Drug and Alcohol Testing of Certificated Repair Station Employees Located Outside of the United States, 103416-103451 [2024-29837]

Download as PDF 103416 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 120 [Docket No.: FAA–2012–1058; Amdt. No. 120–3] RIN 2120–AK09 List of Abbreviations and Acronyms Frequently Used in This Document Drug and Alcohol Testing of Certificated Repair Station Employees Located Outside of the United States BASA—Bilateral Aviation Safety Agreement ICAO—International Civil Aviation Organization Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. AGENCY: This final rule requires certificated repair stations located outside the territory of the United States (U.S.) whose employees perform safetysensitive 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 SUMMARY: khammond on DSK9W7S144PROD with RULES6 Aerospace Medicine, Drug Abatement Division, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone (202) 267–8442; email: drugabatement@faa.gov. SUPPLEMENTARY INFORMATION: VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 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 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 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 safetysensitive 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. E:\FR\FM\18DER6.SGM 18DER6 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 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 highcost 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. 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. 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] * Program, training development, & maintenance Year 1 2 3 4 5 Training Testing (drug and alcohol) Annual reports FAA oversight costs Total cost (7% PV) Total cost (3% PV) ................................................... ................................................... ................................................... ................................................... ................................................... $0.3 0.3 0.3 0.3 0.3 $7.6 1.0 1.0 1.0 1.0 $0.0 4.5 4.5 4.6 4.6 $2.1 6.8 6.8 6.9 6.9 $0.0 2.1 2.1 2.1 2.1 $9.4 12.8 12.0 11.3 10.6 $9.8 13.8 13.5 13.1 12.8 Total ...................................... 1.6 11.7 18.2 29.4 8.2 56.1 63.0 * These numbers are subject to rounding error. 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 safetysensitive 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. 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. 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 khammond on DSK9W7S144PROD with RULES6 II. Authority for This Rulemaking VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 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 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 to ensure compliance with the recognized programs and notify FAA when the standards or conditions change. 3 Drug and Alcohol Testing of Certificated Repair Station Employees Located Outside of the United States, 88 FR 85137, 85139 (Dec. 7, 2023). 4 Public Law 112–95 (Feb. 14, 2012). E:\FR\FM\18DER6.SGM 18DER6 103418 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 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 safetysensitive under 14 CFR 120.105 and 120.215. 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 3. FAA Extension, Safety, and Security Act of 2016 khammond on DSK9W7S144PROD with RULES6 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 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. 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. 8 Public Law 114–190 (Jul. 15, 2016). VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 the NPRM publication.9 The NPRM was promulgated in accordance with such direction. 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. 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 safetysensitive 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. 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 (§§ 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 9 Section 2112(b) of Public Law 114–190. Law 118–63 (May 16, 2024). 11 88 FR 85137. 10 Public PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 final rule. Specifically, § 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, § 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 § 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 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 E:\FR\FM\18DER6.SGM 18DER6 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 103419 khammond on DSK9W7S144PROD with RULES6 requirements of 14 CFR part 120, subpart E. In turn, current 14 CFR 120.117(c)(2) is redesignated as paragraph (c)(3). 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). 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 § 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 §§ 120.117 and 120.225. These revisions are discussed in that section. 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. 13 This final rule implements the same nonsubstantive revisions described in footnote 11 to the alcohol testing program requirements set forth in 14 CFR 120.225(c)(2). VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 2. Conforming Amendments To Facilitate Drug and Alcohol Procedures Outside the United States (§§ 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. PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 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 E:\FR\FM\18DER6.SGM 18DER6 103420 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations khammond on DSK9W7S144PROD with RULES6 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 § 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 § 120.10, the FAA is expanding the opportunity for 14 These comments are summarized and adjudicated in section V.A of this preamble. VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 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, § 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 § 120.10, the Administrator will issue a waiver. 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 § 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 § 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, § 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. PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 By requiring that a compatible alternative contain the criteria set forth in § 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. Compatibility. The criteria a foreign government’s existing requirements or testing program must contain to obtain a waiver are set forth in § 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 —An education or training program or materials that explain the impact and consequences of misusing alcohol and using drugs while performing safetysensitive 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 § 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 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. 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. E:\FR\FM\18DER6.SGM 18DER6 khammond on DSK9W7S144PROD with RULES6 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 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 preemployment, 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. Postaccident 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 § 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 § 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 VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 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. An education or training program or materials. It is imperative to safety that safetysensitive 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 safetysensitive 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 17 See 19 14 18 14 20 14 PO 00000 section V.E. of this preamble. CFR 120.115(c). 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 § 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. 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 § 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 safetysensitive 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 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\18DER6.SGM CFR 120.223(a). CFR 120.109(e) and 120.217(e). 18DER6 khammond on DSK9W7S144PROD with RULES6 103422 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 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 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 (§ 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 (§ 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 (§ 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 (§ 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 (§ 120.10(c)(1)(iv)). Requests must be submitted to the FAA’s Office of Aerospace Medicine, Drug Abatement Division (§ 120.10(c)(2)) at least 90 days before the waiver needs to take effect (§ 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 (§ 120.10(d)). If a foreign government’s request complies with 21 49 22 14 CFR 40.307(d). CFR 120.111(e) and 120.221(b). VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 § 120.10(c) and demonstrates its requirements meet the key elements described in § 120.10(b), the FAA will recognize the country’s requirements as a compatible alternative, pursuant to § 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 § 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 (§ 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 § 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 (§ 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 § 120.10(e)(1), must maintain the FAA-issued letter on file documenting the waiver in accordance with § 120.10(f)(1). The letter serves as documentation the certificated repair station’s safetysensitive 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 § 120.10(f)(2), the FAA may modify, suspend, or withdraw its waiver PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 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 § 120.10(c)(1)(iv). Conforming Amendments. In the applicability section for part 120, § 120.1, the final rule includes a new exception in § 120.1(d), which clarifies that § 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 safetysensitive maintenance functions on part 121 air carrier aircraft that have obtained a waiver based on recognition pursuant to § 120.10. In the tables in §§ 120.117(a) and (c) and §§ 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 § 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 § 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 E:\FR\FM\18DER6.SGM 18DER6 khammond on DSK9W7S144PROD with RULES6 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 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. 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-ofscope 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 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). VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 (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. The 13 commenters that did not state an overt position on the NPRM included seven foreign repair stations (Airfoil Services, Goodrich THY TEKNİK SERVİS MERKEZİ LTD. ŞTİ, 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. 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 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. 25 Sharp Aviation K Inc provided two comments on the NPRM. PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 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 ‘‘onesize-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 E:\FR\FM\18DER6.SGM 18DER6 khammond on DSK9W7S144PROD with RULES6 103424 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 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 VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 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 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 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 E:\FR\FM\18DER6.SGM 18DER6 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 103425 khammond on DSK9W7S144PROD with RULES6 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 §§ 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 §§ 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 VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 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 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 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 E:\FR\FM\18DER6.SGM 18DER6 khammond on DSK9W7S144PROD with RULES6 103426 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 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 VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 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. Türkiye. A repair station in Türkiye, GOODRICH THY TEKNİK SERVİS MERKEZİ LTD. ŞTİ, 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 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 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 § 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 E:\FR\FM\18DER6.SGM 18DER6 khammond on DSK9W7S144PROD with RULES6 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 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 safetysensitive 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 VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 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 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 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 26 Proposed E:\FR\FM\18DER6.SGM § 120.9(b)(5) and (6). 18DER6 khammond on DSK9W7S144PROD with RULES6 103428 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 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. 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, § 120.9(b) requires the foreign repair station to explain why granting the waiver ‘‘would not adversely affect the VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 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. 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 § 120.109(a), or random drug testing, which is required by § 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 § 120.9(b)(6) to change 27 Proposed PO 00000 § 120.9(b)(3) and (6). Frm 00014 Fmt 4701 Sfmt 4700 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 § 120.9, likening the addition to the existing stand down waiver process, which has regulatory references in both § 40.21 and § 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. E:\FR\FM\18DER6.SGM 18DER6 khammond on DSK9W7S144PROD with RULES6 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 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 § 120.5 from the proposed rule and making this a waiver process under § 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 § 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 § 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 28 See 49 CFR 40.7(b). VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 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. 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 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 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 safetysensitive 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 safetysensitive 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 longestablished 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 29 88 FR at 85138. 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.’’ 30 49 E:\FR\FM\18DER6.SGM 18DER6 103430 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 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. 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 khammond on DSK9W7S144PROD with RULES6 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 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.’’ 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 federallyregulated 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. VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 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 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 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. 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 longstanding cooperative relationship between Europe and the United States, 33 The ANPRM published at 79 FR 14621. The FAA responded to these comments in the NPRM. 88 FR at 85141. E:\FR\FM\18DER6.SGM 18DER6 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 103431 khammond on DSK9W7S144PROD with RULES6 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 § 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, VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 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 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 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. 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 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) E:\FR\FM\18DER6.SGM 18DER6 103432 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 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. khammond on DSK9W7S144PROD with RULES6 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 safetysensitive 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, VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 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 safetysensitive 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 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 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. 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 datadriven 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 35 For E:\FR\FM\18DER6.SGM example, 71 FR 1666. 18DER6 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 103433 khammond on DSK9W7S144PROD with RULES6 that already sends personnel for drug and alcohol testing during their preemployment 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 VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 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 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 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 E:\FR\FM\18DER6.SGM 18DER6 103434 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations khammond on DSK9W7S144PROD with RULES6 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 VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 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. PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 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 noncertificated 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 E:\FR\FM\18DER6.SGM 18DER6 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 103435 khammond on DSK9W7S144PROD with RULES6 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 VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 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 §§ 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. PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 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 E:\FR\FM\18DER6.SGM 18DER6 khammond on DSK9W7S144PROD with RULES6 103436 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 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, SAPlist.com, 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 VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 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 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 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 E:\FR\FM\18DER6.SGM 18DER6 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 103437 khammond on DSK9W7S144PROD with RULES6 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 safetysensitive 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 Unionwide 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 VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 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 EUwide 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 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. PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 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. 