[Federal Register Volume 88, Number 234 (Thursday, December 7, 2023)]
[Proposed Rules]
[Pages 85137-85155]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-26394]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 120

[Docket No. FAA-2012-1058; Notice No. 24-05]
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: Notice of proposed rulemaking (NPRM).

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SUMMARY: This notice of proposed rulemaking (NPRM) would 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 in accordance 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.

DATES: Send comments on or before February 5, 2024.

ADDRESSES: Send comments identified by docket number FAA-2012-1058 
using any of the following methods:
    <bullet> Federal eRulemaking Portal: Go to https://www.regulations.gov and follow the online instructions for sending your 
comments electronically.
    <bullet> Mail: Send comments to Docket Operations, M-30; U.S. 
Department of Transportation (DOT), 1200 New Jersey Avenue SE, Room 
W12-140, West Building Ground Floor, Washington, DC 20590-0001.
    <bullet> Hand Delivery or Courier: Take comments to Docket 
Operations in Room W12-140 of the West Building Ground Floor at 1200 
New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays.
    <bullet> Fax: Fax comments to Docket Operations at 202-493-2251.
    Docket: Background documents or comments received may be read at 
https://www.regulations.gov at any time. Follow the online instructions 
for accessing the docket or go to the Docket Operations in Room W12-140 
of the West Building Ground Floor at 1200 New Jersey Avenue SE, 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Nancy Rodriguez-Brown, Office of 
Aerospace Medicine, Drug Abatement Division, Federal Aviation 
Administration, 800 Independence Avenue SW, Washington, DC 20591; 
telephone (202) 267-8442; email: <a href="/cdn-cgi/l/email-protection#690d1b1c0e080b081d0c040c071d290f0808470e061f"><span class="__cf_email__" data-cfemail="5b3f292e3c3a393a2f3e363e352f1b3d3a3a753c342d">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

List of Abbreviations and Acronyms Frequently Used in This Document

BASA--Bilateral Aviation Safety Agreement
ICAO--International Civil Aviation Organization

Table of Contents

I. Overview of Proposed Rule
II. Authority for This Rulemaking
III. Background
    A. History
    B. Legislative and Rulemaking Actions
    1. FAA Modernization and Reform Act of 2012
    2. Advance Notice of Proposed Rulemaking and Comment Response
    3. FAA Extension, Safety, and Security Act of 2016
IV. Discussion of the Proposal
    A. 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)
    B. Conforming Amendments To Facilitate Drug and Alcohol 
Procedures Outside

[[Page 85138]]

the United States (Sec. Sec.  120.123 and 120.227)
    C. Exemptions and Waivers to Drug and Alcohol Program 
Requirements (Sec. Sec.  120.5 and 120.9)
    D. Impact on International Agreements
V. Regulatory Notices and Analyses
    A. Regulatory Evaluation
    B. Regulatory Flexibility Determination
    C. International Trade Impact Assessment
    D. Unfunded Mandates Assessment
    E. Paperwork Reduction Act
    F. International Compatibility
    G. Environmental Analysis
VI. 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
VII. Additional Information
    A. Comments Invited
    B. Confidential Business Information
    C. Electronic Access and Filing

I. Overview of Proposed Rule

    This proposed rule, which the FAA is required by statute to 
promulgate, would implement a statutory mandate to require 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 a 
drug and alcohol testing program, consistent with the applicable laws 
of the country in which the repair station is located. This proposed 
rule would 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, which 
must cover its employees who perform maintenance functions on part 121 
air carrier aircraft. 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, it may 
apply for a waiver in accordance with proposed waiver authority. This 
rulemaking would affect approximately 977 part 145 repair stations in 
about 65 foreign countries.\1\
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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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    It is the responsibility of the employer (e.g., the part 121 
operator) to ensure that any person who performs safety-sensitive 
functions (e.g., maintenance or preventive maintenance), directly or by 
contract (including by subcontract at any tier), is subject to drug and 
alcohol testing. The FAA notes that part 145 repair stations located 
within the territory of the U.S. may elect to, but are not required to, 
implement a drug and alcohol testing program under 14 CFR part 120. 
When hiring by contract, if a part 145 domestic repair station does not 
have a testing program of its own, the part 121 operator must cover the 
repair station's safety-sensitive employees under its FAA drug and 
alcohol testing program.\2\ In this scenario, for purposes of drug and 
alcohol testing, the part 121 operator hires the repair station 
employees as covered employees \3\ and must apply all the regulatory 
requirements of the program to these employees (e.g., conduct a pre-
employment drug test, the records check, the training and educational 
information distribution requirements, and include the individuals in 
the random testing pool). Therefore, all employees performing a safety-
sensitive function within the U.S. are part of a drug and alcohol 
testing program, whether it is the part 121 operator's program or the 
repair station's program. As further discussed in this preamble, the 
FAA does not propose any changes to its current drug and alcohol 
testing requirements applicable to employees performing a safety-
sensitive function within the U.S. as part of this rulemaking. In 
addition, the FAA invites comments, with supporting data, on whether 
the drug and alcohol testing requirements in this proposed rule should 
be extended to safety sensitive maintenance employees of part 121 
certificate holders located outside the United States.
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    \2\ 14 CFR 120.1(b), 120.105(e), 120.215(a)(5).
    \3\ A covered employee is defined in Sec.  120.7(e) as an 
individual who performs, either directly or by contract, a safety-
sensitive function listed in Sec. Sec.  120.105 and 120.215 for an 
employer (as defined in Sec.  120.7(g)).
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II. Authority for This Rulemaking

    The FAA's authority to issue rules on aviation safety is in title 
49 of the United States Code (49 U.S.C.). Subtitle I, section 106 
describes the authority of the FAA Administrator. Subtitle VII, 
Aviation Programs, describes in more detail the scope of the agency'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 proposed 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 proposed 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 requires that the notice of proposed rulemaking be 
finalized.

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. The OST first 
published its drug testing procedure regulations in 1988 to require 
antidrug programs for certain transportation industries, including 
aviation.\4\ In that interim final rule, the OST adopted a modification 
of Department of Health and Human Services (HHS) guidance in new 49 CFR 
part 40 to require employers to conduct drug testing in accordance with 
the HHS's Mandatory Guidelines for Federal Workplace Programs.
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    \4\ Interim Final Rule, Procedures for Transportation Workplace 
Drug Testing Programs, 53 FR 47002 (Nov. 21, 1988).
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    Simultaneously, the FAA published a final rule setting forth 
regulations to certain entities to implement an anti-drug program for 
employees who perform sensitive safety or security related 
functions.\5\ These entities included: domestic and supplemental air 
carriers, commercial operators of large aircraft, air taxi and commuter

[[Page 85139]]

