Foreign Repair Testing Comments
The International Brotherhood of Teamsters
Drug and Alcohol Testing of Certain Maintenance Provider Employees Located Outside of the United States
[Docket No. FAA-2012-1058 Notice No. 24-05]
Federal Aviation Administration
U.S. Department of Transportation
April 5, 2024
Prepared by:
Cole Scandaglia, Senior Legislative
Representative and Policy Advisor
The International Brotherhood of Teamsters (IBT) is pleased to provide comments to the Federal Aviation Administration’s (FAA) Notice of Proposed Rulemaking (NPRM) entitled Drug and Alcohol Testing of Certain Maintenance Provider Employees Located Outside of the United States. The Teamsters are proud to represent tens of thousands of members in the aviation industry who ensure, and rely on, the safety of aircraft and of our National Airspace System. This includes pilots and flight attendants for whom planes are their workplaces, and demand that aircraft be maintained safely, regardless of where the maintenance is performed. Important to this rulemaking, this also includes the world’s most highly skilled maintenance technicians, who maintain aircraft across the nation and whose work is increasingly threatened by carriers’ outsourcing schemes which place profit above safety.
Through this NPRM, the FAA proposes to require certificated repair stations located outside the territory of the United States whose employees perform safety-sensitive maintenance functions on certain air carrier aircraft to obtain and implement a drug and alcohol testing program. The Teamsters support this rulemaking in the strongest possible terms and urge the expeditious adoption of a final rulemaking.
Currently, employees of part 145 repair stations located outside the territory of the United States and who perform safety-sensitive maintenance functions on part 121 air carrier aircraft are not subject to the Department of Transportation’s drug and alcohol testing program. This deficiency is one of a number of safety oversight requirements that only attach to maintenance performed domestically. In total, the amount of heavy maintenance being performed at foreign stations has increased dramatically over the last 30 years as has FAA’s certification of foreign stations, which now stands at above 900 facilities.
The Teamsters have long argued for a single level of safety, and that the current “two-tiered’ system of regulation is inappropriate and fundamentally unsafe. Further, the ability of air carriers to evade regulatory responsibilities and the attendant costs of those responsibilities has undoubtedly played a role in the continued outsourcing of heavy maintenance. Thankfully, Congress has agreed, mandating the FAA promulgate rulemaking requiring drug and alcohol testing programs for these part 145 employees – in 2012 via section 308 of the FAA Modernization and Reform Act, and again in 2016 via section 2112 of the FAA Extension, Safety, and Security Act of 2016, when FAA failed to act following the 2012 directive. We have been deeply disappointed with the failure of the FAA to respond to original the Congressional mandate for over a decade.
However, with the publication of this NPRM, FAA is finally taking steps towards satisfying both Congressional intent and the interests of our members. We strongly commend the agency, the Department, and the Biden Administration for finally acting to better ensure safety in our skies and at our workplaces.
Application of Part 40
As FAA discusses, 49 USC 44733(d) requires covered employees 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”. Through this NPRM, FAA has correctly defined an “acceptable” testing program by simply applying existing part 120 and part 40 standards, stating that the agency “has long held that the standards… are acceptable drug and alcohol testing programs for the aforementioned safety-sensitive functions”. The Teamsters agree. It would be inappropriate and inconsistent with Congressional intent to only apply these sections in part, given the wide and consistent application of the regulations to DOT-regulated safety sensitive aviation workers, and transportation workers more broadly. Further, the Teamsters would strongly oppose the creation of a patchwork system in which foreign entities could be invited to propose “equivalent” testing programs to satisfy the statutory requirement. DOT’s reliance on existing part 40 standards to address the use of alcohol and controlled substances for domestic covered employees clearly necessitates an identical application for any further employees entered into its testing programs. The FAA should maintain this determination and application in its final rule.
Exemptions and Waivers to Drug and Alcohol Program Requirements
Under Section 120.9 the FAA proposes to create an exemption process by which a entity can request an exemption if they demonstrate that “specific requirements of the subpart are inconsistent with the laws of the country where the repair station is located” and 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 or, if applicable, a justification of why it would be impossible to achieve the objectives of the provision in any way”.
In the event the rule includes an exemption process, the Teamsters strongly support a narrowly tailored process and commend the FAA for proposing such a mechanism. The provision of exemptions predicated on other factors like revenue or workforce size would be clearly inappropriate in the pursuit of one level of safety across maintenance providers and contradict Congressional intent.
In the NPRM, FAA requires the submission of six elements which must be included in a waiver request, including:
(1) Information about your organization, including your name and mailing address and, if you wish, other contact information such as a fax number, telephone number, or email address;
(2) The specific section or sections of this part from which you seek a waiver;
(3) The reasons why granting the waiver would not adversely affect the prevention of accidents and injuries resulting from the use of prohibited drugs or the misuse of alcohol by employees;
(4) A copy of the law that is inconsistent with the provision(s) of this part from which a waiver is sought;
(5) An explanation of how the law is inconsistent with the provision(s) of this part from which a waiver is sought, and;
(6) A description of the alternative means that will be used to achieve the objectives of the provision that is the subject of the waiver or, if applicable, a justification of why it would be impossible to achieve the objectives of the provision in any way.