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 E:\FR\FM\18DER6.SGM 18DER6 103438 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations khammond on DSK9W7S144PROD with RULES6 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 VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 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 § 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 safetyrelated 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, PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 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. 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 37 FAA Advisory Circular 120–126, Guidelines to Establish, Implement, and Maintain a DOT/FAA Drug and Alcohol Testing Program (Jul. 10, 2024). https://www.faa.gov/regulations_policies/advisory_ circulars/index.cfm/go/document.information/ documentID/1042452 E:\FR\FM\18DER6.SGM 18DER6 khammond on DSK9W7S144PROD with RULES6 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 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 noncertificated 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 VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 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 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 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. 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). E:\FR\FM\18DER6.SGM 18DER6 103440 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 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. 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, § 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? • Part 145 Certificated Foreign Repair Stations outside the U.S. that perform safety-sensitive maintenance functions on part 121 aircraft. • 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. khammond on DSK9W7S144PROD with RULES6 TABLE 2—PRICE LEVEL ADJUSTED COST FOR THE WAIVER BASED ON RECOGNITION [2022 U.S. dollars] Year Industry 1 ........................................................................................................... 2 ........................................................................................................... VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 PO 00000 Frm 00026 Fmt 4701 $24,468 23,661 Sfmt 4700 FAA Total $41,063 39,819 $65,532 63,480 E:\FR\FM\18DER6.SGM 18DER6 Discounted costs (7%) $61,244 55,446 Discounted Costs (3%) $63,623 59,836 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 103441 TABLE 2—PRICE LEVEL ADJUSTED COST FOR THE WAIVER BASED ON RECOGNITION—Continued [2022 U.S. dollars] Year Industry FAA Discounted costs (7%) Total Discounted Costs (3%) 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 development & maintenance Year 1 2 3 4 5 Training Testing (drug and alcohol) Annual reports Total cost (7% PV) Total cost (3% PV) ........................................................................... ........................................................................... ........................................................................... ........................................................................... ........................................................................... $0.4 0.3 0.3 0.3 0.3 $7.6 1.0 1.0 1.0 1.0 $0.0 4.5 4.5 4.6 4.6 $2.1 6.8 6.8 6.9 6.9 $9.4 11.0 10.4 9.7 9.1 $9.8 11.9 11.6 11.3 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. khammond on DSK9W7S144PROD with RULES6 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: • The prevention of potential injuries and fatalities and property losses resulting from accidents attributed to controlled substances use/alcohol misuse or neglect or error on the part of individuals whose judgement or motor skills may be impaired by the presence of alcohol or drugs; and VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 • The potential reduction in absenteeism, lost worker productivity, and other cost to employers, as well as improved general safety in the workplace, by the deterrence of drug use and/or alcohol misuse. However, the FAA lacks sufficient data to estimate a baseline level of safety risk associated with a drug and alcohol testing program at part 145 certificated foreign repair stations that perform safety-sensitive maintenance on part 121 aircraft. Additionally, it is difficult to estimate (and the FAA does not have data on) the impact of the final rule in detecting and deterring drug use and/or alcohol misuse. To estimate safety and productivity benefits that would result from the proposed rule, the FAA would need estimates of the following: • Baseline risks attributable to drug use and/or alcohol misuse; • Effectiveness of the rule; and • Value of the reduction in risk of affected outcomes. The FAA sought comments on this issue and did not receive any data. The FAA also requested that commenters submit data that would allow it to quantify the safety and productivity benefits of extending the proposed rule to foreign aircraft mechanics employed PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 directly by part 121 certificate holders and did not receive any data. Baseline Risks Attributable to Drug Use and/or Alcohol Misuse The FAA does not have data to estimate a baseline level of safety risk associated with safety-sensitive maintenance personnel drug use and/or alcohol misuse. The FAA acknowledges it is aware of no accidents or incidents related to safety-sensitive maintenance personnel using drugs or misusing alcohol. The FAA may use accidents or incidents related to part 121 aircraft that list maintenance as either a cause or factor in the accident report as a proxy to assess the decreased risk of injuries, fatalities, and property losses. However, it is difficult to attribute an accident or incident that occurs months after the maintenance was completed to poor maintenance work related to drug use and/or alcohol misuse. Effectiveness of the Rule The FAA would also need data on the effect of the rule on maintenance workers’ drug use and/or alcohol misuse and the resulting effect on job performance. For example, drug and alcohol programs may serve as a E:\FR\FM\18DER6.SGM 18DER6 103442 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations deterrent, resulting in less drug use and/ or alcohol misuse by employees and higher productivity. However, it would be difficult to analyze the direct causal effect of less drug use and/or alcohol misuse to improved productivity. The FAA would need to retrieve extensive data, such as employees’ health levels, employees’ sleep patterns, changes to operating procedures, levels of education and training, and staffing levels, amongst other factors, to isolate the direct effect of a decrease in drug use or alcohol misuse on productivity levels. Additionally, even if this data were available, the analysis would be extensive and there would be academic questions regarding whether the causal effect was properly measured. Additionally, as mentioned above, there are no accidents or incidents directly related to drug use and/or alcohol misuse to estimate the effect of the rule on injuries, fatalities, or property loss. Therefore, there is a lack of information to establish a baseline. khammond on DSK9W7S144PROD with RULES6 Value of Risk Reduction The safety risks from drug use and/or alcohol misuse are increased risk of injuries and fatalities in the event of an accident or incident. The FAA values the reductions in such risks using the value of statistical life (VSL) for fatalities and fractions of the VSL based on the Maximum Abbreviated Injury Scale (MAIS) for injuries. The Department of Transportation guidance on valuing reductions in fatalities and injuries 39 could be used to monetize and quantify estimates of the potential safety benefits associated with this rulemaking. Alternatives Considered Alternative 1—the Status Quo—The status quo represents a situation in which the FAA would not propose to require part 145 foreign repair stations to test their safety-sensitive maintenance personnel for drugs and alcohol. This alternative is counter to Congressional direction and, therefore, rejected. Alternative 2—The FAA would work through ICAO to create an international standard for drug and alcohol testing of maintenance personnel at repair stations. While the FAA is willing to work with ICAO, 49 U.S.C. 44733(d)(2) requires the FAA to expeditiously proceed with this rulemaking. In other 39 DOT Departmental Guidance on Valuation of a Statistical Life. Economic Analyses. Office of the Secretary of Transportation. https:// www.transportation.gov/office-policy/ transportation-policy/revised-departmentalguidance-on-valuation-of-a-statistical-life-ineconomic-analysis. VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 words, Congress directed the FAA to establish a program acceptable to the Administrator; working through ICAO to create an international standard may not expeditiously meet this intention given the time, resources, and scope of the adoption of an international standard. This alternative may not meet Congressional direction due to the multitude of Member State equities considered in the implementation of an ICAO standard. (6) A description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected. B. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA) of 1980, (5 U.S.C. 601–612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121) and the Small Business Jobs Act of 2010 (Pub. L. 111–240), requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. The term ‘‘small entities’’ comprises small businesses and not-forprofit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The FAA published an Initial Regulatory Flexibility Analysis (IRFA) in the proposed rule to aid the public in commenting on the potential impacts to small entities. The FAA considered the public comments in developing the final rule and this Final Regulatory Flexibility Analysis (FRFA). A FRFA must contain the following: (1) A statement of the need for, and objectives of, the rule; (2) A statement of the significant issues raised by the public comments in response to the IRFA, a statement of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments; (3) The response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA) in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments; (4) A description of and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available; (5) A description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; 1. A Statement of the Need for, and Objectives of, the Rule This rule requires certificated part 145 repair stations located outside the territory of the United States (U.S.) to ensure that employees who perform aircraft maintenance on part 121 air carrier aircraft are subject to a drug and alcohol testing program. A part 145 repair station located outside the territory of the U.S. will cover its employees performing maintenance functions on part 121 air carrier aircraft under its own testing program meeting the requirements of 49 CFR part 40 and 14 CFR part 120. If a part 145 repair station cannot meet one or all requirements in 49 CFR part 40 (e.g., the laws of the country where the repair station is located are inconsistent with the regulations), the part 145 repair station may apply for an exemption using the process described in 49 CFR 40.7. Similarly, if a part 145 repair station cannot meet one or all requirements in 14 CFR part 120, they may apply for a waiver in accordance with waiver authority established in this rule. In addition, foreign governments may request a waiver, on behalf of their repair station operators within their territories, 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, § 120.10 provides that an individual foreign repair station may request its own waiver based on recognition of an existing testing program that meets the key elements identified in the regulation. The FAA’s authority to issue rules on aviation safety is found in Title 49 of the United States Code (49 U.S.C.), specifically 49 U.S.C. 106 and 49 U.S.C. 45102. This final rule is further promulgated under section 308 of the FAA Modernization and Reform Act of 2012 (49 U.S.C. 44733); section 2112 of the FAA Extension, Safety, and Security Act of 2016 (the 2016 Act), which directed publication of a notice of PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\18DER6.SGM 18DER6 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 103443 proposed rulemaking in accordance with 49 U.S.C. 44733; and section 302 of the FAA Reauthorization Act of 2024, which directed the issuance of a final rule carrying out the requirements of section 2112 of the 2016 Act. 2. Significant Issues Raised in Public Comments in Response to the Initial Regulatory Flexibility Analysis certain components of the Drug and Alcohol Testing Program. 3. A Response to SBA Comments The FAA did not receive comments from the Chief Counsel for Advocacy of the SBA in response to the Initial Regulatory Flexibility Analysis provided in the proposed rule. 4. Small Entities To Which the Rule Will Apply The FAA received a comment summarized and acknowledged above concerning impacts to small entities. In response to commenters concerns, in this final rule, the FAA allows 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 recognition of a compatible alternative that contains minimum key elements in lieu of compliance with This rule will impact part 145 repair stations located outside the territory of the U.S. that perform safety-sensitive maintenance functions on part 121 air carrier aircraft. The Regulatory Flexibility Act defines a small business as ‘‘a business entity organized for profit, with a place of business located in the United States, and which operates primarily within the United States or which makes a significant contribution to the U.S. economy through payment of taxes or use of American products, materials or labor.’’ 40 While the regulatory flexibility determination does not require small foreign entities to be considered, foreign repair stations may be using U.S. components or labor, especially if they are working on U.S.manufactured aircraft; therefore, the FAA assumes the RFA applies. The SBA established size standards for various types of economic activities, or industries, under the North American Industry Classification System (NAICS).41 These size standards generally define small businesses based on the number of employees or annual receipts. Table 4 shows the SBA size standard, based on the NAICS code, applicable to repair stations, as it encompasses air transport support activities to include aircraft maintenance and repair services. TABLE 4—SMALL BUSINESS SIZE STANDARDS: AIRCRAFT MAINTENANCE AND REPAIR SERVICES NAICS code Description Size standard 488190 ................................ Other Support Activities for Air Transportation ............................................. $40.0 million. Source: SBA. NAICS = North American Industrial Classification System. SBA = Small Business Administration. Although the FAA was able to identify a size standard for repair stations to be considered small, the FAA lacks financial data to determine if foreign repair stations meet the applicable size standard. Instead, the FAA provides an analysis estimating the total cost to small entities based on available data for domestic repair stations. A 2011 antidrug and alcohol misuse prevention rule for domestic repair stations analyzed the effect on domestic repair stations that were small entities and subcontractors those entities used. That rule based the regulatory flexibility determination analysis on a Transportation Security Administration (TSA) study that used Dun & Bradstreet data to estimate the share of domestic repair stations that would be considered small entities.42 The findings show that 93.28% of domestic repair stations would be classified as small entities. Extrapolating this estimate to the 977 foreign repair stations used in the analysis of this rulemaking results in 912 foreign repair stations that could be considered small entities.43 5. Projected Reporting, Recordkeeping, and Other Compliance Requirements Based on the total nominal cost of the rule to repair stations, $60.9 million, the cost per repair station is $62,331.44 Multiplying the cost per repair station by the estimated 912 repair stations that are small entities results in a total cost to small entities of $56.8 million over five years. Table 5 shows the estimated annualized compliance costs by category. TABLE 5—AVERAGE COST OF COMPLIANCE AND SMALL ENTITIES Number of small entities Category Program and Training Development & Maintenance Cost ..................................................................... Training .................................................................................................................................................... Testing Cost ............................................................................................................................................. Paperwork ................................................................................................................................................ 912 912 912 912 Average annualized cost per repair station $322.52 1,942.83 3,027.79 4,897.96 khammond on DSK9W7S144PROD with RULES6 1. Based on a baseline of existing practices and using a 7% discount rate. 40 13 CFR 121.105(a)(1). The Regulatory Flexibility Act defines a ‘‘small business’’ as having the same meaning as ‘‘small business concern’’ under section 3 of the Small Business Act. 5 U.S.C. 601(3). Section 121.105 of 13 CFR contains the Small Business Administration’s implementing regulations clarifying the definition of ‘‘small business concern.’’ VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 41 Small Business Administration (SBA). 2019. Table of Size Standards. Effective August 12, 2019. https://data.sba.gov/dataset/small-business-sizestandards/resource/d89a5f17-ab8e-4698-9031dfeb34d0a773. 42 Final Rule, Supplemental Regulatory Flexibility Determination, Antidrug and Alcohol PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 Misuse Prevention Programs for Personnel Engaged in Specified Aviation Activities: Supplemental Regulatory Flexibility Determination, 76 FR 12559 (Mar. 8, 2011). 43 The calculation is as follows: 977*.9328 = 911.31. This estimate is rounded up to 912. 