Executive Summary: The Federal Aviation Administration (“FAA”) has recently proposed a potentially costly rule requiring repair stations located outside the United States to implement programs for drug and alcohol testing of employees who perform maintenance work on US-based aircraft in domestic and international service.

On December 7, 2023, the Federal Aviation Administration (“FAA”) published a Notice of Proposed Rulemaking (“NPRM”) entitled “Drug and Alcohol Testing of Certificated Repair Station Employees Located Outside of the United States.”  As the title suggests, the proposed rule would require repair stations located outside the United States that perform work on US-based aircraft to implement a program for drug and alcohol testing of employees who perform safety-sensitive maintenance functions.  The proposed rule—which has unsurprisingly been met with union support—would extend the requirements found in current regulations governing drug and alcohol testing programs to repair stations located abroad.

The current regulations contain comprehensive requirements as to the individuals to be tested, the substances to be tested for, the manner of testing, and the method of testing.  See 14 C.F.R. Part 120 and 49 C.F.R. Part 40.  Individuals who perform “safety-sensitive” functions—for example, mechanics who perform aircraft maintenance duties—are subject to continuous testing for prohibited drugs and prohibited levels of alcohol.  Such testing can be performed (among other times) before employment, upon reasonable suspicion, and at random.  The requirements for random testing are particularly extensive.  Each year, at least 50 percent of covered employees at a given carrier must undergo random drug testing, and at least 25 percent must undergo random alcohol testing.  Employees must be selected for random testing through a scientifically valid method that provides each covered employee with an equal chance of being tested each time selections are made.

Creating and maintaining programs that comply with those requirements outside of the United States could be a considerable cost for the carriers to whom they apply.  All carriers authorized to carry out scheduled domestic and international air service under 14 C.F.R. Part 121 and that maintain international outstations for repairing and maintaining aircraft would be affected.  The FAA currently estimates that the proposed rule will affect 977 repair stations in 65 foreign countries and estimates total costs to foreign repair stations in excess of $100 million.  Under the proposed rule, carriers that cannot meet the existing program requirements in their outstations—for example, because of different countries’ laws and regulations—may apply for a waiver.  Likewise, repair stations may apply for an exemption from the Department of Transportation.  However, it is incumbent on the stations to explore those options and apply for a waiver or exemption if they believe they meet the requisite criteria.