operators, certain commercial operators, certain contractors to these 
operators, and air traffic control facilities not operated by the FAA 
or the U.S. military. Before this final rule, the FAA's regulatory 
action pertaining to drug and alcohol use primarily focused not on 
testing programs, but on restrictions on commercial aviation personnel 
(e.g., regulations restricting crewmembers such as pilots, flight 
attendants, flight engineers, and flight navigators from acting as a 
crewmember within eight hours after drinking an alcoholic beverage, 
regulations restricting use of any drug that affects faculties contrary 
to safety \6\). The final rule required employers to comply with the 
OST's newly adopted 49 CFR part 40, Procedures for Transportation 
Workplace Drug Testing Programs (i.e., comply with the modified HHS 
guidance). However, rather than following the OST structure, which 
created a new part to promulgate the regulations, the FAA adopted a new 
appendix within 14 CFR part 121 and required compliance through various 
cross-references in 14 CFR parts 61, 63, 65, and 135.
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    \5\ Final Rule, Anti-Drug Program for Personnel Engaged in 
Specified Aviation Activities, 53 FR 47024 (Nov. 21, 1988).
    \6\ 14 CFR 91.11 (1986).
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    The 1988 FAA final rule applied only to domestic U.S. operators but 
did not expressly exclude employees located outside the territory of 
the U.S. from testing. In that final rule, the FAA considered the 
impact that the regulations would have on foreign laws and policy. 
Specific to foreign repair stations, individuals at foreign repair 
stations under contract to U.S. certificate holders would not be able 
to perform maintenance or preventive maintenance work on U.S.-
registered aircraft unless they participated in an anti-drug program. 
However, as set forth by then-part 121, appendix I, section XII, the 
rule would not be applicable in any situation where compliance would 
violate the domestic laws or policies of another country. Additionally, 
the section provided a longer effectivity date to aid the Department of 
Transportation (DOT) and foreign governments in reaching permanent 
resolutions to any identified conflict between the final rule and 
foreign law.
    The effectivity date for the final rule with respect to employees 
located outside the territory of the U.S. was extended several 
times,\7\ during which time Congress passed the Omnibus Transportation 
Employee Testing Act of 1991 (OTETA).\8\ Section 3 of OTETA added sec. 
614 to title VI of the Federal Aviation Act of 1958, which directed the 
Administrator to prescribe regulations to establish a program that 
requires both air carriers and foreign air carriers to conduct alcohol 
and controlled substance testing for certain persons. OTETA specified 
that the FAA should only establish requirements applicable to foreign 
air carriers consistent with the international obligations of the U.S. 
and take any laws and regulations of the foreign countries into 
account.
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    \7\ See Final Rule--Request for Comments, Anti-Drug Program for 
Personnel Engaged in Specified Aviation Activities; 54 FR 15148 
(Apr. 14, 1989); Final Rule--Extension of Compliance Date, Anti-Drug 
Program for Personnel Engaged in Specified Aviation Activities, 54 
FR 53282 (Dec. 27, 1989), Final Rule--Extension of Compliance Date, 
Anti-Drug Program for Personnel Engaged in Specified Aviation 
Activities, 56 FR 18978 (Apr. 24, 1991), Final Rule--Extension of 
Compliance Date, Anti-Drug Program for Personnel Engaged in 
Specified Aviation Activities, 57 FR 31275 (Jul. 14, 1992).
    \8\ 105 Stat. 917, Public Law 102-143 (Oct. 28, 1991).
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    Again, the OST and the FAA issued congruent final rules \9\ to 
implement the legislation, as applicable. Consistent with the 
legislation, the FAA final rule mandated that no employee located 
solely outside the territory of the U.S. shall be tested for illegal 
use of drugs under appendix I of part 121. An employer was required to 
remove such employees from the random testing pool while the employee 
solely performed functions in a foreign country, or while under 
contract outside the territory of the U.S. Concurrently, the FAA 
proposed and adopted appendix J within part 121 to supplement the 
existing regulations concerning alcohol misuse to ensure coordination 
between OST and FAA. The FAA had originally proposed \10\ that the 
alcohol testing rule would apply to direct employees of U.S. air 
carriers who performed safety-sensitive functions outside the U.S., 
subject to the laws and regulations of the country in which the testing 
would occur; however, in response to comments, the FAA ultimately 
decided not to require alcohol testing of any employees located outside 
the territory of the U.S., mirroring the drug testing requirements.\11\
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    \9\ DOT Final Rule, Procedures for Transportation Workplace Drug 
and Alcohol Testing Programs, 59 FR 7340 (Feb. 15, 1994). FAA Final 
Rule, Antidrug Program for Personnel Engaged in Specific Aviation 
Activities, 59 FR 42922 (Aug. 19, 1994).
    \10\ Notice of Proposed Rulemaking, Alcohol Misuse Prevention 
Program for Personnel Engaged in Specified Aviation Activities, 57 
FR 59458 (Dec. 15, 1992).
    \11\ Final Rule, Alcohol Misuse Prevention Program for Personnel 
Engaged in Specified Aviation Activities, 59 FR 7380 (Feb. 15, 
1994).
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    These drug and alcohol testing regulations remained static for 
almost two decades, despite occasional proposed rulemaking that did not 
come to fruition.\12\ These regulations were scattered throughout 14 
CFR.\13\ Most recently, in 2009, the FAA concluded that it would be 
best to streamline and clarify title 14 to pull the regulations 
existing at that time into one location. Therefore, FAA adopted new 
part 120 \14\ to set forth a better organizational structure for the 
drug and alcohol testing program regulations, which is where it is 
situated today. The FAA has engaged in additional rulemaking since that 
time to harmonize 14 CFR part 120 with OST's amendments to 49 CFR part 
40, as warranted (e.g., aligning prohibited drugs in 14 CFR part 120 
with those in 49 CFR part 40 \15\).
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    \12\ For example, in 1994, the FAA proposed to require foreign 
air carriers operating in the U.S. to implement the same testing 
required of domestic U.S. air carriers unless multilateral action 
was taken by ICAO to support international standards (59 FR 7420). 
However, in 1995, ICAO published the Manual on Prevention of 
Problematic Use of Psychoactive Substances in the Aviation 
Workplace, and the FAA subsequently withdrew this proposed rule in 
2000 (65 FR 2079).
    \13\ At that time, requirements for affected certificated airmen 
were located in parts 61, 63, 65, and 67. Requirements for affected 
air carriers and operators were located in parts 91, 121, and 135. 
Requirements for affected air traffic control facilities and air 
traffic controllers were located in subpart B of part 65. 
Requirements for repair stations certificated under part 145 and 
contractors who elected to have drug and alcohol testing programs 
were located in appendices I and J of part 121.
    \14\ Final Rule, Drug and Alcohol Testing Program, 74 FR 22649 
(May 14, 2009). Certain inadvertent errors were corrected in a 
subsequent final rule: Correction, Drug and Alcohol Testing Program, 
75 FR 3153 (Jan. 20, 2010).
    \15\ Final Rule, Conforming Amendments and Technical Corrections 
to Department Rules Implementing the Transportation Drug Testing 
Program).
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B. Legislative and Rulemaking Actions

1. FAA Modernization and Reform Act of 2012
    In 2012, Congress passed the FAA Modernization and Reform Act of 
2012.\16\ Section 308(d)(2) of the Act, implemented in 49 U.S.C. 44733, 
requires that the FAA Administrator publish a proposed rule requiring 
that 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. The FAA considers all maintenance functions 
performed on part 121 air carrier aircraft to be safety-sensitive under 
14 CFR 120.105 and 120.215.
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    \16\ Public Law 112-95 (Feb. 14, 2012).

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[[Page 85140]]