44 $60,896,928/977 = $762,330.53. E:\FR\FM\18DER6.SGM 18DER6 103444 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations The 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 a waiver based on recognition of a compatible alternative that contains minimum key elements in lieu of compliance with certain components of the Drug and Alcohol Testing Program. Entities that choose this means of compliance will incur $1,325 in one-time costs. khammond on DSK9W7S144PROD with RULES6 6. Significant Alternatives Considered Alternative 1—the Status Quo—The status quo represents a situation in which the FAA would not require part 145 foreign repair stations to test their safety-sensitive maintenance personnel for drugs and alcohol. This alternative is counter to Congressional direction and, therefore, rejected. Alternative 2—The FAA would work through ICAO to create an international standard for drug and alcohol testing of maintenance personnel at repair stations. While the FAA is willing to work with ICAO, 49 U.S.C. 44733(d)(2) requires the FAA to expeditiously proceed with this rulemaking. In other words, Congress directed the FAA to establish a program acceptable to the Administrator; working through ICAO to create an international standard may not expeditiously meet this intention given the time, resources, and scope of the adoption of an international standard. C. International Trade Impact Assessment The Trade Agreements Act of 1979 (Pub. L. 96–39), as amended by the Uruguay Round Agreements Act (Pub. L. 103–465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the U.S. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the U.S., so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. This rulemaking is congressionally mandated. The FAA assessed the potential effect of this rule and determined that it ensures the safety of the American public. Several commenters including organizations representing the interests of foreign governments, the commercial aviation industry, aviation workers, and foreign VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 repair stations voiced their opposition to an FAA drug and alcohol testing standard for foreign repair stations. As discussed in this preamble, these commenters cited failure to recognize each nation’s sovereignty. They also noted that ICAO would be the more appropriate vehicle to set worldwide standards. As a result, this rulemaking could create an obstacle or retaliation to foreign commerce. D. Unfunded Mandates Assessment Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a ‘‘significant regulatory action.’’ The FAA currently uses an inflation-adjusted value of $183.0 million in lieu of $100 million. This rule does not contain such a mandate; therefore, the requirements of title II of the Act do not apply. E. Paperwork Reduction Act The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. According to the 1995 amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid Office of Management and Budget (OMB) control number. This action contains the following amendments to the existing information collection requirements previously approved under OMB Control Number 2120–0535. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the FAA submitted these information collection amendments to OMB for its review. Summary: Under §§ 120.1, 120.123 and 120.227, this rule extends the drug and alcohol testing regulations beyond the territory of the U.S. certificated part 145 repair stations located outside the territory of the United States to implement a drug and alcohol testing program in accordance with 14 CFR part 120 and 49 CFR part 40 to cover their employees who perform safety-sensitive maintenance functions on part 121 air carrier aircraft. Each repair station would be required to obtain an Antidrug and Alcohol Misuse Prevention Program PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 Operations Specification. In addition, each repair station located outside the territory of the U.S. would be required to provide drug and alcohol testing program management information system (MIS) data. In addition, the final rule establishes a waiver 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 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. Use: The information will be used by the part 145 repair station located outside of the territory of the U.S. to certify implementation and maintenance of a drug and alcohol testing program. The FAA’s Drug Abatement Compliance and Enforcement Inspectors will use this information to identify those foreign repair stations with an active program for inspection scheduling. Inspections are used to verify compliance with the drug and alcohol testing regulations and requirements. In addition, the Drug Abatement Division will use the annual MIS data reported to calculate the annual random drug and alcohol testing rates in the aviation industry. Under the expanded waiver option, i.e., a waiver based on recognition, the information will be used by foreign governments, on behalf of their repair stations within their territories, or foreign repair stations if their regulating country does not avail themselves of this option, to demonstrate the foreign government or the part 145 repair stations located outside of the territory of the U.S. existing requirements promulgated under the laws of the country as a compatible alternative that contains the minimum key elements of 14 CFR part 120. Respondents (including number of): There are currently 977 part 145 certificated repair stations located in 65 countries. Frequency: Part 145 repair stations located outside the territory of the U.S. will provide information for program certification only once; however, these repair stations will also incur annual E:\FR\FM\18DER6.SGM 18DER6 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 103445 program maintenance: e.g., updates to the programs per new guidance; the random pool list; and the overall testing process. The aggregate annual testing data would be provided electronically through the Department of Transportation’s Drug and Alcohol Management Information System. For a waiver based on recognition, foreign governments, or part 145 repair stations located outside the territory of the U.S. if their regulating country does not avail themselves of this option, will provide information for the Administrator’s approval only once. Annual Burden Estimate: 1. BURDEN FOR PROGRAM CERTIFICATION AND ANNUAL PROGRAM MAINTENANCE Documentation Number of repair stations Hours per repair station Hourly wage Total cost Antidrug and Alcohol Misuse Prevention Program Operations Specification ............................................................................................................ 977 16.2 45 $29.43 46 $465,800 2. BURDEN FOR ANNUAL TEST DATA Total records 47 khammond on DSK9W7S144PROD with RULES6 Documentation Time per record (hours) Hourly wage Total cost Average yearly cost 48 Training records .......................................................................................................................... Records related to the alcohol and drug collection process, test results, refusal to test, employee dispute records, SAP reports, follow-up tests ............................................................. 544,176 0.25 49 $33.57 $2,756,696 $551,339 262,384 5.0 34.47 26,584,052 5,316,810 Total ............................................................................................................................................ 806,560 N/A N/A 29,340,748 5,868,150 To calculate the number of drug and alcohol training records, the FAA took the 2021 data showing 147,194 mechanics and 29,439 supervisors and accounted for a 0.49 percent growth rate over five years. Accounting for these rates results in an initial first year total of 148,637 mechanics and 29,728 supervisors. This is a total of 178,365 employees. In the first year all mechanics and supervisors will take anti-drug and alcohol training. These are two separate trainings. This requirement will result in 178,365 records for anti-drug training and 178,365 for alcohol training. In addition, supervisors will have to take an additional supervisor reasonable cause/ reasonable suspicion determinations training for drugs and alcohol. This requirement will add another 59,456 records since they are two separate trainings as well.50 Therefore, in the first year, there will be a total of 416,186 records.51 For year two and beyond, for drug records, the total records reflect the increase in new mechanics and supervisors which will be required to take the drug training. Using the growth rate this results in 727 mechanics and 145 supervisors for a total of 872 records. The 145 new supervisors will also have to take the reasonable cause/ reasonable suspicion determinations for drugs training. In addition, there is recurrent reasonable cause/reasonable suspicion determinations for drugs training that all supervisors will have to take every 12 to 18 months. In year two, this results in 29,728 supervisors taking the recurring trainings. Thus, the records for drug training in year two is 30,745.52 In addition, new mechanics and supervisors will be required to take alcohol training and supervisors will have to take the reasonable cause/ reasonable suspicion determinations for alcohol training. This adds another 1,017 records. There is no recurrent alcohol training for supervisors. Therefore, in year two the total records are 31,762.53 The same calculation for year two is repeated for years three through five. There are 31,919 records in year three, 32,075 in year four, and 32,234 in year five. This results in a total of 544,176 total training records over the five years.54 To calculate the number of records related to alcohol and drug collection, the FAA sums the number of preemployment drug tests, random drug and alcohol tests, and post-accident, reasonable cause, return to duty, and follow-up drug and alcohol tests per year beginning in year two. First, for drug testing, every new employee performing maintenance will be required to take a pre-employment drug test but not an alcohol test. Second, the FAA estimates 25 percent of current employees performing maintenance will be randomly drug tested per year. Third, there will be post-accident, reasonable cause, return to duty, or follow-up testing. The FAA estimates 1.70 percent of employees tested in a given year will be tested again under this category. The total drug tests over the five years is 187,202.55 For alcohol testing, no preemployment alcohol testing is required. The other two categories of alcohol testing will be the same as for drug testing. However, the FAA estimates random drug testing will occur at a rate of 10 percent of current employees and 4.10 percent for post-accident, 45 Based on the previous PRA, the FAA assumes 16 hours in the first year to establish the testing program and one hour to register with the FAA’s Drug Abatement Division. Therefore, 17 hours are required for the first year. For each year after, the recurring time to update and maintain the testing list will be 16 hours. The average over five years results in the 16.2 hours per year. 46 Office and Administrative Support Workers (SOC 43–9199), May 2022; Mean Hourly Wage $20.75 https://www.bls.gov/oes/2022/May/ oes439199.htm. The total wage includes BLS compensation data. For 2020, BLS has wages at 70.5 percent total compensation while benefits are 29.5 percent. Employer Costs for Employee Compensation—December 2022. https:// www.bls.gov/news.release/archives/ecec_ 03172023.htm. 47 Estimated number of records from 2018 to 2022. 48 Average yearly cost is calculated by dividing total cost by five years. 49 Information and Records Clerks (SOC 43– 4000), May 2022; Mean Hourly Wage $23.67 https:// www.bls.gov/oes/2022/may/naics3_481000.htm#434000. The total wage includes BLS compensation data. For 2022, BLS has wages at 70.5 percent total compensation while benefits are 29.5 percent. Employer Costs for Employee Compensation— December 2022. https://www.bls.gov/news.release/ archives/ecec_03172023.htm. 50 29,728*2 = 59,4560.0 51 178,365 + 178,365 + 59,456 = 416,186. 52 872 + 145 + 29.728 = 30,745. 53 30,745 + 1,017 = 31,762 54 416,186 + 31,762 + 31,919 + 32,075 + 32,234 = 544,176 55 This is broken down by category as 3,516 preemployment drug tests, 180,558 random drug tests, 3,128 post-accident, reasonable cause, return to duty, and follow-up tests. VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\18DER6.SGM 18DER6 103446 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations reasonable cause, return to duty, and follow-up tests. The total alcohol tests over the five years is 75,182.56 Taking the sum of drug and alcohol tests results in 262,384 records related to alcohol and drug collection. WAIVER BASED ON RECOGNITION Documentation Total submissions 57 Time per submission 58 Hourly wage 59 Total cost Request for a Waiver Based on Recognition .................................................... 65 20 $66.25 $86,124 The FAA assumes that every foreign government that regulates part 145 repair stations located outside the territory of the U.S. will submit a request for a waiver based on recognition. There are 65 countries that have part 145 repair stations within their territories so there will be 65 submissions. Each submission will require 20 hours at an hourly wage of $66.25. Thus, the total cost for all 65 of the submissions is $86,124. This will be one time cost. F. International Compatibility In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to ICAO Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these proposed regulations. G. Environmental Analysis FAA Order 1050.1F identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act (NEPA) in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 5–6.6f for regulations and involves no extraordinary circumstances. VII. Executive Order Determinations khammond on DSK9W7S144PROD with RULES6 A. Executive Order 13132, Federalism The FAA has analyzed this final rule under the principles and criteria of Executive Order (E.O.) 13132, Federalism. The FAA has determined 56 This is broken down by category as 72,223 random drug tests and 2,959 post-accident, reasonable cause, return to duty, and follow-up tests. 57 Each foreign government that regulates part 145 repair stations will provide one submission. 58 The total hours per submission is 20 hours and is disaggregated between a government program analyst that will do 15 hours of the work and a government manager that will do 5 hours of work. VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, will not have federalism implications. B. Executive Order 13211, Regulations That Significantly Affect Energy Supply, Distribution, or Use The FAA analyzed this final rule under E.O. 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The FAA has determined that it is not a ‘‘significant energy action’’ under the executive order and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. C. Executive Order 13609, Promoting International Regulatory Cooperation Executive Order 13609, Promoting International Regulatory Cooperation, promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policy and agency responsibilities of Executive Order 13609 and has determined that this action could create differences in international regulatory requirements. The FAA acknowledges that a foreign government may ask the FAA to revisit certain international agreements, as discussed in section IV.I, to accommodate this action. 59 The hourly wage is the weighted average between the wages of the government program analyst and the government manager. Since the government program analyst will do 15 hours of the total 20 hours of work their wage, $59.93, is multiplied by 0.75 (15/20 = 0.75). The government manager does the other 5 hours of work (5/20 = 0.25) and thus their wage, $86.41, is multiplied by 0.25. (($59.93*0.75) + ($86.41*0.25) = $66.25). FAA Technical Pay Band, K Band with Washington DC locality; effective Jan. 2022, minimum salary $131,917. The total loaded salary PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 VIII. Additional Information A. Electronic Access and Filing A copy of the NPRM, all comments received, this final rule, and all background material may be viewed online at https://www.regulations.gov using the docket number listed above. A copy of this final rule will be placed in the docket. Electronic retrieval help and guidelines are available on the website. It is available 24 hours each day, 365 days each year. An electronic copy of this document may also be downloaded from the Office of the Federal Register’s website at https:// www.federalregister.gov and the Government Publishing Office’s website at https://www.govinfo.gov. A copy may also be found on the FAA’s Regulations and Policies website at https:// www.faa.gov/regulations_policies. Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM–1, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267–9677. Commenters must identify the docket or notice number of this rulemaking. All documents the FAA considered in developing this final rule, including economic analyses and technical reports, may be accessed in the electronic docket for this rulemaking. B. Small Business Regulatory Enforcement Fairness Act The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires the FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document may contact its local FAA official or the person listed under the FOR FURTHER INFORMATION CONTACT of $179,737 is divided by 2,080 hours to get the $86.41 hourly wage. https://web.archive.org/web/ 20220402230925/https://www.faa.gov/sites/faa.gov/ files/2022-02/core_salary_with_conversion.xlsx. FAA Technical Pay Band, I Band with Washington DC locality; effective Jan. 2022, minimum salary $90,877. The total loaded salary of $123,820 is divided by 2,080 hours to get the $59.93 hourly wage. https://web.archive.org/web/ 20220402230925/https://www.faa.gov/sites/faa.gov/ files/2022-02/core_salary_with_conversion.xlsx. E:\FR\FM\18DER6.SGM 18DER6 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 103447 heading at the beginning of the preamble. To find out more about SBREFA on the internet, visit https:// www.faa.gov/regulations_policies/ rulemaking/sbre_act/. 3. Effective December 20, 2027, amend § 120.1 by revising paragraph (d) to read as follows: ■ § 120.1 List of Subjects in 14 CFR Part 120 Alcoholism, Air carriers, Alcohol abuse, Alcohol testing, Aviation safety, Drug abuse, Drug testing, Operators, Reporting and recordkeeping requirements, Safety, Safety-sensitive, Transportation. The Amendment In consideration of the foregoing, the Federal Aviation Administration amends chapter I of title 14, Code of Federal Regulations as follows: PART 120—DRUG AND ALCOHOL TESTING PROGRAM 1. The authority citation for part 120 is revised to read as follows: Authority: 49 U.S.C. 106(f), 40101–40103, 40113, 40120, 41706, 41721, 44106, 44701, 44702, 44703, 44709, 44710, 44711, 44733, 45101–45105, 46105, 46306. 