Taken together, these elements provide an adequately high bar for the granting of an exemption request. In particular, we urge FAA to adopt a negative presumption under element #3 – all exemption requests should be considered under the assumption that a waiver will adversely affect accidents and injuries unless categorically proven otherwise.
In regard to element #4 and #5, we urge the FAA to adopt a narrow interpretation of “inconsistency” and require that the provider cite laws that would explicitly be inconsistent with the rule’s mandate. The FAA must not determine inconsistency based on speculative interpretations of laws with hypothetical or tangential relevance – the provider must prove that the law, in plain reading, prohibits the implementation of a section(s) of the final rule. In implementing element #6, the FAA should consider alternative measures where appropriate which uphold the core requirements of the rule. If the FAA believes that countries’ laws on indirect but adjacent issues such as data privacy are inconsistent, the Teamsters encourage the FAA to mandate tailored requirements which still retain Part 40 compliant random drug and alcohol testing regimes while identifying means of compliance to deal with specific attendant issues.
In reviewing comments filed to the docket before the filing deadline, we observe that several commenters suggest that national laws which prohibit drug consumption are adequate substitutes for the testing requirement in this rule, and facilities in those nations should be exempted under 120.9. Given that the DOT testing panel also covers substances which are also illicit in the United States, as well as substances which are illicit barring a legitimate prescription, it is unclear why these commenters believe this presents an inconsistency, and FAA should not view them as such.
Impact on International Agreements
In the discussion of the NPRM, FAA notes that opposing commenters to the ANPRM argued that the FAA does not have the authority to promulgate the rule and cannot impose regulations on persons outside the territory of the U.S. where those regulations conflict with the laws of sovereign nations. We believe that FAA has satisfied this concern via the proposed exemption process.
FAA also notes that commenters opposed unilateral application of drug and alcohol testing regulations pointed to the Bilateral Aviation Safety Agreements (BASA) that the U.S. is a party to and expressed that the rulemaking violates components of existing BASAs. FAA acknowledges that “to the extent that BASA provisions concerning notice and consultation are applicable to the proposed regulations, the FAA intends to follow those provision” and critically that “commenters have not identified any specific BASAs that are in conflict with the statutory requirements this proposed rule would implement, nor is FAA aware of any at this time”.
We strongly agree with the FAA and commend its conclusion in this regard. Opponents of this proposal have long lodged empty complaints of impacts on international agreements in the hope of derailing efforts to conduct random drug and alcohol testing and foreign providers, while failing provide convincing evidence of any such conflicts. There has been no evidence presented which demonstrates that our international obligations are inherently in conflict with this proposal, and FAA should not permit these concerns to impact its rulemaking.
Part 121 Directly Employed
FAA states that “in addition, the FAA is considering how best to deter drug and alcohol misuse for any aircraft mechanic working on a part 121 aircraft regardless of how that mechanic is employed. Therefore, the FAA seeks comments as to whether the testing requirements in this proposed rule should be extended to foreign aircraft mechanics working directly for part 121 carriers”.
While we understand that the coverage of the rule for foreign aircraft mechanics working directly for part 121 carriers is not Congressionally directed, we encourage the FAA to adopt the testing requirement for these mechanics. From the Teamsters perspective, we note that in June of 2023, United Airlines, whose technicians we represent, opened its first foreign maintenance hangar at Rio de Janeiro International Airport in Brazil, where it directly employs mechanics. In part, the facility has absorbed maintenance work previously being performed by part 145 contract facilities in China. It is our understanding that other part 121 carriers have or are considering similar operations.
Given that the rule intends to eliminate an aviation maintenance ecosystem in which the ability to uphold single level of safety is predicated on the geographic location of the maintenance facility, it holds logically that all aircraft mechanics working on part 121 aircraft should be captured by this rulemaking. In the event that FAA does not adopt this requirement, the rule may create a perverse incentive to simply move maintenance from a contracted part 145 facility to an in-house facility where the airline can evade the regulatory costs associated with compliance.
Alternatives
The FAA proposes two alternatives to the NPRM. First, maintaining status quo, and second that the FAA would work through the International Civil Aviation Organization to create an international standard for drug and alcohol testing of maintenance personnel at repair stations. The FAA correctly identifies that both alternatives violate the Congressional mandate. The Teamsters concur, and strongly oppose both alternative proposals.
Conclusion
The Teamsters applaud the FAA, DOT, and the Biden Administration in the strongest terms for the publication of this long overdue and historic rulemaking. Encompassing the recommended changes discussed above, we urge the FAA to move expeditiously to promulgate a final rule which will promote a single level of safety in aviation maintenance and remove incentives to outsource maintenance rooted in the cost savings of regulatory avoidance. We look forward to working with the FAA on implementation, and on other matters impacting Teamsters Airline Division members.