2. Advance Notice of Proposed Rulemaking and Comment Response
    In response to the congressional mandate, the FAA published an 
advanced notice of proposed rulemaking (ANPRM) on March 17, 2014.\17\ 
The comment period for the ANPRM closed July 17, 2014. The FAA received 
74 substantive comments of both support and opposition.
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    \17\ Advanced Notice of Proposed Rulemaking, Drug and Alcohol 
Testing of Certain Maintenance Provider Employees Located Outside of 
the United States, 79 FR 14621 (Mar. 17, 2014).
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    The FAA recognized that foreign countries and maintenance providers 
would have many concerns regarding drug and alcohol testing of certain 
maintenance personnel outside the territory of the U.S. Therefore, the 
FAA chose to issue an ANPRM to seek comments from the public and 
interested governments to help inform the development of a proposed 
rule. Specifically, the FAA recognized and inquired about the 
associated legal, practical, and cultural issues related to drug and 
alcohol testing. Additionally, the FAA asked various questions 
pertaining to foreign countries' laws and regulations, program elements 
of acceptable drug and alcohol testing, existing drug and alcohol 
testing program in other countries, and the scope of a proposed rule to 
include persons performing safety sensitive maintenance functions on 
aircraft operated by part 121 air carriers in accordance with part 43. 
The comment period for the ANPRM, originally set for 60 days, was 
extended an additional 60 days \18\ to allow time for commenters to 
analyze the ANPRM and prepare comments. Few comments provided specific 
information on the laws, cultural practices, and existence of drug and 
alcohol testing programs in foreign countries and instead presented 
general arguments in support and opposition.
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    \18\ ANPRM--Extension of Comment Period, 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).
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    The FAA received 74 comments: 40 generally supported the ANPRM; 29 
generally opposed the ANPRM; and five stated no position. The 40 
commenters who generally supported the proposal include 33 individuals, 
including certificated airmen (e.g., mechanics, flight instructors) and 
members of the flying public; three airline mechanics' unions; two 
aviation consulting firms; a consumer advocacy group; and an aircraft 
manufacturer. These commenters generally believed that maintenance 
personnel both within the U.S. and abroad should be treated the same 
with respect to drug and alcohol testing.
    Supporters additionally proposed that the FAA expand the rule 
beyond the scope of the statutory mandate to (1) make existing domestic 
regulations and those that would be extended internationally more 
stringent, and (2) include part 135 operators, part 91 operators, and 
fractional ownership operators (under part 91, subpart K) that use part 
145 repair station employees outside the territory of the U.S. in the 
testing requirements. These commenters also recommended expanding the 
testing requirement to employees of non-certificated repair stations 
outside the territory of the U.S., such as authorized persons who 
perform maintenance functions on aircraft operated by part 121 air 
carriers in accordance with 14 CFR 43.17.\19\ These supporters include 
the Teamsters Aviation Mechanic Coalition, Aircraft Mechanics Fraternal 
Association, and the Transportation Trades Department labor unions, who 
stated an expansion in scope would help improve the safety of 
maintenance functions that are outsourced to repair stations outside 
the territory of the U.S. Some commenters asserted that U.S.-based 
maintenance facilities are operating at an economic disadvantage as 
maintenance facilities abroad are not required to subject employees to 
drug and alcohol testing and, therefore, are essentially circumventing 
the associated costs to maintain a testing program.
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    \19\ Section 43.17 sets forth requirements for maintenance and 
preventative maintenance performed on U.S. aeronautical products by 
persons who hold valid Transport Canada Civil Aviation Maintenance 
Engineer licenses and Transport Canada Civil Aviation Approved 
Maintenance Organizations.
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    Outside of the five commenters that did not state an overt position 
on the proposal, the remaining comments were from nine foreign repair 
stations, four foreign governmental aviation organizations, four trade 
associations, four foreign trade associations, three airline 
manufacturers, three foreign airlines, one foreign aviation industry 
coalition, and one foreign government representative. These twenty-nine 
commenters generally opposed the ANPRM stating that the FAA threatens 
to overreach its authority and the proposal fails to recognize national 
sovereignty, existing Bilateral Aviation Safety Agreements (BASAs), the 
impact of ICAO initiatives,\20\ and the economic impact to the aviation 
industry. The FAA responds to the comments in the subsequent sections.
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    \20\ The FAA notes that as of the publication of the ANPRM, 
there were (and continue to be) a number of ICAO standards and 
recommended practices that address misuse of drugs and alcohol by 
aviation personnel; however, ICAO did not, and does not, require 
ICAO Member States to establish testing program to deter or detect 
inappropriate drug and alcohol use by aviation personnel with 
safety-sensitive responsibilities.
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National Sovereignty
    More than half of the opposing commenters cited failure to 
recognize each nation's sovereignty, stating that the FAA cannot impose 
regulations on persons outside the territory of the U.S. where those 
regulations conflict with the laws of sovereign nations. The Coalition 
of Industry Groups, which includes members from Aeronautical Repair 
Station Association (ARSA), Airlines for America (A4A), Regional 
Airline Association (RAA), International Air Transport Association 
(IATA), and other associations, supported requiring drug and alcohol 
testing programs outside the territory of the U.S. However, these 
aviation associations also emphasized that many countries have laws 
protecting the right to privacy in employment, as well as labor and 
data security laws, that could conflict with the proposed rule. These 
associations and commenters strongly suggested the FAA respect national 
sovereignty and ensure the proposal is consistent with applicable laws 
of the country in which the repair station is located. Commenters 
asserted that the FAA must not move forward with a proposal that would 
be applied without respect to national sovereignty.
FAA Response
    In evaluating the international implications of requiring part 145 
repair stations outside of the United States to implement drug and 
alcohol testing programs that comply with U.S. domestic testing 
standards throughout the global community, the FAA has become aware of 
the difficulties associated with the establishment of such programs. 
Specifically, any regulation that requires 14 CFR part 145 repair 
stations located outside the territory of the U.S. to implement drug or 
alcohol testing programs without respect to national sovereignty may be 
contrary to international law and might exceed generally recognized 
limits to extraterritorial jurisdiction. Further, section 308 of the 
FAA Modernization and Reform Act of 2012 directs that the proposed rule 
be ``consistent with the applicable laws of the country in which the 
repair station is located.'' Given these considerations, should the 
application of 49 CFR part 40 and 14 CFR part 120 wholly or in part be 
inconsistent with a country's laws or

[[Page 85141]]

regulations, the 14 CFR part 145 repair station could apply for an 
exemption from 49 CFR part 40 using the process described in 49 CFR 
40.7. Additionally, the repair station could request a waiver from 14 
CFR part 120 following the instructions proposed in new Sec.  120.9. As 
further discussed in section IV.C. of this preamble, the FAA has 
proposed language in 14 CFR 120.5 to clarify that the FAA will 
recognize any 49 CFR part 40 exemptions issued to an employer as 
meeting the procedures set forth in accordance with that part.
Bilateral Aviation Safety Agreements
    Most of the same commenters opposing unilateral application of drug 
and alcohol testing regulations pointed to the BASAs the U.S. is party 
to, (e.g., Switzerland, Canada, and the European Union). Commenters 
detailed that these BASAs include separate detailed agreements on 
mutual cooperation and technical assistance in the evaluation and 
acceptance of each country's approved maintenance organization systems 
(i.e., Maintenance Implementation Procedures agreements). The 
International Air Transport Association (IATA) commented that BASAs 
contribute to growth in aviation services by dramatically reducing 
regulatory compliance costs, making government oversight more 
efficient, and helping aerospace interests grow and compete globally. 
IATA recommended that the FAA focus on working with governments that 
impose equivalent, not duplicate, measures in its efforts to apply 
requirements for drug and alcohol testing programs outside the 
territory of the U.S.
    Additional commenters asserted that BASAs contain provisions 
requiring consultation before unilateral rulemaking, which has not yet 
happened in relation to this proposal. The commenters expressed that 
the FAA is obligated to ensure that current international agreements 
are honored, which would include such consultation. Comments from the 
UK Department for Transport, International Aviation Safety and 
Environment Division specifically stated that it is important for the 
FAA to consider consultations under Article 17 of the EU/U.S. BASA.\21\
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    \21\ In light of the withdrawal of the UK from the EU on January 
31, 2020, the UK is no longer part of the EU/U.S. BASA. 
Consultations between the U.S. and UK are now governed by Article IV 
of the 1995 UK/U.S. BASA.
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FAA Response
    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. 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. The FAA invites comments as to whether there are any BASAs that 
would conflict with the requirements of this proposed rule. Additional 
discussion regarding the FAA's international obligations may be found 
in section IV.D. of this preamble.
Safety Case
    Commenters also raised concerns regarding the lack of supporting 
evidence indicating that a safety case exists to justify the proposed 
rule. Commenters noted that there have been no documented aviation 
accidents in the U.S., the European Union, or Hong Kong in which drug 
use and/or alcohol misuse has been a direct cause or contributing 
factor. The Federal Office of Civil Aviation (FOCA)--Swiss 
Confederation stated that it has found no data that would support the 
existence of a safety case, and Switzerland and other European Aviation 
Safety Agency (EASA) Member States have safety management provisions in 
place for maintenance stations and a verifiable track record 
demonstrating that drug use and/or alcohol misuse does not currently 
represent a safety concern requiring further regulatory action. 
Commenters noted that according to the ICAO Accident Data Reporting 
system, between 1970 and 2012, there were no occurrence reports of drug 
or alcohol intake at maintenance facilities. Additionally, commenters 
pointed out that the FAA's own data demonstrates a low risk of drug use 
and/or alcohol misuse by maintenance personnel in the U.S.
FAA Response
    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. As previously discussed, the FAA received a 
minimum amount of 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 recognizes that the number of proven accidents and incidents 
involving drug use and/or alcohol misuse by maintenance personnel at 
foreign repair stations is unknown. Because the FAA does not have 
testing data or knowledge of existing testing programs in other 
countries, the FAA is unable to estimate the impact of the proposed 
rule in detecting and deterring drug use and/or alcohol misuse at this 
time. Therefore, the FAA cannot determine whether the rule would have 
any additional impact on safety or persons performing non-safety 
sensitive functions and has, accordingly, scoped this proposal to 
address the specific statutory mandates in 49 U.S.C. 44733(d)(2) and 49 
U.S.C. 44733. The FAA invites comments on this issue.
    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. Commenters are 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.
Financial and Operational Concerns
    While many of the commenters noted that it was difficult to 
estimate the cost of implementing drug and alcohol testing programs 
since any testing regime closely resembling U.S. requirements does not 
exist in most areas abroad, they also noted that it was likely that 
imposition of drug and alcohol testing requirements would have a 
disproportionate financial impact on small-to-medium sized aerospace 
companies. Some commenters, including A4A, Honeywell, and Taikoo 
(Xiamen) Landing Gear Services Co. Ltd. (TALSCO), among others, 
provided some level of estimated costs. Pratt & Whitney, for example, 
provided estimated costs for implementing and maintaining a drug and 
alcohol testing program, specifics of which may be found in the public 
docket, and stated those extensive costs are without justification if 
the FAA cannot quantify the added benefit to safety. The Coalition of 
Industry Groups noted its concern regarding the FAA's responsibility to 
ensure that the costs do not outweigh the benefits of any agency 
action. Additionally, Hong Kong Aero Engine Services Limited (HAESL) 
stated that extra costs will be incurred with no significant benefit.