2. Revise and republish § 120.1 to read as follows: ■ khammond on DSK9W7S144PROD with RULES6 § 120.1 Applicability. This part applies to the following persons: (a) All air carriers and operators certificated under part 119 of this chapter authorized to conduct operations under part 121 or part 135 of this chapter, all air traffic control facilities not operated by the FAA or by or under contract to the U.S. military; and all operators as defined in 14 CFR 91.147. (b) All individuals who perform, either directly or by contract, a safetysensitive function listed in subpart E or subpart F of this part. (c) All part 145 certificate holders located in the territory of the United States who perform safety-sensitive functions and elect to implement a drug and alcohol testing program under this part. (d) Beginning December 20, 2027, all part 145 certificate holders outside the territory of the United States who perform safety-sensitive maintenance functions on part 121 air carrier aircraft, except that section 120.5 and subparts E and F of this part 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 recognition pursuant to § 120.10. (e) All contractors who elect to implement a drug and alcohol testing program under this part. VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 * * * * (d) All part 145 certificate holders outside the territory of the United States who perform safety-sensitive maintenance functions on part 121 air carrier aircraft, except that section 120.5 and subparts E and F of this part 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 recognition pursuant to § 120.10. ■ 4. Revise § 120.5 to read as follows: § 120.5 ■ Applicability. * Procedures. Each employer having a drug and alcohol testing program under this part must ensure that all drug and alcohol testing conducted pursuant to this part complies with the procedures set forth in 49 CFR part 40 and any exemptions issued to that employer by the Department of Transportation in accordance with 49 CFR 40.7. ■ 5. Add § 120.9 to read as follows: § 120.9 Waivers for Part 145 certificate holders outside the territory of the United States. (a) A part 145 certificate holder whose employees perform safety-sensitive maintenance functions on part 121 air carrier aircraft outside the territory of the United States may request a waiver from the Administrator from any requirements under 14 CFR part 120, subpart E or F, if specific requirements of subpart E or F are inconsistent with the laws of the country where the repair station is located. (b) Each waiver request must include, at a minimum, the following elements: (1) Information about the organization, including the name and mailing address and, if desired, other contact information such as a fax number, telephone number, or email address; (2) The specific section or sections of this part from which the organization seeks a waiver; (3) The reasons why granting the waiver would not adversely affect the prevention of accidents and injuries resulting from the use of prohibited drugs and/or the misuse of alcohol by employees; (4) A copy of the law that is inconsistent with the provision(s) of this part from which a waiver is sought; (5) An explanation of how the law is inconsistent with the provision(s) of this part from which a waiver is sought; and PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 (6) A description of the alternative means that will be used to achieve the objectives of the provision that is the subject of the waiver or, if applicable, a justification of why it would be impossible to achieve the objectives of the provision in any way. (c) Each request for a waiver must be submitted to the Federal Aviation Administration, Office of Aerospace Medicine, in a form and manner acceptable to the Administrator. (d) Each request for a waiver must be submitted at least 90 days before the organization needs it to take effect. ■ 6. Add § 120.10 to read as follows: § 120.10 Waiver based on recognition of a foreign government’s existing requirements or an existing testing program of a Part 145 certificate holder outside the territory of the United States. (a) General. A foreign government on behalf of its part 145 certificate holders, or a part 145 certificate holder whose employees perform safety-sensitive maintenance functions on part 121 air carrier aircraft outside the territory of the United States (herein referred to as a foreign repair station), may request a waiver from the Administrator from the requirements of this part in recognition of the foreign government’s existing requirements, or the foreign repair station’s existing testing program developed consistent with the laws of its home country, as a compatible alternative to the requirements of this part. (b) Compatibility. A request for recognition must demonstrate that the foreign government’s existing requirements, or the foreign repair station’s existing testing program, contain the following key elements of this part: (1) 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. (2) An education or training program or materials that explain the impact and consequences of misusing alcohol and using drugs while performing safetysensitive maintenance. (3) 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. (c) Requests for recognition of a foreign government’s existing requirements or a foreign repair station’s existing testing program. (1) Each request for recognition of a foreign E:\FR\FM\18DER6.SGM 18DER6 103448 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations government’s existing requirements or a foreign repair station’s existing testing program must contain: (i) The name, title, address, email address, and telephone number of the primary person to be contacted regarding review of the request; (ii) Documentation of the foreign government’s existing requirements or the foreign repair station’s existing testing program demonstrating that the requirements or program contain the key elements of this part described in paragraph (b) of this section, including, if appropriate, copies of applicable laws, regulations, and other requirements carrying the force of law; and (iii) Appropriate data, records, or supporting explanation for the Administrator to consider in determining whether the foreign government’s existing requirements or the foreign repair station’s existing testing program contain the key elements of this part; and (iv) A statement that the requestor intends to notify the Administrator within 30 days of any change to the key elements described in paragraph (b) of this section that form the basis of the Administrator’s recognition pursuant to paragraph (d)(2) of this section and provide a description of those changes in such notification. (2) Each request for recognition must be submitted to the Federal Aviation Administration, Office of Aerospace Medicine, in a form and manner acceptable to the Administrator. (3) Each request for recognition must be submitted at least 90 days before the organization needs it to take effect. (d) Disposition. (1) The Administrator will evaluate a request for recognition and may request additional information, documentation, or explanation, as needed, to supplement the request. (2) A foreign government’s existing requirements or a foreign repair station’s existing testing program will be recognized as a compatible alternative to the requirements of this part if the Administrator determines that: (i) The request complies with the requirements of paragraph (c) of this section; and (ii) The foreign government’s existing requirements, or the foreign repair station’s existing testing program, contain the key elements of this part as described in paragraph (b) of this section. (e) Effect and validity. (1) Recognition by the Administrator issued to a foreign government pursuant to paragraph (d)(2) of this section will apply to all foreign repair stations within the territory of the foreign government and subject to the recognized compatible alternative to the requirements of this part. (2) Recognition by the Administrator will remain valid so long as the foreign government’s existing requirements, or the foreign repair station’s existing If you are . . . testing program, retains the key elements of this part that formed the basis of the Administrator’s recognition pursuant to paragraph (d)(2) of this section. (f) Compliance. (1) Each foreign repair station subject to existing requirements or an existing testing program recognized as a compatible alternative to the requirements of this part pursuant to paragraph (d)(2) of this section must maintain an FAA-issued letter on file documenting the recognition. (2) The FAA may modify, suspend, or withdraw recognition by the Administrator when: (i) A recognition is no longer valid; (ii) A foreign repair station fails to implement a testing program consistent with a recognition issued pursuant to paragraph (d)(2) of this section; or (iii) A foreign government or foreign repair station has not provided the notification described in paragraph (c)(1)(iv) of this section. ■ 7. Amend § 120.117 by: ■ a. Revising paragraph (a)(5); ■ b. Redesignating paragraph (a)(6) as paragraph (a)(7); ■ c. Adding new paragraph (a)(6); and ■ d. Revising paragraph (c). The revisions and additions read as follows: § 120.117 program. Implementing a drug testing (a) * * * You must . . . * * * * * * * (5) A part 145 certificate holder located inside the territory of the United Obtain an Antidrug and Alcohol Misuse Prevention Program OperStates who has your own drug testing program. ations Specification by contacting your Principal Maintenance Inspector or register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM–800), 800 Independence Avenue SW, Washington, DC 20591, if you opt to conduct your own drug testing program. (6) A part 145 certificate holder located outside the territory of the Obtain an Antidrug and Alcohol Misuse Prevention Program OperUnited States whose employees perform safety-sensitive mainteations Specification by contacting your Principal Maintenance Innance functions on part 121 air carrier aircraft, unless you have respector. ceived recognition pursuant to § 120.10. * * * * * * * (c) If you are an individual or company that intends to provide safetysensitive services by contract to a part 119 certificate holder with authority to khammond on DSK9W7S144PROD with RULES6 * * * operate under part 121 and/or part 135 of this chapter, an operation as defined in § 91.147 of this chapter, or an air traffic control facility not operated by * * the FAA or by or under contract to the U.S. military, use the following chart to determine what you must do if you opt to have your own drug testing program. If you are . . . You must . . . (1) A part 145 certificate holder located inside the territory of the United States and opt to conduct your own program under this part. (i) Have an Antidrug and Alcohol Misuse Prevention Program Operations Specification or register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM–800), 800 Independence Avenue SW, Washington, DC 20591, VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\18DER6.SGM 18DER6 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 103449 If you are . . . You must . . . (ii) Implement an FAA drug testing program no later than the date you start performing safety-sensitive functions for a part 119 certificate holder with authority to operate under part 121 or 135, or operator as defined in § 91.147 of this chapter, and (iii) Meet the requirements of this subpart as if you were an employer. (i) Obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification by contacting your Principal Maintenance Inspector. (ii) Implement a drug testing program acceptable to the Administrator no later than December 20, 2027, and (iii) Meet the requirements of this subpart as if you were an employer in accordance with any applicable waivers or exemptions. (i) Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM–800), 800 Independence Avenue SW, Washington, DC 20591, (ii) Implement an FAA drug testing program no later than the date you start performing safety-sensitive functions for a part 119 certificate holder with authority to operate under part 121 or 135, or operator as defined in § 91.147 of this chapter, or an air traffic control facility not operated by the FAA or by or under contract to the U.S. Military, and (iii) Meet the requirements of this subpart as if you were an employer. (2) A part 145 certificate holder located outside the territory of the United States whose employees perform maintenance functions on part 121 air carrier aircraft, unless you have received recognition pursuant to § 120.10. (3) A contractor who opts to implement a testing program under this part. * * * * * 8. Effective December 20, 2027, amend § 120.117 by revising paragraph (c)(2) to read as follows: ■ If you are . . . § 120.117 program. * Implementing a drug testing * * (c) * * * * * You must . . . * * * * * * * (2) A part 145 certificate holder located outside the territory of the (i) Obtain an Antidrug and Alcohol Misuse Prevention Program OperUnited States whose employees perform maintenance functions on ations Specification by contacting your Principal Maintenance Inpart 121 air carrier aircraft, unless you have received recognition purspector. suant to § 120.10. (ii) Implement a drug testing program acceptable to the Administrator, and (iii) Meet the requirements of this subpart as if you were an employer in accordance with any applicable waivers or exemptions. * * * 9. Amend § 120.123 by revising paragraphs (a) introductory text, (a)(1), and (b) to read as follows: ■ § 120.123 Drug testing outside the territory of the United States. (a) Except for those testing processes applicable to persons testing pursuant to § 120.1(d), no part of the testing process (including specimen collection, laboratory processing, and MRO actions) shall be conducted outside the territory of the United States. (1) Except for those persons testing pursuant to § 120.1(d), each employee * who is assigned to perform safetysensitive functions solely outside the territory of the United States shall be removed from the random testing pool upon the inception of such assignment. * * * * * (b) Except for those persons testing pursuant to § 120.1(d), the provisions of this subpart shall not apply to any individual who performs a function listed in § 120.105 by contract for an employer outside the territory of the United States. ■ 10. Amend § 120.225 by: If you are . . . khammond on DSK9W7S144PROD with RULES6 * * * a. Revising paragraph (a)(5); b. Redesignating paragraph (a)(6) as paragraph (a)(7); ■ c. Adding new paragraph (a)(6); and ■ d. Revising paragraphs (c), (d) introductory text and (d)(1). The revisions and addition read as follows: ■ ■ § 120.225 How to implement an alcohol testing program. (a) * * * You must . . . * * * * * * * (5) A part 145 certificate holder located inside the territory of the United Obtain an Antidrug and Alcohol Misuse Prevention Program OperStates who has your own alcohol testing program. ations Specification by contacting your Principal Maintenance Inspector or register with the FAA Office of Aerospace Medicine, Drug Abatement Division (AAM–800), 800 Independence Avenue SW, Washington, DC 20591, if you opt to conduct your own alcohol testing program. VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 E:\FR\FM\18DER6.SGM 18DER6 103450 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations If you are . . . You must . . . (6) A part 145 certificate holder located outside the territory of the United States who performs safety-sensitive maintenance functions on part 121 air carrier aircraft, unless you have received recognition pursuant to § 120.10. Obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification by contacting your Principal Maintenance Inspector. * * * * * * * * (c) If you are an individual or company that intends to provide safetysensitive services by contract to a part * 119 certificate holder with authority to operate under part 121 and/or part 135 of this chapter, or an operator as defined in § 91.147 of this chapter, use the * * following chart to determine what you must do if you opt to have your own drug testing program. If you are . . . You must . . . (1) A part 145 certificate holder located inside the territory of the United States and opt to conduct your own program under this part. (i) Have an Antidrug and Alcohol Misuse Prevention Program Operations Specifications or register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM–800), 800 Independence Avenue SW, Washington, DC 20591, (ii) Implement an FAA alcohol testing program no later than the date you start performing safety-sensitive functions for a part 119 certificate holder with the authority to operate under parts 121 and/or 135, or operator as defined in § 91.147 of this chapter, and (iii) Meet the requirements of this subpart as if you were an employer. (i) Obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification by contacting your Principal Maintenance Inspector. (ii) Implement an alcohol testing program acceptable to the Administrator no later than December 20, 2027, and (iii) Meet the requirements of this subpart as if you were an employer in accordance with any applicable waivers or exemptions. (i) Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM–800), 800 Independence Avenue SW, Washington, DC 20591, (ii) Implement an FAA alcohol testing program no later than the date you start performing safety-sensitive functions for a part 119 certificate holder with authority to operate under parts 121 and/or 135, or operator as defined in § 91.147 of this chapter, and (iii) Meet the requirements of this subpart as if you were an employer. (2) A part 145 certificate holder located outside of the territory of the United States who performs maintenance functions on part 121 air carrier aircraft, unless you have received recognition pursuant to § 120.10. (3) A contractor ......................................................................................... (d) To obtain an antidrug and alcohol misuse prevention program operations specification: (1) You must contact your FAA Principal Operations Inspector or Principal Maintenance Inspector. Provide him/her with the following information: * * * * * ■ 11. Effective December 20, 2027, amend § 120.225 by revising paragraph (c)(2) to read as follows: If you are . . . * * * 12. Amend § 120.227 by revising paragraphs (a) introductory text, (a)(1), and (b) to read as follows: ■ VerDate Sep<11>2014 § 120.225 How to implement an alcohol testing program. * * * (c) * * * * * You must . . . * * * (2) A part 145 certificate holder located outside of the territory of the United States who performs maintenance functions on part 121 air carrier aircraft, unless you have received recognition pursuant to § 120.10. khammond on DSK9W7S144PROD with RULES6 * 19:21 Dec 17, 2024 Jkt 265001 * * * * (i) Obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification by contacting your Principal Maintenance Inspector. (ii) Implement an alcohol testing program acceptable to the Administrator, and (iii) Meet the requirements of this subpart as if you were an employer in accordance with any applicable waivers or exemptions. * § 120.227 U.S. * Employees located outside the (a) Except for those persons testing pursuant to § 120.1(d), no covered employee shall be tested for alcohol PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 * * misuse while located outside the territory of the United States. (1) Except for those persons testing pursuant to § 120.1(d), each covered employee who is assigned to perform safety-sensitive functions solely outside E:\FR\FM\18DER6.SGM 18DER6 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 103451 the territory of the United States shall be removed from the random testing pool upon the inception of such assignment. * * * * * (b) Except for those persons testing pursuant to § 120.1(d), the provisions of this subpart shall not apply to any person who performs a safety-sensitive function by contract for an employer outside the territory of the United States. Issued under authority provided by 49 U.S.C. 106(f), 45102, 44731(d), in Washington, DC. Michael Gordon Whitaker, Administrator. [FR Doc. 2024–29837 Filed 12–16–24; 8:45 am] khammond on DSK9W7S144PROD with RULES6 BILLING CODE 4910–13–P VerDate Sep<11>2014 19:21 Dec 17, 2024 Jkt 265001 PO 00000 Frm 00037 Fmt 4701 Sfmt 9990 E:\FR\FM\18DER6.SGM 18DER6

