector for European Approved Maintenance Organizations
(AMOs) that obtained their U.S. part 145 repair station certificate
under the U.S.-EU BASA MAG. Airbus recommended that guidance material
should be developed, reviewed, and tested with several affected AMOs
before the entry into force of the final rule of this rulemaking
proposal to ensure a smooth implementation. The FAA acknowledges this
comment and will work with AMOs to the extent necessary to comply with
the final rule.
Random Testing Rates. MRO Holdings expressed concern as to how the
FAA will calculate the random pool testing rate. The rate is determined
by reviewing the positive rate for the ``entire industry,'' but these
rates will differ from country to country, which could cause countries
with low rates to have burdensome and costly tests that are not aligned
with usage rates of that country. Foreign repair stations that are
required to meet the requirements of 14 CFR part 120 and 49 CFR part 40
may be required to submit an annual report of testing statistics in
accordance with 14 CFR 120.119(a) and 120.219(b)(1), which allows the
FAA to determine the positive rate for the entire industry. Because the
Administrator's decision to increase or decrease the minimum annual
percentage rate for random drug testing is based on the reported
positive rate for the entire industry, testing data submitted by
foreign repair stations will be included in this calculation. Foreign
repair stations with a waiver under section 120.10 are exempt from the
obligations under subparts E and F of 14 CFR part 120; therefore, data
will not be provided or considered in a random testing rate.
Addition of Unannounced Inspections. One individual commented that
the FAA should mandate all foreign Aviation Maintenance Inspection and
Repair on all U.S.-registered commercial aircraft, components, and
articles to also mirror the U.S. by allowing unannounced inspections by
the FAA and requiring duty time limitations. The commenter further
stated that the NPRM's current provisions, though promising, may
benefit from a more granular examination to enhance the effectiveness
of the proposed rule and address potential loopholes that might arise
in practical implementation. The final rule implements a statutory
mandate to require acceptable drug and alcohol testing of certain part
145 repair station employees outside the U.S. consistent with local
laws where the repair station is located. Because this mandate does not
include any changes to inspections or duty time limitations, this
comment is outside the scope of this rulemaking.
More Inclusive Mandate. An individual commented that they advocate
for a more inclusive mandate to mirror current U.S. regulations to
ensure that the final regulations are not only effective but also
resilient to the evolving landscape of Commercial Aviation Maintenance,
Inspection and Repair to include both aircraft, components, and
articles of all parts 121 and 145 entities outside of the U.S. This
comment is outside the scope of the Congressional mandate and this
rulemaking. This final rule implements a mandate to require acceptable
drug and alcohol testing of certain part 145 repair station employees
responsible for safety-sensitive maintenance on part 121 air carrier
aircraft outside the U.S. consistent with local laws where the repair
station is located. Congress did not direct the FAA to comprehensively
regulate entities or activities outside the U.S.
Withdrawal of the Rule. ARSA commented that the FAA may comply with
the statutory mandate by withdrawing the NPRM. The FAA disagrees.
Section 302 of the 2024 Act directed the FAA to issue a final rule that
carries out the requirements of section 2112(b) of the 2016 Act within
18 months of the 2024 Act's enactment. Conversely, the 2016 Act
required a rulemaking to be ``finalized.'' Accordingly, Congress has
directed the FAA to publish these regulations, and withdrawal would not
be considered publication of a final rule.
Definitions. An anonymous commenter requested the FAA define the
term ``part 121 air carrier aircraft,'' specifically asking whether it
means the aircraft needs to be on the part 121 Operations
Specifications, and if it needs to be in revenue service. The commenter
believed a definition is necessary, and that the explanation in the
preamble to the rule was insufficient. The FAA disagrees that a
definition of ``part 121 air carrier aircraft'' is needed in this rule.
Historically, testing applies to maintenance personnel who repair
aircraft or aircraft parts listed on the part 121 air carrier's
Operations Specifications (D085).

V. Severability

As discussed earlier in the final rule, Congress directed the FAA
to issue a final rule that requires 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. 49 U.S.C.
44733(d)(2).\38\ Consistent with that mandate, the FAA is requiring
foreign repair stations to comply with 14 CFR part 120 and 49 CFR part
40, subject to any waivers and exemptions. However, the FAA recognizes
that these distinct pathways for compliance and certain provisions of
this final rule will affect foreign repair stations and various
stakeholders in different ways. Therefore, the FAA finds that the
various provisions of this final rule are severable and able to operate
functionally if severed from each other.

[[Page 103440]]

In the event a court were to invalidate one or more of this final
rule's provisions, the remaining provisions should stand, thus allowing
the FAA to continue to carry out Congress's statutory commands and
objectives concerning the safety of maintenance on part 121 air carrier
aircraft conducted by certificated repair stations located outside the
U.S.
---------------------------------------------------------------------------

\38\ Section 302 of the 2024 Act directed the FAA to issue a
final rule implementing Congress's mandate in 49 U.S.C. 44733(d)(2).
---------------------------------------------------------------------------