[[Page 85142]]

FAA Response
    The FAA acknowledges the commenters' concerns. The FAA used a 
combination of the estimates submitted by commenters and U.S. data to 
estimate costs to all part 145 foreign repair stations developing a 
drug and alcohol testing program that meets U.S. requirements. However, 
not all estimates provided by commenters were used as some estimates 
were considered high compared to current practice and estimates 
obtained through industry outreach. The FAA also acknowledges that 
small-to-medium sized aerospace companies would be impacted by this 
rulemaking but does not have sufficient data to isolate the impact to 
small and medium size foreign repair stations. Additionally, although 
the FAA is unable to quantify benefits, this proposed rule would apply 
the FAA's primary tool for detecting and deterring substance abuse by 
safety-sensitive aviation employees throughout the international 
aviation community to enhance safety.
International Civil Aviation Organization (ICAO)
    A significant number of commenters noted that the appropriate 
vehicle to set standards to require drug and alcohol testing programs 
worldwide would be an ICAO initiative. Commenters pointed out that the 
Act mandates dealing with this issue under the auspices of an ICAO 
initiative.\22\ Many of these commenters, including the European 
Commission, Boeing Commercial Airplanes, the Embassy of the Netherlands 
to the U.S., Deutsche Lufthansa, and the Cargo Airline Association, 
among others, supported proceeding through the ICAO process. 
Additionally, commenters stated it is inappropriate for the FAA to take 
further action on this issue without first seeking common ground 
through ICAO. IATA stated that 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. Most commenters observed that the FAA's historical 
position regarding global drug and alcohol testing has been to address 
testing issues through ICAO.
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    \22\ The FAA surmises that the commenters were indicating Sec.  
308(d)(1) of the FAA Modernization and Reform Act of 2012, which 
states, ``The Secretary of State and the Secretary of 
Transportation, acting jointly, shall request the governments of 
foreign countries that are members of the International Civil 
Aviation Organization to establish international standards for 
alcohol and controlled substances testing of persons that perform 
safety-sensitive maintenance functions on commercial air carrier 
aircraft.'' In response to the Congressional mandate, the FAA notes 
that prior to the publication of the ANPRM, the Department of State, 
in conjunction with the FAA, sent a demarche request to countries 
with active part 145 repair stations requesting support in ICAO 
action. Of the 66 countries surveyed, 29 replied indicating support 
to establish international standards for effective drug and alcohol 
testing of all persons performing safety-sensitive functions on 
commercial air carrier aircraft within their country through ICAO 
initiatives.
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FAA Response
    The FAA supports the development of international standards and 
believes that they would help deter and detect drug and alcohol use 
that could compromise aviation safety. However, ICAO standards do not 
presently require ICAO Member States to establish (or direct industry 
to establish) testing programs to deter or detect drug use and alcohol 
misuse by aviation personnel in the performance of safety-sensitive 
functions. ICAO's Annex 1 sets forth international standards and 
recommended practices for license holders concerning their mental 
fitness and use of psychoactive substances, including drugs and 
alcohol. Annex 1 applies to flight crew members \23\ and other 
personnel and recommends the identification and removal of license 
holders from their safety-sensitive functions while under the influence 
of any psychoactive substance. Specifically, annex 1 section 1.2.7, Use 
of Psychoactive Substances, states that holders of licenses provided 
for in this Annex shall not exercise the privileges of their licenses 
and related ratings while under the influence of any psychoactive 
substance which might render them unable to safely and properly 
exercise these privileges and shall not engage in any problematic use 
of substances.\24\ ICAO provides further guidance about drug and 
alcohol testing in its Manual on Prevention of Problematic Use of 
Substances in the Aviation Workplace; the manual outlines suitable 
methods of identifying license holders who are under the influence, 
including through biochemical testing under certain circumstances. 
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 maintenance personnel. 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 (SARP) to the maximum extent practicable. 
However, the FAA proposes this rule in accordance with the Act's 
statutory mandate in an area within which there are no ICAO SARPs. 
Should ICAO adopt drug and alcohol program standards in the future the 
FAA will work to ensure its drug and alcohol programs are aligned with 
such SARPs.
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    \23\ ICAO defines a ``flight crew member'' as a licensed crew 
member charged with duties essential to the operation of an aircraft 
during a flight duty period. ICAO Annex 1, 1.1. Section 1.2(a) 
identifies flight crew as private pilots; commercial pilots; multi-
crew pilot; airline transport pilot; glider pilot; free balloon 
pilot; flight navigator; and flight engineer. Section 1.2(b) 
identifies other personnel as aircraft maintenance (technician/
engineer/mechanic), air traffic controllers, flight operations 
officers/flight dispatchers, and aeronautical station operators.
    \24\ Annex 1, 1.2.7.1, 1.2.7.2.
---------------------------------------------------------------------------

3. FAA Extension, Safety, and Security Act of 2016
    After the FAA published the ANPRM, as previously discussed, 
Congress enacted the FAA Extension, Safety, and Security Act of 2016 
(2016 Act),\25\ which reemphasized Congress' 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 
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.\26\ This NPRM is promulgated in accordance with 
such direction. The FAA notes that, while section 2112 (using the 
cross-referenced 49 U.S.C. 44733(d)(2)) specifies minimum content for 
the NPRM, it does not specify minimum content for the final rule, which 
may be changed from the NPRM in response to comments.
---------------------------------------------------------------------------

    \25\ Public Law 114-190 (Jul. 15, 2016).
    \26\ Section 2112(b).
---------------------------------------------------------------------------

IV. Discussion of the Proposal

A. 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)

    Currently, the drug and alcohol testing regulations in 14 CFR part 
120 require certain persons to establish a drug and alcohol program. 
These persons include all air carriers and operators certificated under 
14 CFR part 119 authorized to conduct operations under 14 CFR part 121 
or part 135; all air traffic control facilities not operated by the FAA 
or under contract to the U.S. military; all operators as defined in 14 
CFR 91.147; all individuals who perform a safety sensitive function 
provided in subpart E or F of 14 CFR

[[Page 85143]]

part 120; all 14 CFR part 145 certificate holders who perform safety-
sensitive functions and elect to implement a drug and alcohol testing 
program; and all contractors who elect to implement a drug and alcohol 
testing program.\27\ The FAA-mandated testing program consists of 
compliance with both the FAA's drug and alcohol testing program 
requirements, 14 CFR part 120 (as applicable), as well as the OST's 
procedural regulation, 49 CFR part 40.\28\
---------------------------------------------------------------------------

    \27\ 14 CFR 120.1.
    \28\ 14 CFR 120.5.
---------------------------------------------------------------------------

    Notably, 14 CFR part 120 restricts these activities from occurring 
outside of the U.S. Specifically, certain regulations bar (1) any part 
of the drug testing process from occurring outside the territory of the 
U.S., including specimen collection, laboratory processing, and Medical 
Review Officer (MRO) actions \29\ and (2) any testing for alcohol 
misuse while located outside the territory of the U.S.\30\ These 
regulations have restricted any drug and alcohol testing under 14 CFR 
part 120 from applicability outside the territory of the U.S. As it 
pertains to this rulemaking, these regulations are applicable only to 
domestic part 145 certificate holders who perform safety-sensitive 
functions within the territories of the U.S. and elect to implement a 
drug and alcohol testing program under this part.
---------------------------------------------------------------------------

    \29\ 14 CFR 120.123(a).
    \30\ 14 CFR 120.227(a).
---------------------------------------------------------------------------

    The U.S. Government has found that drug and alcohol testing 
programs for domestic aviation personnel who perform safety-sensitive 
functions on part 121 aircraft are necessary given the potential of 
drugs and alcohol to impair human performance. Safety-sensitive 
personnel are responsible for their own safety as well as the safety of 
countless others due to the inherent nature of their positions; 
therefore, the FAA has defined certain persons as those with safety-
sensitive functions, which includes individuals employed by a part 145 
repair station to perform aircraft maintenance duties \31\ for a part 
121 operator. In the absence of data to support another approach to 
drug and alcohol testing, the FAA would apply its primary tool for 
detecting and deterring substance abuse by aviation employees 
performing safety-sensitive maintenance functions throughout the 
international aviation community.
---------------------------------------------------------------------------