Agencies

[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 [www.gpo.gov]
[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: [email protected].

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
                                                      --------------------------------------------------------------------------------------------------
    Total............................................               1.6       11.7                  18.2      29.4         8.2         56.1         63.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
* 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\
---------------------------------------------------------------------------

    \3\ Drug and Alcohol Testing of Certificated Repair Station 
Employees Located Outside of the United States, 88 FR 85137, 85139 
(Dec. 7, 2023).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \8\ Public Law 114-190 (Jul. 15, 2016).
    \9\ Section 2112(b) of Public Law 114-190.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \10\ Public Law 118-63 (May 16, 2024).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \11\ 88 FR 85137.
---------------------------------------------------------------------------

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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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, SAPlist.com, 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). https://www.faa.gov/regulations_policies/advisory_circulars/index.cfm/go/document.information/documentID/1042452
---------------------------------------------------------------------------

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?
     Part 145 Certificated Foreign Repair Stations outside the 
U.S. that perform safety-sensitive maintenance functions on part 121 
aircraft.
     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
                                              ------------------------------------------------------------------

[[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:
     The prevention of potential injuries and fatalities and 
property losses resulting from accidents attributed to controlled 
substances use/alcohol misuse or neglect or error on the part of 
individuals whose judgement or motor skills may be impaired by the 
presence of alcohol or drugs; and
     The potential reduction in absenteeism, lost worker 
productivity, and other cost to employers, as well as improved general 
safety in the workplace, by the deterrence of drug use and/or alcohol 
misuse.
    However, the FAA lacks sufficient data to estimate a baseline level 
of safety risk associated with a drug and alcohol testing program at 
part 145 certificated foreign repair stations that perform safety-
sensitive maintenance on part 121 aircraft. Additionally, it is 
difficult to estimate (and the FAA does not have data on) the impact of 
the final rule in detecting and deterring drug use and/or alcohol 
misuse. To estimate safety and productivity benefits that would result 
from the proposed rule, the FAA would need estimates of the following:
     Baseline risks attributable to drug use and/or alcohol 
misuse;
     Effectiveness of the rule; and
     Value of the reduction in risk of affected outcomes.
    The FAA sought comments on this issue and did not receive any data. 
The FAA also requested that commenters submit data that would allow it 
to quantify the safety and productivity benefits of extending the 
proposed rule to foreign aircraft mechanics employed directly by part 
121 certificate holders and did not receive any data.
Baseline Risks Attributable to Drug Use and/or Alcohol Misuse
    The FAA does not have data to estimate a baseline level of safety 
risk associated with safety-sensitive maintenance personnel drug use 
and/or alcohol misuse. The FAA acknowledges it is aware of no accidents 
or incidents related to safety-sensitive maintenance personnel using 
drugs or misusing alcohol. The FAA may use accidents or incidents 
related to part 121 aircraft that list maintenance as either a cause or 
factor in the accident report as a proxy to assess the decreased risk 
of injuries, fatalities, and property losses. However, it is difficult 
to attribute an accident or incident that occurs months after the 
maintenance was completed to poor maintenance work related to drug use 
and/or alcohol misuse.
Effectiveness of the Rule
    The FAA would also need data on the effect of the rule on 
maintenance workers' drug use and/or alcohol misuse and the resulting 
effect on job performance. For example, drug and alcohol programs may 
serve as a

[[Page 103442]]

deterrent, resulting in less drug use and/or alcohol misuse by 
employees and higher productivity. However, it would be difficult to 
analyze the direct causal effect of less drug use and/or alcohol misuse 
to improved productivity. The FAA would need to retrieve extensive 
data, such as employees' health levels, employees' sleep patterns, 
changes to operating procedures, levels of education and training, and 
staffing levels, amongst other factors, to isolate the direct effect of 
a decrease in drug use or alcohol misuse on productivity levels. 
Additionally, even if this data were available, the analysis would be 
extensive and there would be academic questions regarding whether the 
causal effect was properly measured.
    Additionally, as mentioned above, there are no accidents or 
incidents directly related to drug use and/or alcohol misuse to 
estimate the effect of the rule on injuries, fatalities, or property 
loss. Therefore, there is a lack of information to establish a 
baseline.
Value of Risk Reduction
    The safety risks from drug use and/or alcohol misuse are increased 
risk of injuries and fatalities in the event of an accident or 
incident. The FAA values the reductions in such risks using the value 
of statistical life (VSL) for fatalities and fractions of the VSL based 
on the Maximum Abbreviated Injury Scale (MAIS) for injuries. The 
Department of Transportation guidance on valuing reductions in 
fatalities and injuries \39\ could be used to monetize and quantify 
estimates of the potential safety benefits associated with this 
rulemaking.
---------------------------------------------------------------------------

    \39\ DOT Departmental Guidance on Valuation of a Statistical 
Life. Economic Analyses. Office of the Secretary of Transportation. 
https://www.transportation.gov/office-policy/transportation-policy/revised-departmental-guidance-on-valuation-of-a-statistical-life-in-economic-analysis.
---------------------------------------------------------------------------

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

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) of 1980, (5 U.S.C. 601-612), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (Pub. L. 104-121) and the Small Business Jobs Act of 2010 (Pub. L. 
111-240), requires Federal agencies to consider the effects of the 
regulatory action on small business and other small entities and to 
minimize any significant economic impact. The term ``small entities'' 
comprises small businesses and not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000.
    The FAA published an Initial Regulatory Flexibility Analysis (IRFA) 
in the proposed rule to aid the public in commenting on the potential 
impacts to small entities. The FAA considered the public comments in 
developing the final rule and this Final Regulatory Flexibility 
Analysis (FRFA). A FRFA must contain the following:
    (1) A statement of the need for, and objectives of, the rule;
    (2) A statement of the significant issues raised by the public 
comments in response to the IRFA, a statement of the assessment of the 
agency of such issues, and a statement of any changes made in the 
proposed rule as a result of such comments;
    (3) The response of the agency to any comments filed by the Chief 
Counsel for Advocacy of the Small Business Administration (SBA) in 
response to the proposed rule, and a detailed statement of any change 
made to the proposed rule in the final rule as a result of the 
comments;
    (4) A description of and an estimate of the number of small 
entities to which the rule will apply or an explanation of why no such 
estimate is available;
    (5) A description of the projected reporting, recordkeeping, and 
other compliance requirements of the proposed rule, including an 
estimate of the classes of small entities which will be subject to the 
requirement and the type of professional skills necessary for 
preparation of the report or record;
    (6) A description of the steps the agency has taken to minimize the 
significant economic impact on small entities consistent with the 
stated objectives of applicable statutes, including a statement of the 
factual, policy, and legal reasons for selecting the alternative 
adopted in the final rule and why each of the other significant 
alternatives to the rule considered by the agency which affect the 
impact on small entities was rejected.
1. A Statement of the Need for, and Objectives of, the Rule
    This rule requires certificated part 145 repair stations located 
outside the territory of the United States (U.S.) to ensure that 
employees who perform aircraft maintenance on part 121 air carrier 
aircraft are subject to a drug and alcohol testing program. A part 145 
repair station located outside the territory of the U.S. will cover its 
employees performing maintenance functions on part 121 air carrier 
aircraft under its own testing program meeting the requirements of 49 
CFR part 40 and 14 CFR part 120. If a part 145 repair station cannot 
meet one or all requirements in 49 CFR part 40 (e.g., the laws of the 
country where the repair station is located are inconsistent with the 
regulations), the part 145 repair station may apply for an exemption 
using the process described in 49 CFR 40.7. Similarly, if a part 145 
repair station cannot meet one or all requirements in 14 CFR part 120, 
they may apply for a waiver in accordance with waiver authority 
established in this rule.
    In addition, foreign governments may request a waiver, on behalf of 
their repair station operators within their territories, 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 provides that an 
individual foreign repair station may request its own waiver based on 
recognition of an existing testing program that meets the key elements 
identified in the regulation.
    The FAA's authority to issue rules on aviation safety is found in 
Title 49 of the United States Code (49 U.S.C.), specifically 49 U.S.C. 
106 and 49 U.S.C. 45102. This final rule is further promulgated under 
section 308 of the FAA Modernization and Reform Act of 2012 (49 U.S.C. 
44733); section 2112 of the FAA Extension, Safety, and Security Act of 
2016 (the 2016 Act), which directed publication of a notice of

[[Page 103443]]

proposed rulemaking in accordance with 49 U.S.C. 44733; and section 302 
of the FAA Reauthorization Act of 2024, which directed the issuance of 
a final rule carrying out the requirements of section 2112 of the 2016 
Act.
2. Significant Issues Raised in Public Comments in Response to the 
Initial Regulatory Flexibility Analysis
    The FAA received a comment summarized and acknowledged above 
concerning impacts to small entities. In response to commenters 
concerns, in this final rule, the FAA allows 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 recognition of a compatible alternative that contains 
minimum key elements in lieu of compliance with certain components of 
the Drug and Alcohol Testing Program.
3. A Response to SBA Comments
    The FAA did not receive comments from the Chief Counsel for 
Advocacy of the SBA in response to the Initial Regulatory Flexibility 
Analysis provided in the proposed rule.
4. Small Entities To Which the Rule Will Apply
    This rule will impact part 145 repair stations located outside the 
territory of the U.S. that perform safety-sensitive maintenance 
functions on part 121 air carrier aircraft. The Regulatory Flexibility 
Act defines a small business as ``a business entity organized for 
profit, with a place of business located in the United States, and 
which operates primarily within the United States or which makes a 
significant contribution to the U.S. economy through payment of taxes 
or use of American products, materials or labor.'' \40\ While the 
regulatory flexibility determination does not require small foreign 
entities to be considered, foreign repair stations may be using U.S. 
components or labor, especially if they are working on U.S.-
manufactured aircraft; therefore, the FAA assumes the RFA applies.
---------------------------------------------------------------------------

    \40\ 13 CFR 121.105(a)(1). The Regulatory Flexibility Act 
defines a ``small business'' as having the same meaning as ``small 
business concern'' under section 3 of the Small Business Act. 5 
U.S.C. 601(3). Section 121.105 of 13 CFR contains the Small Business 
Administration's implementing regulations clarifying the definition 
of ``small business concern.''
---------------------------------------------------------------------------

    The SBA established size standards for various types of economic 
activities, or industries, under the North American Industry 
Classification System (NAICS).\41\ These size standards generally 
define small businesses based on the number of employees or annual 
receipts. Table 4 shows the SBA size standard, based on the NAICS code, 
applicable to repair stations, as it encompasses air transport support 
activities to include aircraft maintenance and repair services.
---------------------------------------------------------------------------

    \41\ Small Business Administration (SBA). 2019. Table of Size 
Standards. Effective August 12, 2019. https://data.sba.gov/dataset/small-business-size-standards/resource/d89a5f17-ab8e-4698-9031-dfeb34d0a773.

