The Honorable Michael P. Huerta
Federal Aviation Administration
800 Independence Avenue, SW
Washington, DC 20591
RE: Drug and Alcohol Testing of Certain Maintenance Provider Employees
Located Outside of the United States
Docket No. FAA-2012-1058; Notice No. 14-02
Federal Aviation Administration
Dear Administrator Huerta:
On behalf of the Transportation Trades Department, AFL-CIO (TTD), I write to comment on the Federal Aviation Administration’s (FAA) Advanced Notice of Proposed Rulemaking (ANPRM) that begins the implementation of section 308(d)(2) of the FAA Modernization and Reform Act of 2012 (PL 112-95). By way of background, TTD consists of 32 affiliated unions that represent workers in all modes of transportation, including the International Association of Machinists and Aerospace Workers (IAM) and the Transport Workers Union of America (TWU), which represent aviation mechanics, and the Professional Aviation Safety Specialists (PASS), which represents FAA inspectors. These unions have been leaders in seeking to improve the safety, security and oversight of contract repair stations and have a vested interest in this rulemaking.
At the outset, we express our strong support for the effort to begin implementation of section 308(d)(2) which helps improve the safety of outsourced maintenance. TTD and our member unions have long sought to ensure that aircraft repair stations located outside the U.S. are held to the same safety, security and oversight rules that govern domestic stations. As part of this effort, we have urged the FAA and Congress to eliminate the double standard that allows foreign repair stations working on U.S. aircraft to evade drug and alcohol testing mandates that apply to workers in the U.S. performing the exact same type of work. We have always argued that if testing rules are needed to ensure the safety and integrity of aircraft repair and maintenance done at U.S. carriers and domestic repair stations, then these same rules should cover workers at repair facilities located outside the U.S.
We were therefore pleased that Congress, as part of the FAA Modernization and Reform Act, directed the FAA to issue a proposed rule by February 14, 2013 to require all personnel working at part 145 certificated repair stations who are responsible for safety-sensitive maintenance of part 121 aircraft to be subject to an Administrator-approved drug and alcohol testing program. Subsequent to passage of this law, we urged the FAA to swiftly implement this mandate in the interest of safety and to ensure that the agency meet the deadline for a proposed rule as directed by Congress. We also understand that Members of Congress have raised this matter with the agency. Given the clear intent of Congress to move this rulemaking forward and the safety issues implicated when federal rules allow a double-standard to exist, we are disappointed that the FAA is now more than a year late in issuing proposed rule and is just now offering this Advanced Notice of Proposed Rulemaking.
We hope the FAA will now move this rulemaking expeditiously and will do so in a manner that ensures the highest level of safety at foreign repair stations. To assist the FAA in developing this important rulemaking, we provide the following comments and recommendations based on the ANPRM.
Waivers of Drug and Alcohol Testing
The FAA requests feedback on whether it should include in its regulations the ability of a foreign repair station to waive the drug and alcohol testing requirements if its country’s laws conflict with the FAA’s rulemaking.
We recognize that the statute provides that a testing regime be “consistent with the applicable laws of the country in which the repair station is located.” However, the FAA must implement this particular provision cautiously and narrowly while making safety its guiding principle.
Repair stations that seek exemption from the FAA’s regulation must not dictate which requirements apply to themselves or be the arbitrator in determining whether such requests are valid. Rather, the FAA must carefully review each request, examining the country’s laws and weighing the potential costs of relaxing its important safety regulations.
Program Coverage and Elements of Acceptable Drug and Alcohol Testing
The FAA also poses several questions about the elements that should be required of drug and alcohol testing regimes in order to receive the Administrator’s approval. Simply put, we believe that the stringent testing requirements that are in place and currently applicable to domestic personnel performing safety-sensitive maintenance should be applied to those working at foreign repair stations.
In particular, we believe foreign maintenance personnel must be subject to pre-employment; random; post-accident; reasonable cause; and return-to-duty and follow-up drug and alcohol testing, just as domestic workers are. These tests should screen for the same substances for which domestic personnel are tested. Controlled substance and alcohol tests should be measured, evaluated and conducted in the manner prescribed in 14 CFR Part 120 and 49 CFR Part 40. Similarly, foreign workers who violate drug and/or alcohol regulations should face the same penalties and follow the same return-to-duty procedures as those applied to domestic workers.