    \31\ 49 U.S.C. 44733 specifies ``aircraft maintenance,'' but 
does not include ``preventive maintenance.'' Safety-sensitive 
functions are defined in 14 CFR 120.7(n) as functions listed in 14 
CFR 120.105 and 120.215. The FAA notes that the list of safety-
sensitive functions found in 14 CFR 120.105 and 120.215 includes 
aircraft maintenance and preventive maintenance as separate duties. 
The FAA draws a clear distinction between maintenance and preventive 
maintenance (see: 14 CFR 1.1, expressly excluding preventive 
maintenance from the definition of maintenance and defining 
preventive maintenance as mutually exclusive from maintenance). 
Therefore, preventive maintenance is outside the scope of the 
mandate and is not covered in these proposed regulations.
---------------------------------------------------------------------------

    Title 49 U.S.C. 44733 requires the Administrator to propose a rule 
requiring that all employees responsible for safety sensitive 
maintenance functions on part 121 air carrier aircraft at part 145 
repair stations located outside the U.S.\32\ be subjected to an alcohol 
and controlled substances testing program determined acceptable by the 
Administrator. The FAA notes that 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. 45201, ``controlled 
substances'' should be intended to mean the FAA current definition of 
``drug'' as based off the definition of ``controlled substances'' 
provided by 49 U.S.C. 45201.\33\ 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.\34\
---------------------------------------------------------------------------

    \32\ Section 308 was promulgated in the U.S. Code as 49 U.S.C. 
44733, Inspection of repair stations located outside the United 
States. Under 49 U.S.C. chapter 447, ``United States'' is defined as 
the States of the United States, the District of Columbia, and the 
territories and possessions of the United States, including the 
territorial sea and the overlying airspace. 14 CFR 1.1 similarly 
defines United States, in a geographical sense, as the States, the 
District of Columbia, Puerto Rico, and the possessions including the 
territorial waters, and the airspace of those areas.
    \33\ This definition was set forth by Public Law 103-272, 
section 1(e) (Jul. 5, 1994).
    \34\ The FAA, and the legislation itself, recognize that 
countries may have different laws and regulations that set forth a 
different set of acceptable or prohibited drugs. Section IV.C. of 
this preamble discusses this issue in further detail.
---------------------------------------------------------------------------

    In 14 CFR 120.7, the FAA defines a ``prohibited drug'' as any of 
the drugs specified in 49 CFR part 40. OST defines ``drugs'' as 
marijuana, cocaine, amphetamines, phencyclidine (PCP), and opioids in 
49 CFR 40.3. These drugs are aligned with the HHS Mandatory Guidelines 
established by the HHS for Federal drug-testing programs for scientific 
testing issues, pursuant to OTETA, as previously discussed \35\ and 
updated as HHS updates their drug categories. Specifically, the HHS 
Mandatory Guidelines allow Federal agencies with drug-testing 
responsibilities to test for certain controlled substances set forth by 
the Controlled Substances Act (i.e., the drugs as defined in 49 CFR 
40.3), which is title II of the Comprehensive Drug Abuse Prevention and 
Control Act of 1970.\36\ Additionally, the FAA does not believe that 
Congress intended to expand the scope of testing beyond that required 
by current airmen and safety-sensitive positions. Should the FAA adopt 
a differing definition of ``controlled substances,'' part 145 repair 
stations outside the U.S. would be held to more stringent standards 
than those required for domestically situated current airmen and 
safety-sensitive positions. Neither the FAA, nor the OST, has a 
mechanism to regulate such standards at this time. Therefore, the FAA 
finds that the established term ``drug'' meets the intention of 
Congress in using the term ``controlled substances.''
---------------------------------------------------------------------------

    \35\ Public Law 102-143, title V, 105 Stat. 952 (Oct. 28, 1991). 
Specifically, OTETA required the DOT and agencies to look to the HHS 
Mandatory Guidelines for the scientific and technical guidelines 
regarding the drugs to be tested.
    \36\ Because this proposal would apply 49 CFR part 40, any type 
of testing allowed under part 40 would be permitted, including oral 
fluid testing once at least two labs are approved to test those 
specimens.
---------------------------------------------------------------------------

    The FAA, as discussed in section III.A. of this preamble, has long 
held that the standards set forth in 14 CFR part 120 and 49 CFR part 40 
are acceptable drug and alcohol testing programs for the aforementioned 
safety-sensitive functions. The FAA finds that requirements of part 145 
repair stations located outside the territory of the U.S. should mirror 
those inside the U.S. who elect to have a drug and alcohol program. 
Specifically, the FAA lacks the data or studies that would support a 
deviation from the current program requirements as applicable to those 
persons who perform safety-sensitive functions (i.e., 14 CFR part 120 
and 49 CFR part 40). Therefore, this proposal would require all 
employees of part 145 repair stations located outside the territory of 
the U.S. who perform safety-sensitive maintenance functions on part 121 
air carrier aircraft \37\ to be subject to

[[Page 85144]]

the current FAA-mandated testing programs. Accordingly, for purposes of 
49 U.S.C. 44733(d)(2), the Administrator finds that the current drug 
and alcohol testing scheme is acceptable in applicability to the 
affected part 145 repair stations outside the territory of the U.S.
---------------------------------------------------------------------------

    \37\ There are currently 977 part 145 repair stations located 
throughout 65 foreign countries that maintain an FAA-issued 
certificate. Many of these repair stations provide maintenance 
functions to part 121 air carrier aircraft.
---------------------------------------------------------------------------

    Therefore, the FAA proposes three revisions to 14 CFR 120.1, which 
outlines to whom part 120 applies. First, the FAA proposes to revise 
current 14 CFR 120.1(c) to 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. The FAA notes that there is no substantive change to the current 
applicability of domestic part 145 certificate holders. Next, the FAA 
proposes to expand applicability of 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 
by adding new paragraph (d).\38\ This, in turn, would redesignate 
current 14 CFR 120.1(d) as paragraph (e).
---------------------------------------------------------------------------

    \38\ The FAA notes that domestic repair stations may elect to 
implement a drug and alcohol testing program; however, foreign 
repair stations must implement a drug and alcohol testing program 
covering employees who perform maintenance on part 121 aircraft. If 
a domestic repair station does not elect to implement a drug and 
alcohol testing program, then the part 121 air carrier must cover 
the repair station's safety-sensitive employees under its FAA drug 
and alcohol testing program.
---------------------------------------------------------------------------

    Additionally, the FAA finds it necessary to provide specific 
instructions to affected part 145 repair stations outside the territory 
of the U.S., consistent with the requirements for other affected 
persons (i.e., the persons listed in 14 CFR 120.1), on how to obtain 
the necessary authority to implement a drug and alcohol testing 
program. Specifically, 14 CFR 120.117 and 120.225 set forth certain 
requirements specific to the person implementing a drug and alcohol 
testing program and do not currently include part 145 repair stations 
affected by this proposed rulemaking.
    The FAA, therefore, proposes three revisions to the charts set 
forth in 14 CFR 120.117(a) and (c), which would treat applicable part 
145 repair stations outside the territory of the U.S. similar to those 
domestic part 145 repair stations who choose to enact their own drug 
testing programs. First, 14 CFR 120.117(a) provides the documentation 
that a company must obtain from the FAA to implement a drug testing 
program: an Antidrug and Alcohol Misuse Prevention Program Operations 
Specification (A449), Letter of Authorization (A049), or Drug and 
Alcohol Testing Program Registration. Second, a revision to paragraph 
(a)(5) is necessary to specify 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. Finally, the FAA proposes to add new paragraph 
(a)(6) within the chart in 14 CFR 120.117. This paragraph would 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 A449 in their Operations 
Specification by contacting the repair station's Principal Maintenance 
Inspector. The A449 serves as the certification to comply with the drug 
and alcohol testing regulations, 49 CFR part 40 and 14 CFR part 120. In 
turn, current 14 CFR 120.117(a)(6) would be redesignated as paragraph 
(a)(7).
    Similarly, 14 CFR 120.117(c) prescribes certain requirements 
pertaining to the implementation of an Antidrug and Alcohol Misuse 
Prevention Program. The FAA proposes several revisions to 14 CFR 
120.117(c). First, a revision to paragraph (c)(1) is necessary to 
specify the requirements in that paragraph are applicable only to part 
145 certificate holders located inside the territory of the U.S. Next, 
the FAA proposes new paragraph (c)(2) to require the applicable repair 
station located outside the territory of the U.S. to (1) obtain an A449 
in their Operations Specification by contacting the repair station's 
Principal Maintenance Inspector, (2) implement the drug testing program 
no later than one year from the effective date of the regulation \39\ 
(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), 
and (3) meet the requirements of 14 CFR part 120, subpart E. In turn, 
current 14 CFR 120.117(c)(2) would be redesignated as paragraph (c)(3). 
Finally, the FAA proposes minor grammatical changes to the headings of 
the chart set forth by 14 CFR 120.117(c) and introductory text of 
paragraphs (c)(1) and (3) to conform with the heading revisions.
---------------------------------------------------------------------------