 Table 4--Small Business Size Standards: Aircraft Maintenance and Repair
                                Services
------------------------------------------------------------------------
            NAICS code                  Description       Size standard
------------------------------------------------------------------------
488190...........................  Other Support         $40.0 million.
                                    Activities for Air
                                    Transportation.
------------------------------------------------------------------------
Source: SBA.
NAICS = North American Industrial Classification System.
SBA = Small Business Administration.

    Although the FAA was able to identify a size standard for repair 
stations to be considered small, the FAA lacks financial data to 
determine if foreign repair stations meet the applicable size standard. 
Instead, the FAA provides an analysis estimating the total cost to 
small entities based on available data for domestic repair stations. A 
2011 antidrug and alcohol misuse prevention rule for domestic repair 
stations analyzed the effect on domestic repair stations that were 
small entities and subcontractors those entities used. That rule based 
the regulatory flexibility determination analysis on a Transportation 
Security Administration (TSA) study that used Dun & Bradstreet data to 
estimate the share of domestic repair stations that would be considered 
small entities.\42\ The findings show that 93.28% of domestic repair 
stations would be classified as small entities. Extrapolating this 
estimate to the 977 foreign repair stations used in the analysis of 
this rulemaking results in 912 foreign repair stations that could be 
considered small entities.\43\
---------------------------------------------------------------------------

    \42\ Final Rule, Supplemental Regulatory Flexibility 
Determination, Antidrug and Alcohol Misuse Prevention Programs for 
Personnel Engaged in Specified Aviation Activities: Supplemental 
Regulatory Flexibility Determination, 76 FR 12559 (Mar. 8, 2011).
    \43\ The calculation is as follows: 977*.9328 = 911.31. This 
estimate is rounded up to 912.
---------------------------------------------------------------------------

5. Projected Reporting, Recordkeeping, and Other Compliance 
Requirements
    Based on the total nominal cost of the rule to repair stations, 
$60.9 million, the cost per repair station is $62,331.\44\ Multiplying 
the cost per repair station by the estimated 912 repair stations that 
are small entities results in a total cost to small entities of $56.8 
million over five years. Table 5 shows the estimated annualized 
compliance costs by category.
---------------------------------------------------------------------------

    \44\ $60,896,928/977 = $762,330.53.

         Table 5--Average Cost of Compliance and Small Entities
------------------------------------------------------------------------
                                                     Average annualized
            Category               Number of small     cost per repair
                                      entities             station
------------------------------------------------------------------------
Program and Training Development               912               $322.52
 & Maintenance Cost.............
Training........................               912              1,942.83
Testing Cost....................               912              3,027.79
Paperwork.......................               912              4,897.96
------------------------------------------------------------------------
1. Based on a baseline of existing practices and using a 7% discount
  rate.


[[Page 103444]]

    The 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 a waiver based 
on recognition of a compatible alternative that contains minimum key 
elements in lieu of compliance with certain components of the Drug and 
Alcohol Testing Program. Entities that choose this means of compliance 
will incur $1,325 in one-time costs.
6. Significant Alternatives Considered
    Alternative 1--the Status Quo--The status quo represents a 
situation in which the FAA would not require part 145 foreign repair 
stations to test their safety-sensitive maintenance personnel for drugs 
and alcohol. This alternative is counter to Congressional direction 
and, therefore, rejected.
    Alternative 2--The FAA would work through ICAO to create an 
international standard for drug and alcohol testing of maintenance 
personnel at repair stations. While the FAA is willing to work with 
ICAO, 49 U.S.C. 44733(d)(2) requires the FAA to expeditiously proceed 
with this rulemaking. In other words, Congress directed the FAA to 
establish a program acceptable to the Administrator; working through 
ICAO to create an international standard may not expeditiously meet 
this intention given the time, resources, and scope of the adoption of 
an international standard.

C. International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the 
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal 
agencies from establishing standards or engaging in related activities 
that create unnecessary obstacles to the foreign commerce of the U.S. 
Pursuant to these Acts, the establishment of standards is not 
considered an unnecessary obstacle to the foreign commerce of the U.S., 
so long as the standard has a legitimate domestic objective, such as 
the protection of safety, and does not operate in a manner that 
excludes imports that meet this objective. The statute also requires 
consideration of international standards and, where appropriate, that 
they be the basis for U.S. standards. This rulemaking is 
congressionally mandated. The FAA assessed the potential effect of this 
rule and determined that it ensures the safety of the American public. 
Several commenters including organizations representing the interests 
of foreign governments, the commercial aviation industry, aviation 
workers, and foreign repair stations voiced their opposition to an FAA 
drug and alcohol testing standard for foreign repair stations. As 
discussed in this preamble, these commenters cited failure to recognize 
each nation's sovereignty. They also noted that ICAO would be the more 
appropriate vehicle to set worldwide standards. As a result, this 
rulemaking could create an obstacle or retaliation to foreign commerce.

D. Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement 
assessing the effects of any Federal mandate in a proposed or final 
agency rule that may result in an expenditure of $100 million or more 
(in 1995 dollars) in any one year by State, local, and tribal 
governments, in the aggregate, or by the private sector; such a mandate 
is deemed to be a ``significant regulatory action.'' The FAA currently 
uses an inflation-adjusted value of $183.0 million in lieu of $100 
million. This rule does not contain such a mandate; therefore, the 
requirements of title II of the Act do not apply.

E. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
that the FAA consider the impact of paperwork and other information 
collection burdens imposed on the public. According to the 1995 
amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an 
agency may not collect or sponsor the collection of information, nor 
may it impose an information collection requirement unless it displays 
a currently valid Office of Management and Budget (OMB) control number.
    This action contains the following amendments to the existing 
information collection requirements previously approved under OMB 
Control Number 2120-0535. As required by the Paperwork Reduction Act of 
1995 (44 U.S.C. 3507(d)), the FAA submitted these information 
collection amendments to OMB for its review.
    Summary: Under Sec. Sec.  120.1, 120.123 and 120.227, this rule 
extends the drug and alcohol testing regulations beyond the territory 
of the U.S. certificated part 145 repair stations located outside the 
territory of the United States to implement a drug and alcohol testing 
program in accordance with 14 CFR part 120 and 49 CFR part 40 to cover 
their employees who perform safety-sensitive maintenance functions on 
part 121 air carrier aircraft. Each repair station would be required to 
obtain an Antidrug and Alcohol Misuse Prevention Program Operations 
Specification. In addition, each repair station located outside the 
territory of the U.S. would be required to provide drug and alcohol 
testing program management information system (MIS) data.
    In addition, the final rule establishes a waiver 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 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.
    Use: The information will be used by the part 145 repair station 
located outside of the territory of the U.S. to certify implementation 
and maintenance of a drug and alcohol testing program. The FAA's Drug 
Abatement Compliance and Enforcement Inspectors will use this 
information to identify those foreign repair stations with an active 
program for inspection scheduling. Inspections are used to verify 
compliance with the drug and alcohol testing regulations and 
requirements. In addition, the Drug Abatement Division will use the 
annual MIS data reported to calculate the annual random drug and 
alcohol testing rates in the aviation industry.
    Under the expanded waiver option, i.e., a waiver based on 
recognition, the information will be used by foreign governments, on 
behalf of their repair stations within their territories, or foreign 
repair stations if their regulating country does not avail themselves 
of this option, to demonstrate the foreign government or the part 145 
repair stations located outside of the territory of the U.S. existing 
requirements promulgated under the laws of the country as a compatible 
alternative that contains the minimum key elements of 14 CFR part 120.
    Respondents (including number of): There are currently 977 part 145 
certificated repair stations located in 65 countries.
    Frequency: Part 145 repair stations located outside the territory 
of the U.S. will provide information for program certification only 
once; however, these repair stations will also incur annual

[[Page 103445]]

program maintenance: e.g., updates to the programs per new guidance; 
the random pool list; and the overall testing process. The aggregate 
annual testing data would be provided electronically through the 
Department of Transportation's Drug and Alcohol Management Information 
System.
    For a waiver based on recognition, foreign governments, or part 145 
repair stations located outside the territory of the U.S. if their 
regulating country does not avail themselves of this option, will 
provide information for the Administrator's approval only once.
---------------------------------------------------------------------------

    \45\ Based on the previous PRA, the FAA assumes 16 hours in the 
first year to establish the testing program and one hour to register 
with the FAA's Drug Abatement Division. Therefore, 17 hours are 
required for the first year. For each year after, the recurring time 
to update and maintain the testing list will be 16 hours. The 
average over five years results in the 16.2 hours per year.
    \46\ Office and Administrative Support Workers (SOC 43-9199), 
May 2022; Mean Hourly Wage $20.75 https://www.bls.gov/oes/2022/May/oes439199.htm. The total wage includes BLS compensation data. For 
2020, BLS has wages at 70.5 percent total compensation while 
benefits are 29.5 percent. Employer Costs for Employee 
Compensation--December 2022. https://www.bls.gov/news.release/archives/ecec_03172023.htm.
---------------------------------------------------------------------------

    Annual Burden Estimate:

                       1. Burden for Program Certification and Annual Program Maintenance
----------------------------------------------------------------------------------------------------------------
                                               Number of repair    Hours per repair
                Documentation                      stations             station        Hourly wage   Total cost
----------------------------------------------------------------------------------------------------------------
Antidrug and Alcohol Misuse Prevention                      977           16.2 \45\   $29.43 \46\      $465,800
 Program Operations Specification...........
----------------------------------------------------------------------------------------------------------------


                                         2. Burden for Annual Test Data
----------------------------------------------------------------------------------------------------------------
                                                     Total      Time per                               Average
                  Documentation                     records      record    Hourly wage   Total cost  yearly cost
                                                      \47\       (hours)                                 \48\
----------------------------------------------------------------------------------------------------------------
Training records................................      544,176        0.25  \49\ $33.57   $2,756,696     $551,339
Records related to the alcohol and drug               262,384         5.0        34.47   26,584,052    5,316,810
 collection process, test results, refusal to
 test, employee dispute records, SAP reports,
 follow-up tests................................
                                                 ---------------------------------------------------------------
Total...........................................      806,560         N/A          N/A   29,340,748    5,868,150
----------------------------------------------------------------------------------------------------------------

    To calculate the number of drug and alcohol training records, the 
FAA took the 2021 data showing 147,194 mechanics and 29,439 supervisors 
and accounted for a 0.49 percent growth rate over five years. 
Accounting for these rates results in an initial first year total of 
148,637 mechanics and 29,728 supervisors. This is a total of 178,365 
employees. In the first year all mechanics and supervisors will take 
anti-drug and alcohol training. These are two separate trainings. This 
requirement will result in 178,365 records for anti-drug training and 
178,365 for alcohol training. In addition, supervisors will have to 
take an additional supervisor reasonable cause/reasonable suspicion 
determinations training for drugs and alcohol. This requirement will 
add another 59,456 records since they are two separate trainings as 
well.\50\ Therefore, in the first year, there will be a total of 
416,186 records.\51\
---------------------------------------------------------------------------

    \47\ Estimated number of records from 2018 to 2022.
    \48\ Average yearly cost is calculated by dividing total cost by 
five years.
    \49\ Information and Records Clerks (SOC 43-4000), May 2022; 
Mean Hourly Wage $23.67 https://www.bls.gov/oes/2022/may/naics3_481000.htm#43-4000. The total wage includes BLS compensation 
data. For 2022, BLS has wages at 70.5 percent total compensation 
while benefits are 29.5 percent. Employer Costs for Employee 
Compensation--December 2022. https://www.bls.gov/news.release/archives/ecec_03172023.htm.
    \50\ 29,728*2 = 59,4560.0
    \51\ 178,365 + 178,365 + 59,456 = 416,186.
---------------------------------------------------------------------------

    For year two and beyond, for drug records, the total records 
reflect the increase in new mechanics and supervisors which will be 
required to take the drug training. Using the growth rate this results 
in 727 mechanics and 145 supervisors for a total of 872 records. The 
145 new supervisors will also have to take the reasonable cause/
reasonable suspicion determinations for drugs training. In addition, 
there is recurrent reasonable cause/reasonable suspicion determinations 
for drugs training that all supervisors will have to take every 12 to 
18 months. In year two, this results in 29,728 supervisors taking the 
recurring trainings. Thus, the records for drug training in year two is 
30,745.\52\ In addition, new mechanics and supervisors will be required 
to take alcohol training and supervisors will have to take the 
reasonable cause/reasonable suspicion determinations for alcohol 
training. This adds another 1,017 records. There is no recurrent 
alcohol training for supervisors. Therefore, in year two the total 
records are 31,762.\53\
---------------------------------------------------------------------------