Furthermore, while Section 308(d)(2) directs the FAA to issue a rule requiring alcohol and controlled substance testing of foreign maintenance workers performing work on part 121 carriers, such rules should also include testing of foreign maintenance personnel who perform applicable duties on part 135 and 91.147 carriers as well. We are well aware of the practice of part 135 operators sending their aircraft components offshore for repair at foreign repair stations. As the FAA notes, 14 CFR part 120 requires employees performing aircraft maintenance and preventive maintenance duties on part 121, 135 or 91.147 certificated aircraft within the U.S. to be subject to drug and alcohol testing. The same safety concerns dictate testing of foreign personnel working on those categories of aircraft as well.
Random Drug and Alcohol Testing
The FAA explains that domestic maintenance workers are subject to random drug and alcohol tests, and that the element of surprise associated with these tests are an effective deterrent to workers’ use of illegal substances or alcohol while at work. The FAA seeks feedback on other countries’ laws that permit or prohibit random testing, as well as input on alternatives that could be used if a country does not allow such testing to take place.
As explained above, we do not support separate standards for maintenance workers making the same repairs on the same U.S. aircraft simply because they work in different countries. In order to receive FAA certification and be able to service U.S. aircraft, foreign repair stations and their employees must be held to the same level of accountability as domestic workers, and this includes random drug and alcohol tests.
Testing Procedures for Foreign Repair Station Employees
We also want to ensure that foreign maintenance workers are subject to strong testing procedures. As the agency notes, the Department of Transportation (DOT) and the FAA have several layers of protection in place for domestic workers to ensure the validity and verification of their specimens throughout the testing process. We recognize that the physical location of foreign maintenance personnel complicates the ability to expand the existing testing procedures to those overseas. However, to help protect personnel samples, we request that the agency consider requiring foreign workers to provide samples at DOT-certified foreign facilities and for those samples to be shipped to U.S. laboratories already performing tests for domestic workers. Doing so will help ensure that regardless of country of origin, samples are guarded against adulteration, mistaken specimen identification, and other potential issues.
Foreign Countries’ Laws and Regulations
The FAA requests information regarding the laws and regulations of the countries in which foreign repair stations are located. In particular, the agency asks whether these countries require drug and alcohol testing of aviation personnel; the types of testing permitted; and whether other factors affect the permissibility of testing in a given country.
While the FAA states that 120 certificated foreign repair stations would be affected by the final rule, the specific countries in which they are located are not identified in the ANPRM or available on the FAA’s website. Without this information, the ability of private parties to identify the applicable laws and regulations relevant to this proceeding is severely hindered. As a result, a great portion of the substantive data the FAA will receive and use to inform its rulemaking will likely come from foreign government authorities, some of which may have an interest in indicating that a final rule would conflict with their laws that govern testing standards. Consequently, the FAA must ensure the accuracy of this information before it is used as a rationale to create an expansive waiver process under this mandate.
Definition of Maintenance and Preventive Maintenance
We also request the FAA to apply the term “safety-sensitive maintenance” to foreign repair work in a manner identical to its application to domestic work. This will ensure that repairs deemed safety-sensitive when performed in the U.S. will also be deemed as such when performed overseas, thereby ensuring that all maintenance personnel performing those tasks are subject to the same testing requirements.
Applying this Rulemaking to Non-Certificated Foreign Repair Stations
As indicated in the notice, section 308(d)(2) requires that this rulemaking be applied to those performing safety-sensitive maintenance functions at part 145 certificated foreign repair stations. Thus, foreign repair stations that do not hold FAA certificates are not subject to this rulemaking.
However, the FAA is considering requiring part 121 air carriers that outsource their safety-sensitive maintenance work to personnel operating under 14 CFR section 43.17 to ensure that those workers are subject to drug and alcohol testing regimes comparable to programs currently required under part 120. We agree and think this should also be required of part 135 and 91(k) carriers as well. We also believe that this oversight responsibility should be expanded to include not just Transport Canada Civil Aviation Approved Maintenance Organizations, but all other non-certificated repair stations that repair aircraft certificated under parts 121, 135 and 91(k).
We appreciate the FAA’s efforts to begin implementing section 308(d)(2) and helping to improve the safety of repair work performed at foreign repair stations. We hope the FAA will take our comments into consideration, and we look forward to continuing to work with the agency to strengthen these efforts.