    \39\ The FAA finds that a one-year implementation date from the 
effective date of the legislation would give part 145 repair 
stations outside the territory of the U.S. sufficient time to 
identify laws that may contradict the regulations set forth in 14 
CFR part 120 and 49 CFR part 40 and provide the FAA and DOT 
sufficient time to process waivers and exemptions, respectively, 
addressing such barriers.
---------------------------------------------------------------------------

    Subpart F of 14 CFR part 120 sets forth the alcohol testing program 
requirements. The requirements pertaining to implementation largely 
mirror those set forth in subpart E, Drug Testing Program Requirements. 
The FAA, therefore, proposes similar amendments to the implementation 
charts set forth in 14 CFR 120.225(a) and (c) for the same reasons as 
previously discussed. Specifically, in 14 CFR 120.225(a), the FAA 
proposes to: first, revise 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.; second, add new 
paragraph (a)(6) to include the requirements for a part 145 repair 
station located outside the territory of the U.S. who performs safety-
sensitive maintenance functions on part 121 air carrier aircraft; and, 
third, redesignate current paragraph (a)(6) as new (a)(7). Likewise, in 
14 CFR 120.225(c), the FAA proposes to: first, revise paragraph (c)(1) 
as necessary to specify the requirements in that paragraph are 
applicable only to part 145 certificate holders located inside the 
territory of the U.S.; second, add new paragraph (c)(2) to require the 
applicable repair station located outside the territory of the U.S. to 
(1) obtain an A449 in their Operations Specification by contacting the 
repair station's Principal Maintenance Inspector, (2) implement the 
drug 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), and (3) meet the requirements of 14 CFR part 120, subpart 
E; and, third, redesignate current paragraph (c)(2) as (c)(3). Finally, 
the FAA proposes, first, minor grammatical changes to the headings of 
the chart set forth by 14 CFR 120.225(c) and introductory text of 
paragraphs (c)(1) and (3) to conform with the heading revisions and, 
second, to add the correct introductory text in paragraph (d), which is 
currently and inadvertently blank in the regulations.

B. Conforming Amendments To Facilitate Drug and Alcohol Procedures 
Outside the United States (Sec. Sec.  120.123 and 120.227)

    There are certain regulations in 14 CFR part 120 that effectively 
restrict any drug and alcohol programs from implementation outside of 
the U.S. Specifically, 14 CFR 120.123(a) bars any

[[Page 85145]]

part of the drug testing process from being conducted outside the 
territory of the U.S. and requires that employees assigned safety-
sensitive functions solely outside the territory of the U.S. to be 
removed from random testing pools, only to be returned once the covered 
employee has resumed functions wholly or partially in the U.S. 
Additionally, 14 CFR 120.123(b) states that the provisions of subpart E 
(Drug Testing Program Requirements) do not apply to any individual who 
performs a function pursuant to 14 CFR 120.105 by contract for an 
employer outside the territory of the U.S. Likewise, 14 CFR 120.227(a) 
bars covered employees from being tested for alcohol misuse while 
located outside the territory of the U.S. and mirrors the requirement 
of removal of a covered employee outside the territory of the U.S. from 
the random testing pool as with drug testing programs previously 
discussed. Additionally, 14 CFR 120.227(b) states that the provisions 
of subpart E (Alcohol Testing Program Requirements) do not apply to any 
individual who performs a safety sensitive function by contract for an 
employer outside the territory of the U.S.
    The FAA recognizes that these regulations serve as barriers to the 
implementation of a drug and alcohol testing program for a part 145 
repair station outside the territory of the U.S. Without conforming 
amendments to except these repair stations from 14 CFR 120.123 and 
120.227, it would be impossible to comply with the proposed regulations 
and the current regulations. Therefore, the FAA proposes to amend 
Sec. Sec.  120.123 and 120.227 to allow drug and alcohol testing 
processes to be conducted on employees of part 145 repair stations 
located outside the territory of the U.S. who perform safety-sensitive 
maintenance functions on part 121 air carrier aircraft. Specifically, 
this proposal would add 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 proposed 14 CFR 120.1(d) from 
applicability of those regulations restricting drug and alcohol testing 
outside the territory of the U.S.
    Currently, part 121 air carriers are responsible for ensuring that 
individuals who perform safety-sensitive maintenance functions within 
the territory of the U.S. are subject to testing. If a part 121 air 
carrier does not include a maintenance worker under their own testing 
program, it must ensure the worker is included in the FAA-mandated 
testing program of whomever the air carrier uses to perform safety-
sensitive maintenance functions (e.g., a part 145 repair station). In 
keeping with the congressional mandate, this proposal does not change 
the language of the regulation that removes part 121 employees located 
outside of the territory of the U.S. from the testing pool. Thus, part 
121 air carriers that directly perform their own maintenance outside 
the territory of the U.S. would not be required to test their employees 
for drugs and alcohol. If the part 121 air carrier decides to hire 
(either as an employee or an independent contractor) the foreign part 
145 repair station employees who work on its aircraft, then those 
employees would not be subject to testing because the part 121 air 
carrier is restricted from including into its testing pool employees 
who work solely outside the territory of the U.S.
    This approach is consistent with the statutory mandate, which did 
not address drug and alcohol testing of part 121 employees performing 
safety-sensitive maintenance functions outside the territory of the 
U.S. As previously discussed, the FAA lacks safety data and supporting 
research to support a proposal of drug and alcohol testing beyond that 
required by the legislation. However, the FAA is considering how best 
to deter drug use 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, with supporting data, as to whether 
the testing requirements in this proposed rule should be extended to 
foreign aircraft mechanics working directly for part 121 carriers.

C. Exemptions and Waivers to Drug and Alcohol Program Requirements 
(Sec. Sec.  120.5 and 120.9)

    The FAA recognizes that the different laws and regulations of some 
countries (including, but not limited to, privacy laws) may place 
limitations on drug and alcohol testing, prohibit it entirely, or place 
conditions on how testing would be done. In fact, 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 previously discussed 
in the responses to comments to the ANPRM, the FAA seeks to avoid 
situations whereby the regulations of the FAA are inconsistent with 
laws in other sovereign countries. As this proposal extends the drug 
and alcohol testing requirements beyond the territory of the U.S., the 
FAA realizes that the different laws of some countries, including, but 
not limited to, privacy laws, may place limitations on drug and alcohol 
testing or prohibit it entirely. For example, some countries may bar 
pre-employment drug testing, which is required by 14 CFR 120.109(a).
    Section 120.5 requires each employer having a drug and alcohol 
testing program under part 120 to ensure that all drug and alcohol 
testing conducted under that part complies with the procedures set 
forth in 49 CFR part 40. In evaluating the effects of the congressional 
mandate, the FAA has scrutinized the many challenges associated with 
the establishment and implementation of drug and alcohol testing 
programs outside the U.S. that comply with both the FAA regulations and 
the DOT's testing standards and procedures.\40\ In cases in which 
compliance with certain provisions of 49 CFR part 40 would not be 
attainable due to legal restrictions in the country where testing must 
occur, the part 145 repair station could apply for an exemption from 
part 40 using the process described in 49 CFR 40.7. Under Sec.  40.7, 
an exemption will only be granted 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. To 
acknowledge the potential need for foreign repair stations to obtain 
exemptions issued by the DOT from 49 CFR part 40, the FAA proposes 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.
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    \40\ 49 CFR 40.3 sets forth the terms used in part 40 and 
includes the definition for laboratory, which is any U.S. laboratory 
certified by HHS under the National Laboratory Certification Program 
as meeting the minimum standards of Subpart C of the HHS Mandatory 
Guidelines for Federal Workplace Drug Testing Programs; or, in the 
case of foreign laboratories, a laboratory approved for 
participation by DOT under part 40. Laboratories participating in 
the DOT drug testing program must comply with the requirements of 49 
CFR part 40 and with all applicable requirements of HHS in testing 
DOT specimens. Currently, a laboratory located in the U.S. is 
permitted to participate in DOT drug testing only if it is certified 
by HHS under the National Laboratory Certification Program (NLCP), 
or, in the case of a foreign laboratory, if it is approved for 
participation by the DOT with respect to part 40. The FAA recognizes 
that there are, first, no HHS certified laboratories in any of the 
foreign countries impacted by this rulemaking and, second, that 
there is a multitude of differently situated laboratories 
internationally. Therefore, a foreign laboratory would be required 
to seek approval in accordance with DOT procedures under 49 CFR part 
40.
---------------------------------------------------------------------------