    \52\ 872 + 145 + 29.728 = 30,745.
    \53\ 30,745 + 1,017 = 31,762
---------------------------------------------------------------------------

    The same calculation for year two is repeated for years three 
through five. There are 31,919 records in year three, 32,075 in year 
four, and 32,234 in year five. This results in a total of 544,176 total 
training records over the five years.\54\
---------------------------------------------------------------------------

    \54\ 416,186 + 31,762 + 31,919 + 32,075 + 32,234 = 544,176
---------------------------------------------------------------------------

    To calculate the number of records related to alcohol and drug 
collection, the FAA sums the number of pre-employment drug tests, 
random drug and alcohol tests, and post-accident, reasonable cause, 
return to duty, and follow-up drug and alcohol tests per year beginning 
in year two. First, for drug testing, every new employee performing 
maintenance will be required to take a pre-employment drug test but not 
an alcohol test. Second, the FAA estimates 25 percent of current 
employees performing maintenance will be randomly drug tested per year. 
Third, there will be post-accident, reasonable cause, return to duty, 
or follow-up testing. The FAA estimates 1.70 percent of employees 
tested in a given year will be tested again under this category. The 
total drug tests over the five years is 187,202.\55\
---------------------------------------------------------------------------

    \55\ This is broken down by category as 3,516 pre-employment 
drug tests, 180,558 random drug tests, 3,128 post-accident, 
reasonable cause, return to duty, and follow-up tests.
---------------------------------------------------------------------------

    For alcohol testing, no pre-employment alcohol testing is required. 
The other two categories of alcohol testing will be the same as for 
drug testing. However, the FAA estimates random drug testing will occur 
at a rate of 10 percent of current employees and 4.10 percent for post-
accident,

[[Page 103446]]

reasonable cause, return to duty, and follow-up tests. The total 
alcohol tests over the five years is 75,182.\56\ Taking the sum of drug 
and alcohol tests results in 262,384 records related to alcohol and 
drug collection.
---------------------------------------------------------------------------

    \56\ This is broken down by category as 72,223 random drug tests 
and 2,959 post-accident, reasonable cause, return to duty, and 
follow-up tests.

                                           Waiver Based on Recognition
----------------------------------------------------------------------------------------------------------------
                                                       Total            Time per       Hourly wage
                 Documentation                    submissions \57\   submission \58\      \59\       Total cost
----------------------------------------------------------------------------------------------------------------
Request for a Waiver Based on Recognition......                65                20        $66.25       $86,124
----------------------------------------------------------------------------------------------------------------

    The FAA assumes that every foreign government that regulates part 
145 repair stations located outside the territory of the U.S. will 
submit a request for a waiver based on recognition. There are 65 
countries that have part 145 repair stations within their territories 
so there will be 65 submissions. Each submission will require 20 hours 
at an hourly wage of $66.25. Thus, the total cost for all 65 of the 
submissions is $86,124. This will be one time cost.
---------------------------------------------------------------------------

    \57\ Each foreign government that regulates part 145 repair 
stations will provide one submission.
    \58\ The total hours per submission is 20 hours and is 
disaggregated between a government program analyst that will do 15 
hours of the work and a government manager that will do 5 hours of 
work.
    \59\ The hourly wage is the weighted average between the wages 
of the government program analyst and the government manager. Since 
the government program analyst will do 15 hours of the total 20 
hours of work their wage, $59.93, is multiplied by 0.75 (15/20 = 
0.75). The government manager does the other 5 hours of work (5/20 = 
0.25) and thus their wage, $86.41, is multiplied by 0.25. 
(($59.93*0.75) + ($86.41*0.25) = $66.25).
    FAA Technical Pay Band, K Band with Washington DC locality; 
effective Jan. 2022, minimum salary $131,917. The total loaded 
salary of $179,737 is divided by 2,080 hours to get the $86.41 
hourly wage. https://web.archive.org/web/20220402230925/https://www.faa.gov/sites/faa.gov/files/2022-02/core_salary_with_conversion.xlsx.
    FAA Technical Pay Band, I Band with Washington DC locality; 
effective Jan. 2022, minimum salary $90,877. The total loaded salary 
of $123,820 is divided by 2,080 hours to get the $59.93 hourly wage. 
https://web.archive.org/web/20220402230925/https://www.faa.gov/sites/faa.gov/files/2022-02/core_salary_with_conversion.xlsx.
---------------------------------------------------------------------------

F. International Compatibility

    In keeping with U.S. obligations under the Convention on 
International Civil Aviation, it is FAA policy to conform to ICAO 
Standards and Recommended Practices to the maximum extent practicable. 
The FAA has determined that there are no ICAO Standards and Recommended 
Practices that correspond to these proposed regulations.

G. Environmental Analysis

    FAA Order 1050.1F identifies FAA actions that are categorically 
excluded from preparation of an environmental assessment or 
environmental impact statement under the National Environmental Policy 
Act (NEPA) in the absence of extraordinary circumstances. The FAA has 
determined this rulemaking action qualifies for the categorical 
exclusion identified in paragraph 5-6.6f for regulations and involves 
no extraordinary circumstances.

VII. Executive Order Determinations

A. Executive Order 13132, Federalism

    The FAA has analyzed this final rule under the principles and 
criteria of Executive Order (E.O.) 13132, Federalism. The FAA has 
determined that this action will not have a substantial direct effect 
on the States, or the relationship between the Federal Government and 
the States, or on the distribution of power and responsibilities among 
the various levels of government, and, therefore, will not have 
federalism implications.

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

    The FAA analyzed this final rule under E.O. 13211, Actions 
Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use (May 18, 2001). The FAA has determined that it is 
not a ``significant energy action'' under the executive order and is 
not likely to have a significant adverse effect on the supply, 
distribution, or use of energy.

C. Executive Order 13609, Promoting International Regulatory 
Cooperation

    Executive Order 13609, Promoting International Regulatory 
Cooperation, promotes international regulatory cooperation to meet 
shared challenges involving health, safety, labor, security, 
environmental, and other issues and reduce, eliminate, or prevent 
unnecessary differences in regulatory requirements. The FAA has 
analyzed this action under the policy and agency responsibilities of 
Executive Order 13609 and has determined that this action could create 
differences in international regulatory requirements. The FAA 
acknowledges that a foreign government may ask the FAA to revisit 
certain international agreements, as discussed in section IV.I, to 
accommodate this action.

VIII. Additional Information

A. Electronic Access and Filing

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

B. Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires the FAA to comply with small entity requests for 
information or advice about compliance with statutes and regulations 
within its jurisdiction. A small entity with questions regarding this 
document may contact its local FAA official or the person listed under 
the FOR FURTHER INFORMATION CONTACT

[[Page 103447]]

heading at the beginning of the preamble. To find out more about SBREFA 
on the internet, visit https://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

List of Subjects in 14 CFR Part 120

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

The Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration amends chapter I of title 14, Code of Federal 
Regulations as follows:

PART 120--DRUG AND ALCOHOL TESTING PROGRAM

0
1. The authority citation for part 120 is revised to read as follows:

    Authority: 49 U.S.C. 106(f), 40101-40103, 40113, 40120, 41706, 
41721, 44106, 44701, 44702, 44703, 44709, 44710, 44711, 44733, 
45101-45105, 46105, 46306.


0
2. Revise and republish Sec.  120.1 to read as follows:


Sec.  120.1  Applicability.

    This part applies to the following persons:
    (a) All air carriers and operators certificated under part 119 of 
this chapter authorized to conduct operations under part 121 or part 
135 of this chapter, all air traffic control facilities not operated by 
the FAA or by or under contract to the U.S. military; and all operators 
as defined in 14 CFR 91.147.
    (b) All individuals who perform, either directly or by contract, a 
safety-sensitive function listed in subpart E or subpart F of this 
part.
    (c) All part 145 certificate holders located in the territory of 
the United States who perform safety-sensitive functions and elect to 
implement a drug and alcohol testing program under this part.
    (d) Beginning December 20, 2027, all part 145 certificate holders 
outside the territory of the United States who perform safety-sensitive 
maintenance functions on part 121 air carrier aircraft, except that 
section 120.5 and subparts E and F of this part 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 recognition pursuant to Sec.  120.10.
    (e) All contractors who elect to implement a drug and alcohol 
testing program under this part.

0
3. Effective December 20, 2027, amend Sec.  120.1 by revising paragraph 
(d) to read as follows:


Sec.  120.1  Applicability.

* * * * *
    (d) All part 145 certificate holders outside the territory of the 
United States who perform safety-sensitive maintenance functions on 
part 121 air carrier aircraft, except that section 120.5 and subparts E 
and F of this part 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 recognition pursuant to Sec.  120.10.

0
4. Revise Sec.  120.5 to read as follows:


Sec.  120.5  Procedures.

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

0
5. Add Sec.  120.9 to read as follows:


Sec.  120.9  Waivers for Part 145 certificate holders outside the 
territory of the United States.

    (a) A part 145 certificate holder whose employees perform safety-
sensitive maintenance functions on part 121 air carrier aircraft 
outside the territory of the United States may request a waiver from 
the Administrator from any requirements under 14 CFR part 120, subpart 
E or F, if specific requirements of subpart E or F are inconsistent 
with the laws of the country where the repair station is located.
    (b) Each waiver request must include, at a minimum, the following 
elements:
    (1) Information about the organization, including the name and 
mailing address and, if desired, other contact information such as a 
fax number, telephone number, or email address;
    (2) The specific section or sections of this part from which the 
organization seeks a waiver;
    (3) The reasons why granting the waiver would not adversely affect 
the prevention of accidents and injuries resulting from the use of 
prohibited drugs and/or the misuse of alcohol by employees;
    (4) A copy of the law that is inconsistent with the provision(s) of 
this part from which a waiver is sought;
    (5) An explanation of how the law is inconsistent with the 
provision(s) of this part from which a waiver is sought; and
    (6) A description of the alternative means that will be used to 
achieve the objectives of the provision that is the subject of the 
waiver or, if applicable, a justification of why it would be impossible 
to achieve the objectives of the provision in any way.
    (c) Each request for a waiver must be submitted to the Federal 
Aviation Administration, Office of Aerospace Medicine, in a form and 
manner acceptable to the Administrator.
    (d) Each request for a waiver must be submitted at least 90 days 
before the organization needs it to take effect.

0
6. Add Sec.  120.10 to read as follows:


Sec.  120.10  Waiver based on recognition of a foreign government's 
existing requirements or an existing testing program of a Part 145 
certificate holder outside the territory of the United States.

    (a) General. A foreign government on behalf of its part 145 
certificate holders, or a part 145 certificate holder whose employees 
perform safety-sensitive maintenance functions on part 121 air carrier 
aircraft outside the territory of the United States (herein referred to 
as a foreign repair station), may request a waiver from the 
Administrator from the requirements of this part in recognition of the 
foreign government's existing requirements, or the foreign repair 
station's existing testing program developed consistent with the laws 
of its home country, as a compatible alternative to the requirements of 
this part.
    (b) Compatibility. A request for recognition must demonstrate that 
the foreign government's existing requirements, or the foreign repair 
station's existing testing program, contain the following key elements 
of this part:
    (1) 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.
    (2) An education or training program or materials that explain the 
impact and consequences of misusing alcohol and using drugs while 
performing safety-sensitive maintenance.
    (3) 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.
    (c) Requests for recognition of a foreign government's existing 
requirements or a foreign repair station's existing testing program. 
(1) Each request for recognition of a foreign

[[Page 103448]]

government's existing requirements or a foreign repair station's 
existing testing program must contain:
    (i) The name, title, address, email address, and telephone number 
of the primary person to be contacted regarding review of the request;
    (ii) Documentation of the foreign government's existing 
requirements or the foreign repair station's existing testing program 
demonstrating that the requirements or program contain the key elements 
of this part described in paragraph (b) of this section, including, if 
appropriate, copies of applicable laws, regulations, and other 
requirements carrying the force of law; and
    (iii) Appropriate data, records, or supporting explanation for the 
Administrator to consider in determining whether the foreign 
government's existing requirements or the foreign repair station's 
existing testing program contain the key elements of this part; and
    (iv) A statement that the requestor intends to notify the 
Administrator within 30 days of any change to the key elements 
described in paragraph (b) of this section that form the basis of the 
Administrator's recognition pursuant to paragraph (d)(2) of this 
section and provide a description of those changes in such 
notification.
    (2) Each request for recognition must be submitted to the Federal 
Aviation Administration, Office of Aerospace Medicine, in a form and 
manner acceptable to the Administrator.
    (3) Each request for recognition must be submitted at least 90 days 
before the organization needs it to take effect.
    (d) Disposition. (1) The Administrator will evaluate a request for 
recognition and may request additional information, documentation, or 
explanation, as needed, to supplement the request.
    (2) A foreign government's existing requirements or a foreign 
repair station's existing testing program will be recognized as a 
compatible alternative to the requirements of this part if the 
Administrator determines that:
    (i) The request complies with the requirements of paragraph (c) of 
this section; and
    (ii) The foreign government's existing requirements, or the foreign 
repair station's existing testing program, contain the key elements of 
this part as described in paragraph (b) of this section.
    (e) Effect and validity. (1) Recognition by the Administrator 
issued to a foreign government pursuant to paragraph (d)(2) of this 
section will apply to all foreign repair stations within the territory 
of the foreign government and subject to the recognized compatible 
alternative to the requirements of this part.
    (2) Recognition by the Administrator will remain valid so long as 
the foreign government's existing requirements, or the foreign repair 
station's existing testing program, retains the key elements of this 
part that formed the basis of the Administrator's recognition pursuant 
to paragraph (d)(2) of this section.
    (f) Compliance. (1) Each foreign repair station subject to existing 
requirements or an existing testing program recognized as a compatible 
alternative to the requirements of this part pursuant to paragraph 
(d)(2) of this section must maintain an FAA-issued letter on file 
documenting the recognition.
    (2) The FAA may modify, suspend, or withdraw recognition by the 
Administrator when:
    (i) A recognition is no longer valid;
    (ii) A foreign repair station fails to implement a testing program 
consistent with a recognition issued pursuant to paragraph (d)(2) of 
this section; or
    (iii) A foreign government or foreign repair station has not 
provided the notification described in paragraph (c)(1)(iv) of this 
section.