VI. Regulatory Notices and Analyses

Federal agencies consider the impacts of regulatory actions under a
variety of executive orders and other requirements. First, Executive
Order 12866, Executive Order 13563, and Executive Order 14094
(``Modernizing Regulatory Review'') direct that each Federal agency
shall propose or adopt a regulation only upon a reasoned determination
that the benefits of the intended regulation justify the 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) prohibits
agencies from setting standards that create unnecessary obstacles to
the foreign commerce of the United States. 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 that may
result in the expenditure by State, local, and 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 $183 million using the most
current (2023) Implicit Price Deflator for the Gross Domestic Product.
The FAA has provided a detailed Regulatory Impact Analysis (RIA) in the
docket for this rulemaking. This portion of the preamble summarizes the
FAA's analysis of the economic impacts of this rule.
In conducting these analyses, the FAA has determined that this
rule: will result in benefits that justify costs; is not a significant
regulatory action under section 3(f)(1) of Executive Order 12866 but
raises legal or policy issues for which centralized review would
meaningfully further the President's priorities or the principles set
forth in section 3(f) of Executive Order 12866, as amended by Executive
Order 14094; will create unnecessary obstacles to the foreign commerce
of the United States; and will not impose an unfunded mandate on State,
local, or tribal governments, or on the private sector. These analyses
are summarized below.

A. Summary of the Regulatory Impact Analysis

Total Benefits and Costs of This Rule
In response to Congressional direction, the FAA requires
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 substances and alcohol testing program
consistent with the applicable laws of the country in which the repair
station is located. This rule requires a part 145 repair station
located outside the territory of the U.S. to cover its employees
performing safety-sensitive 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), it 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 the waiver authority
established in this rule. In addition, foreign governments, on behalf
of their repair station operators within their territories, may request
a waiver based on recognition of existing requirements promulgated
under the laws of the country as a compatible alternative that contains
the minimum key elements of 14 CFR part 120. However, if a foreign
government chooses not to avail itself of this option, Sec. 120.10
will provide that an individual foreign repair station may make its own
request for waiver based on recognition of an existing testing program
that meets the key elements identified in the regulation.
Although the FAA was unable to identify any quantifiable benefits
to this rulemaking at this time, this rulemaking applies the FAA's
existing primary tool for detecting and deterring substance abuse by
safety-sensitive aviation employees, especially illegal drug use,
throughout the international aviation community to enhance aviation
safety.
Since the rule provides multiple opportunities for waiver, the FAA
estimated low- and high-cost cases. The low-cost case assumes all
countries with certificated repair stations will submit a request for
waiver based on recognition. The total undiscounted cost is $129,012
with the cost to industry at $48,129 and $80,882 to the FAA. At a seven
percent discount rate, the total cost is $116,690, $64,540 annualized,
and $123,459 at a three percent discount rate, $64,521 annualized. The
benefits remain the same in the low-case as in the high-case. In the
high-cost case the total cost, at seven percent present value, of this
rule equals the foreign repair station cost of $62 million, plus FAA
cost of $6.5 million for a total of $68.5 million ($69.8 million at
three percent present value) over five years. The FAA has placed the
Regulatory Impact Analysis for this rule in the docket for this
rulemaking.
Who is potentially affected by this rule?
<bullet> Part 145 Certificated Foreign Repair Stations outside the
U.S. that perform safety-sensitive maintenance functions on part 121
aircraft.
<bullet> The FAA Office of Aerospace Medicine.
Costs of This Rule
Part 145 certificated foreign repair stations outside the U.S. and
the FAA will incur the cost of this final rule. In the low-cost case
the FAA assumes all countries with certificated repair stations will
submit a request for a waiver based on recognition. The cost to the
industry consists of reporting and submission costs for the request.
The cost to the FAA consists of review of the request.

Table 2--Price Level Adjusted Cost for the Waiver Based on Recognition
[2022 U.S. dollars]
----------------------------------------------------------------------------------------------------------------
Discounted Discounted
Year Industry FAA Total costs (7%) Costs (3%)
----------------------------------------------------------------------------------------------------------------
1............................................ $24,468 $41,063 $65,532 $61,244 $63,623
2............................................ 23,661 39,819 63,480 55,446 59,836
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[[Page 103441]]

Total.................................... 48,129 80,882 129,012 116,690 123,459
------------------------------------------------------------------
Annualized................................... ........... ........... ........... 64,540 64,521
----------------------------------------------------------------------------------------------------------------

In the high-cost case, the estimated cost of the final 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 will consist of developing a
drug and alcohol testing program, training, testing safety sensitive
maintenance employees for drugs and alcohol, and documentation. Total
cost to foreign repair stations over five years, at seven percent
present value, sums to $49.6 million with an annualized cost of $12.1
million. At three percent present value, estimated total cost to
foreign repair stations is $55.6 million with an annualized cost of
$12.1 million.

Table 3--Cost to Part 145 Foreign Repair Stations Over 5 Years
[$Millions] *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Program and
training Testing (drug and Annual Total cost Total cost
Year development & Training alcohol) reports (7% PV) (3% PV)
maintenance
--------------------------------------------------------------------------------------------------------------------------------------------------------
1................................................................. $0.4 $7.6 $0.0 $2.1 $9.4 $9.8
2................................................................. 0.3 1.0 4.5 6.8 11.0 11.9
3................................................................. 0.3 1.0 4.5 6.8 10.4 11.6
4................................................................. 0.3 1.0 4.6 6.9 9.7 11.3
5................................................................. 0.3 1.0 4.6 6.9 9.1 11.0
-------------------------------------------------------------------------------------
Total......................................................... 1.6 11.7 18.2 29.4 49.6 55.6
--------------------------------------------------------------------------------------------------------------------------------------------------------
*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
$6.5 million with an annualized cost of $1.6 million. At three percent
present value, total cost is $7.4 million with an annualized cost of
$1.6 million.
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 reductions in lost 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

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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.