    Traditionally, when a person cannot comply with an FAA regulation, 
the person may seek an exemption through

[[Page 85146]]

the procedures set forth by 14 CFR part 11. However, to streamline and 
efficiently address potential international legal conflicts, the FAA 
proposes to add waiver authority in new 14 CFR 120.9 that will allow 
repair stations located outside of the U.S. to request waivers from 
specific provisions of 14 CFR part 120. Specifically, proposed 14 CFR 
120.9(a) sets forth the waiver authority for those applicable repair 
stations that would be unable to comply with the requirements of 14 CFR 
part 120 due to the laws of the country within which the repair station 
is located. New paragraph (b) would set forth the information required 
by the Administrator to evaluate and process the waiver request.
    For example, the Administrator requires basic informational 
details; the specific section(s) of 14 CFR part 120 from which a waiver 
is sought; the reasons why granting the waiver would not contravene the 
purpose of 14 CFR part 120, as defined in Sec.  120.5; a copy of the 
law that is inconsistent with 14 CFR part 120; an explanation of how 
the law applies to affected employees and how it is inconsistent with 
14 CFR part 120; and a description of alternate means used to achieve 
the objectives of the part 120 provision from which the waiver is 
sought (or, if it is impossible to achieve the objective by alternative 
means, a justification of why it would be so). Finally, new 14 CFR 
120.9(c) would provide the manner in which the repair station should 
submit their waiver request.
    The FAA finds 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. The FAA notes that each process is intended to 
provide relief for its respective regulations. While the FAA requires 
compliance with 49 CFR part 40 through its regulations, the FAA does 
not have the authority to exempt a person from the regulations situated 
there, and person should not request a waiver from the FAA for relief 
from the DOT's regulations. If a person determines they cannot meet 
certain 49 CFR part 40 requirements (e.g., if their country's laws do 
not allow drug testing for one or more of the drugs required under 49 
CFR 40.85), the person should follow the process set forth by 49 CFR 
40.7; should the DOT grant the exemption, the FAA would recognize the 
exemption through proposed 14 CFR 120.5. Likewise, the waiver process 
set forth in new 14 CFR 120.9 provides an avenue by which a person may 
seek relief from FAA regulations that a person determines they cannot 
meet (e.g., if their country's laws do not allow pre-employment drug 
testing, which is required under 14 CFR 120.109(a)). As such, a person 
may have to appeal to both the DOT and FAA for an exemption and a 
waiver, respectively, if there are regulations in each part that a 
person seeks relief from.

D. Impact on International Agreements

    As noted in the discussion of comments to the ANPRM, commenters 
raised concerns regarding the impact of the legislation and enabling 
regulations on existing Bilateral Aviation Safety Agreements (BASA). 
However, 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. The FAA invites 
comments as to whether there are any BASAs that would conflict with the 
requirements of this proposed rule.

V. Regulatory Notices and Analyses

    Federal agencies consider impacts of regulatory actions under a 
variety of Executive orders and other requirements. First, Executive 
Order 12866 and Executive Order 13563, as amended by Executive Order 
14094 (``Modernizing Regulatory Review''), direct that each Federal 
agency may propose or adopt a regulation only upon a reasoned 
determination that the benefits of the intended regulation justify its 
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 as 
amended) prohibits agencies from setting standards that create 
unnecessary obstacles to the foreign commerce of the U.S. In developing 
U.S. standards, the Trade Agreements Act requires agencies to consider 
international standards and, where appropriate, that they be the basis 
of U.S. standards. 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 likely to result in the expenditure by State, 
local, or 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 
$177,000,000, using the most current (2022) Implicit Price Deflator for 
the Gross Domestic Product. This portion of the preamble summarizes the 
FAA's analysis of the economic impacts of this proposed rule. The FAA 
has provided a more detailed Regulatory Impact Analysis of this 
proposed rule in the docket of this rulemaking.
    In conducting these analyses, the FAA has determined that this 
proposed rule: is a ``significant regulatory action,'' as defined in 
section 3(f) of Executive Order 12866 because it raises legal or policy 
issues for which centralized review would meaningfully further the 
President's priorities or the principles set forth in Executive Order 
12866 as amended by Executive Order 14094; could have a significant 
economic impact on a substantial number of small entities; could create 
unnecessary obstacles to the foreign commerce of the U.S.; and would 
not impose an unfunded mandate on state, local, or tribal governments, 
or on the private sector by exceeding the threshold identified above. 
These analyses are summarized below.

A. Regulatory Evaluation

Total Benefits and Costs of This Rule
    In response to Congressional direction, the FAA proposes to require 
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 substance and alcohol testing program 
consistent with the applicable laws of the country in which the repair 
station is located. This proposed rule would require part 145 repair 
station located outside the territory of the U.S. to cover its 
employees performing 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), they 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 proposed waiver 
authority. Although there are no quantifiable benefits, this rulemaking 
would apply the FAA's existing primary tool for detecting and deterring 
substance abuse by safety-sensitive aviation employees, especially 
illegal drug use, throughout

[[Page 85147]]

the international aviation community to enhance aviation safety. The 
total cost, at seven percent present value, of this proposed rule 
equals the foreign repair station cost of $102.3 million, plus FAA cost 
of $6.3 million for a total of $108.7 million ($122.4 million at three 
percent present value) over five years.
Who is potentially affected by this rule?
    <bullet> Part 145 Certificated Foreign Repair Station outside the 
U.S. that performs safety-sensitive maintenance functions on part 121 
aircraft.
    <bullet> The FAA Office of Aerospace Medicine.
I. Costs of This Rule
    Part 145 certificated foreign repair stations outside the U.S. and 
the FAA would incur the cost of this proposed rule. The estimated cost 
of the proposed 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 would consist of developing a drug and alcohol testing 
program, training, testing safety sensitive maintenance employees for 
drugs and alcohol, and documentations. Total cost to foreign repair 
stations over five years, at seven percent present value, sums to 
$102.3 million with and annualized cost of $24.9 million. At three 
percent present value, estimated total cost to foreign repair stations 
is $115.2 million with an annualized cost of $25.1 million.

                                             Table 1--Cost to Part 145 Foreign Repair Stations Over 5 Years
                                                                      [$Millions] *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Program and
                                                             training                      Testing (drug                  Total cost (7%  Total cost (3%
                          Year                             development &     Training      and alcohol)   Annual reports        PV)             PV)
                                                            maintenance
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................            $0.5           $12.9            $0.0            $3.8           $16.1           $16.7
2.......................................................             0.4             2.2             9.0            14.1            22.5            24.3
3.......................................................             0.4             2.3             9.4            14.7            21.9            24.5
4.......................................................             0.4             2.4             9.7            15.3            21.2            24.7
5.......................................................             0.4             2.5            10.1            15.9            20.6            24.9
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................             2.2            22.2            38.3            63.9           102.3           115.2
--------------------------------------------------------------------------------------------------------------------------------------------------------
* 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 
$6.3 million with an annualized cost of $1.5 million. At three percent 
present value, total cost is $7.2 million with an annualized cost of 
$1.6 million.
    The FAA also invites commenters to submit data that would allow it 
to quantify the costs of extending this proposed rule to foreign 
aircraft mechanics employed directly by part 121 certificate holders.

II. 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 worker productivity. The FAA concludes that 
two specific sets of benefits may accrue from this rulemaking:
    <bullet> The prevention of potential injuries and fatalities and 
property losses resulting from accidents attributed to drug 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
    <bullet> 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 proposed rule in detecting and deterring drug use and/or alcohol 
misuse. To estimate safety and productivity benefits that would result 
from this proposed rule, the FAA would need estimates of the following:
    <bullet> Baseline risks attributable to drug use and/or alcohol 
misuse;
    <bullet> Effectiveness of the rule; and
    <bullet> Value of the reduction in risk of affected outcomes.
    The FAA invites comments on this issue. The FAA also invites 
commenters to submit data that would allow it to quantify the safety 
and productivity benefits of extending this proposed rule to foreign 
aircraft mechanics employed directly by part 121 certificate holders.
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 there have been no 
accidents or incidents related to safety-sensitive maintenance 
personnel using drugs or 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 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,

[[Page 85148]]

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 or alcohol usage 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 \41\ could be used to monetize and quantify 
estimates of the potential safety benefits associated with this 
rulemaking.
---------------------------------------------------------------------------

    \41\ 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 the International Civil 
Aviation Organization (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, that alternative may not 
meet Congressional direction due to the multitude of Member State 
equities considered in the implementation of an ICAO standard. 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.