0
7. Amend Sec.  120.117 by:
0
a. Revising paragraph (a)(5);
0
b. Redesignating paragraph (a)(6) as paragraph (a)(7);
0
c. Adding new paragraph (a)(6); and
0
d. Revising paragraph (c).
    The revisions and additions read as follows:


Sec.  120.117  Implementing a drug testing program.

    (a) * * *

------------------------------------------------------------------------
            If you are . . .                      You must . . .
------------------------------------------------------------------------
 
                              * * * * * * *
(5) A part 145 certificate holder        Obtain an Antidrug and Alcohol
 located inside the territory of the      Misuse Prevention Program
 United States who has your own drug      Operations Specification by
 testing program.                         contacting your Principal
                                          Maintenance Inspector or
                                          register with the FAA, Office
                                          of Aerospace Medicine, Drug
                                          Abatement Division (AAM-800),
                                          800 Independence Avenue SW,
                                          Washington, DC 20591, if you
                                          opt to conduct your own drug
                                          testing program.
(6) A part 145 certificate holder        Obtain an Antidrug and Alcohol
 located outside the territory of the     Misuse Prevention Program
 United States whose employees perform    Operations Specification by
 safety-sensitive maintenance functions   contacting your Principal
 on part 121 air carrier aircraft,        Maintenance Inspector.
 unless you have received recognition
 pursuant to Sec.   120.10.
 
                              * * * * * * *
------------------------------------------------------------------------

* * * * *
    (c) If you are an individual or company that intends to provide 
safety-sensitive services by contract to a part 119 certificate holder 
with authority to operate under part 121 and/or part 135 of this 
chapter, an operation as defined in Sec.  91.147 of this chapter, or an 
air traffic control facility not operated by the FAA or by or under 
contract to the U.S. military, use the following chart to determine 
what you must do if you opt to have your own drug testing program.

------------------------------------------------------------------------
            If you are . . .                      You must . . .
------------------------------------------------------------------------
(1) A part 145 certificate holder        (i) Have an Antidrug and
 located inside the territory of the      Alcohol Misuse Prevention
 United States and opt to conduct your    Program Operations
 own program under this part.             Specification or register with
                                          the FAA, Office of Aerospace
                                          Medicine, Drug Abatement
                                          Division (AAM-800), 800
                                          Independence Avenue SW,
                                          Washington, DC 20591,

[[Page 103449]]

 
                                         (ii) Implement an FAA drug
                                          testing program no later than
                                          the date you start performing
                                          safety-sensitive functions for
                                          a part 119 certificate holder
                                          with authority to operate
                                          under part 121 or 135, or
                                          operator as defined in Sec.
                                          91.147 of this chapter, and
                                         (iii) Meet the requirements of
                                          this subpart as if you were an
                                          employer.
(2) A part 145 certificate holder        (i) Obtain an Antidrug and
 located outside the territory of the     Alcohol Misuse Prevention
 United States whose employees perform    Program Operations
 maintenance functions on part 121 air    Specification by contacting
 carrier aircraft, unless you have        your Principal Maintenance
 received recognition pursuant to Sec.    Inspector.
  120.10.                                (ii) Implement a drug testing
                                          program acceptable to the
                                          Administrator no later than
                                          December 20, 2027, and
                                         (iii) Meet the requirements of
                                          this subpart as if you were an
                                          employer in accordance with
                                          any applicable waivers or
                                          exemptions.
(3) A contractor who opts to implement   (i) Register with the FAA,
 a testing program under this part.       Office of Aerospace Medicine,
                                          Drug Abatement Division (AAM-
                                          800), 800 Independence Avenue
                                          SW, Washington, DC 20591,
                                         (ii) Implement an FAA drug
                                          testing program no later than
                                          the date you start performing
                                          safety-sensitive functions for
                                          a part 119 certificate holder
                                          with authority to operate
                                          under part 121 or 135, or
                                          operator as defined in Sec.
                                          91.147 of this chapter, or an
                                          air traffic control facility
                                          not operated by the FAA or by
                                          or under contract to the U.S.
                                          Military, and
                                         (iii) Meet the requirements of
                                          this subpart as if you were an
                                          employer.
------------------------------------------------------------------------

* * * * *

0
8. Effective December 20, 2027, amend Sec.  120.117 by revising 
paragraph (c)(2) to read as follows:


Sec.  120.117  Implementing a drug testing program.

* * * * *
    (c) * * *

------------------------------------------------------------------------
            If you are . . .                      You must . . .
------------------------------------------------------------------------
 
                              * * * * * * *
(2) A part 145 certificate holder        (i) Obtain an Antidrug and
 located outside the territory of the     Alcohol Misuse Prevention
 United States whose employees perform    Program Operations
 maintenance functions on part 121 air    Specification by contacting
 carrier aircraft, unless you have        your Principal Maintenance
 received recognition pursuant to Sec.    Inspector.
  120.10.
                                         (ii) Implement a drug testing
                                          program acceptable to the
                                          Administrator, and
                                         (iii) Meet the requirements of
                                          this subpart as if you were an
                                          employer in accordance with
                                          any applicable waivers or
                                          exemptions.
 
                              * * * * * * *
------------------------------------------------------------------------


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


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

    (a) Except for those testing processes applicable to persons 
testing pursuant to Sec.  120.1(d), no part of the testing process 
(including specimen collection, laboratory processing, and MRO actions) 
shall be conducted outside the territory of the United States.
    (1) Except for those persons testing pursuant to Sec.  120.1(d), 
each employee who is assigned to perform safety-sensitive functions 
solely outside the territory of the United States shall be removed from 
the random testing pool upon the inception of such assignment.
* * * * *
    (b) Except for those persons testing pursuant to Sec.  120.1(d), 
the provisions of this subpart shall not apply to any individual who 
performs a function listed in Sec.  120.105 by contract for an employer 
outside the territory of the United States.

0
10. Amend Sec.  120.225 by:
0
a. Revising paragraph (a)(5);
0
b. Redesignating paragraph (a)(6) as paragraph (a)(7);
0
c. Adding new paragraph (a)(6); and
0
d. Revising paragraphs (c), (d) introductory text and (d)(1).
    The revisions and addition read as follows:


Sec.  120.225  How to implement an alcohol testing program.

    (a) * * *

------------------------------------------------------------------------
            If you are . . .                      You must . . .
------------------------------------------------------------------------
 
                              * * * * * * *
(5) A part 145 certificate holder        Obtain an Antidrug and Alcohol
 located inside the territory of the      Misuse Prevention Program
 United States who has your own alcohol   Operations Specification by
 testing program.                         contacting your Principal
                                          Maintenance Inspector or
                                          register with the FAA Office
                                          of Aerospace Medicine, Drug
                                          Abatement Division (AAM-800),
                                          800 Independence Avenue SW,
                                          Washington, DC 20591, if you
                                          opt to conduct your own
                                          alcohol testing program.

[[Page 103450]]

 
(6) A part 145 certificate holder        Obtain an Antidrug and Alcohol
 located outside the territory of the     Misuse Prevention Program
 United States who performs safety-       Operations Specification by
 sensitive maintenance functions on       contacting your Principal
 part 121 air carrier aircraft, unless    Maintenance Inspector.
 you have received recognition pursuant
 to Sec.   120.10.
 
                              * * * * * * *
------------------------------------------------------------------------

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

------------------------------------------------------------------------
            If you are . . .                      You must . . .
------------------------------------------------------------------------
(1) A part 145 certificate holder        (i) Have an Antidrug and
 located inside the territory of the      Alcohol Misuse Prevention
 United States and opt to conduct your    Program Operations
 own program under this part.             Specifications or register
                                          with the FAA, Office of
                                          Aerospace Medicine, Drug
                                          Abatement Division (AAM-800),
                                          800 Independence Avenue SW,
                                          Washington, DC 20591,
                                         (ii) Implement an FAA alcohol
                                          testing program no later than
                                          the date you start performing
                                          safety-sensitive functions for
                                          a part 119 certificate holder
                                          with the authority to operate
                                          under parts 121 and/or 135, or
                                          operator as defined in Sec.
                                          91.147 of this chapter, and
                                         (iii) Meet the requirements of
                                          this subpart as if you were an
                                          employer.
(2) A part 145 certificate holder        (i) Obtain an Antidrug and
 located outside of the territory of      Alcohol Misuse Prevention
 the United States who performs           Program Operations
 maintenance functions on part 121 air    Specification by contacting
 carrier aircraft, unless you have        your Principal Maintenance
 received recognition pursuant to Sec.    Inspector.
  120.10.                                (ii) Implement an alcohol
                                          testing program acceptable to
                                          the Administrator no later
                                          than December 20, 2027, and
                                         (iii) Meet the requirements of
                                          this subpart as if you were an
                                          employer in accordance with
                                          any applicable waivers or
                                          exemptions.
(3) A contractor.......................  (i) Register with the FAA,
                                          Office of Aerospace Medicine,
                                          Drug Abatement Division (AAM-
                                          800), 800 Independence Avenue
                                          SW, Washington, DC 20591,
                                         (ii) Implement an FAA alcohol
                                          testing program no later than
                                          the date you start performing
                                          safety-sensitive functions for
                                          a part 119 certificate holder
                                          with authority to operate
                                          under parts 121 and/or 135, or
                                          operator as defined in Sec.
                                          91.147 of this chapter, and
                                         (iii) Meet the requirements of
                                          this subpart as if you were an
                                          employer.
------------------------------------------------------------------------

    (d) To obtain an antidrug and alcohol misuse prevention program 
operations specification:
    (1) You must contact your FAA Principal Operations Inspector or 
Principal Maintenance Inspector. Provide him/her with the following 
information:
* * * * *

0
11. Effective December 20, 2027, amend Sec.  120.225 by revising 
paragraph (c)(2) to read as follows:


Sec.  120.225  How to implement an alcohol testing program.

* * * * *
    (c) * * *

------------------------------------------------------------------------
            If you are . . .                      You must . . .
------------------------------------------------------------------------
 
                              * * * * * * *
(2) A part 145 certificate holder        (i) Obtain an Antidrug and
 located outside of the territory of      Alcohol Misuse Prevention
 the United States who performs           Program Operations
 maintenance functions on part 121 air    Specification by contacting
 carrier aircraft, unless you have        your Principal Maintenance
 received recognition pursuant to Sec.    Inspector.
  120.10.                                (ii) Implement an alcohol
                                          testing program acceptable to
                                          the Administrator, and
                                         (iii) Meet the requirements of
                                          this subpart as if you were an
                                          employer in accordance with
                                          any applicable waivers or
                                          exemptions.
 
                              * * * * * * *
------------------------------------------------------------------------


0
12. Amend Sec.  120.227 by revising paragraphs (a) introductory text, 
(a)(1), and (b) to read as follows:


Sec.  120.227  Employees located outside the U.S.

    (a) Except for those persons testing pursuant to Sec.  120.1(d), no 
covered employee shall be tested for alcohol misuse while located 
outside the territory of the United States.
    (1) Except for those persons testing pursuant to Sec.  120.1(d), 
each covered employee who is assigned to perform safety-sensitive 
functions solely outside

[[Page 103451]]

the territory of the United States shall be removed from the random 
testing pool upon the inception of such assignment.
* * * * *
    (b) Except for those persons testing pursuant to Sec.  120.1(d), 
the provisions of this subpart shall not apply to any person who 
performs a safety-sensitive function by contract for an employer 
outside the territory of the United States.

    Issued under authority provided by 49 U.S.C. 106(f), 45102, 
44731(d), in Washington, DC.
Michael Gordon Whitaker,
Administrator.
[FR Doc. 2024-29837 Filed 12-16-24; 8:45 am]
BILLING CODE 4910-13-P

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