B. Regulatory Flexibility Determination

    The Regulatory Flexibility Act (RFA) of 1980, Public Law 96-354, (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 is publishing this Initial Regulatory Flexibility Analysis 
(IRFA) to aid the public in commenting on the potential impacts to 
small entities from this proposal. The FAA invites interested parties 
to submit data and information regarding the potential economic impact 
that would result from the proposal. The FAA will consider comments 
when making a determination or when completing a Final Regulatory 
Flexibility Analysis.
    Under section 603(b) and (c) of the RFA, an IRFA must contain the 
following:
    (1) A description of the reasons why the action by the agency is 
being considered;
    (2) A succinct statement of the objective of, and legal basis for, 
the proposed rule;
    (3) A description of and, where feasible, an estimate of the number 
of small entities to which the proposed rule will apply;
    (4) 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;
    (5) An identification, to the extent practicable, of all relevant 
Federal rules that may duplicate, overlap, or conflict with the 
proposed rule; and
    (6) A description of any significant alternatives to the proposed 
rule that accomplish the stated objectives of applicable statutes and 
that minimize any significant economic impact of the proposed rule on 
small entities.
1.1 Reasons the Action Is Being Considered
    The proposed rule is in response to Congressional mandate that the 
FAA propose a rule to establish drug and alcohol testing program 
requirements for part 145 repair stations outside the territory of the 
United States that provide safety-sensitive maintenance functions for 
part 121 air carriers acceptable to the FAA Administrator.
1.2 Objectives and Legal Basis of the Proposed Rule
    This proposed rule would require 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. would 
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 proposed 
waiver authority.
    The FAA's authority to issue rules on aviation safety is 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 proposed rule is further promulgated under 
section 308 of the FAA Modernization and Reform Act of 2012 (the Act) 
(49 U.S.C. 44733) and section 2112 of the FAA Extension, Safety, and 
Security Act of 2016, which directed publication of a notice of 
proposed rulemaking in accordance with 49 U.S.C. 44733.
1.3 All Federal Rules That May Duplicate, Overlap, or Conflict
    There are no relevant Federal rules that may duplicate, overlap, or 
conflict with the proposed rule.
1.4 Description and Estimate of the Number of Small Entities
    This proposed rule would 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 act defines 
a small business as ``a business entity

[[Page 85149]]

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.'' \42\ 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 would apply.
---------------------------------------------------------------------------

    \42\ 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 (2022) established size standards for various types of 
economic activities, or industries, under the North American Industry 
Classification System (NAICS).\43\ These size standards generally 
define small businesses based on the number of employees or annual 
receipts. Table 2 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.
---------------------------------------------------------------------------

    \43\ Small Business Administration (SBA). 2019. Table of Size 
Standards. Effective August 12, 2019. https://www.sba.gov/document/support--table-size-standards.

 Table 2--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 (2022).
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.\44\ 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.\45\ The FAA seeks comment and requests data 
on how this rulemaking will affect part 145 foreign repair stations.
---------------------------------------------------------------------------

    \44\ 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).
    \45\ The calculation is as follows: 977*.9328 = 911.31. This 
estimate is rounded up to get 912.
---------------------------------------------------------------------------

1.5 Projected Reporting, Recordkeeping, and Other Compliance 
Requirements
    Based on the total nominal cost of the rule to repair stations, 
$126.5 million, the cost per repair station is $129,473.\46\ 
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 $118.1 million over five years. Table 3 shows the estimated 
annualized compliance costs by category.
---------------------------------------------------------------------------

    \46\ $126,495,150/977 = $129,473.03.

         Table 3--Average Cost of Compliance and Small Entities
------------------------------------------------------------------------
                                                              Average
                                             Number of      annualized
                Category                  small entities     cost per
                                                          repair station
------------------------------------------------------------------------
Program and Training Development &                   912         $444.69
 Maintenance Cost.......................
Training................................             912        3,689.98
Testing Cost............................             912        6,366.88
Paperwork...............................             912       10,624.49
------------------------------------------------------------------------
\1\ Based on a baseline of existing practices and using a 7% discount
  rate.

1.6 Significant 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 the International Civil 
Aviation Organization (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

[[Page 85150]]

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 
proposed rule and determined that it ensures the safety of the American 
public while noting some countries and foreign trade associations, in 
their comments, voiced their opposition to an FAA drug and alcohol 
testing standard for foreign repair stations. In comments to the ANPRM, 
as discussed in section III.B.2. of this preamble, these countries 
cited failure of the legislation to recognize each nation's sovereignty 
and cited that the International Civil Aviation Organization (ICAO) 
would be the appropriate vehicle to set worldwide standards. As a 
result, this rulemaking could create an obstacle or retaliation to 
foreign commerce. The FAA invites comments on this issue.

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 $177.0 million in lieu of $100 
million. This proposed 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 has submitted these proposed 
information collection amendments to OMB for its review.
    Summary: Under Sec. Sec.  120.1, 120.123 and 120.227, the proposed 
rule would extend the drug and alcohol testing regulations beyond the 
territory of the U.S. The proposal would require all employees of part 
145 repair stations located outside of the U.S. who perform maintenance 
on part 121 air carrier aircraft to be subject to a drug and alcohol 
testing program. Of the approximately 977 part 145 repair stations 
located throughout 66 foreign countries, it is likely that all of these 
repair stations would continue to perform maintenance on part 121 air 
carrier aircraft. If the repair stations continue to perform 
maintenance for 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.
    Use: The information would 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 would 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 would use the 
annual MIS data reported to calculate the annual random drug and 
alcohol testing rates in the aviation industry.
    Respondents (including number of): There are currently 977 part 145 
certificated repair stations located outside the territory of the U.S.
    Frequency: Part 145 repair stations located outside the territory 
of the U.S. would provide information for program certification only 
once; however, these repair stations would also incur annual 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.
---------------------------------------------------------------------------

    \47\ 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.
    \48\ Office and Administrative Support Workers, All Other (SOC 
43-9119) NAICS 481000--Air Transportation, May 2020; Mean Hourly 
wage https://www.bls.gov/oes/2020/may/oes439199.htm: Includes Fringe 
Benefits.
---------------------------------------------------------------------------

Annual Burden Estimate
1. Burden for Program Certification and Annual Program Maintenance

----------------------------------------------------------------------------------------------------------------
                                                 Number of        Hours per
                Documentation                 repair stations   repair station    Hourly wage       Total cost
----------------------------------------------------------------------------------------------------------------
Antidrug and Alcohol Misuse Prevention                   977        \47\ 16.2      \48\ $26.90         $425,757
 Program Operations Specification...........
----------------------------------------------------------------------------------------------------------------


[[Page 85151]]

2. Burden for Annual Test Data

----------------------------------------------------------------------------------------------------------------
                                    \49\ Total       Time per                                     Average yearly
          Documentation               records     record (hours)    Hourly wage     Total cost       cost \50\
----------------------------------------------------------------------------------------------------------------
Training records................         656,720            0.25     \51\ $34.47      $5,659,285      $1,131,857
Records related to the alcohol           335,354             5.0           34.47      57,798,262      11,559,652
 and drug collection process,
 test results, refusal to test,
 employee dispute records, SAP
 reports, follow-up tests.......
                                 -------------------------------------------------------------------------------
    Total.......................         992,074             N/A             N/A      63,457,547      12,691,509
----------------------------------------------------------------------------------------------------------------

    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 four percent growth rate over five years. 
Accounting for these rates results in an initial first year total of 
159,205 mechanics and 31,842 supervisors. This is a total of 191,047 
employees. In the first year all mechanics and supervisors will take 
anti-drug and alcohol training. These are two separate trainings. This 
results in 191,047 records for anti-drug training and 191,047 for 
alcohol training. In addition, supervisors will have to take an 
additional supervisor reasonable cause/reasonable suspicion 
determinations training for drugs and alcohol. This adds another 63,684 
records since they are two separate trainings as well.\52\ Therefore, 
in the first year, there will be a total of 445,778 records.\53\
---------------------------------------------------------------------------

    \49\ Estimated number of records from 2018 to 2022.
    \50\ Average yearly cost is calculated by dividing total cost by 
five years.
    \51\ Information and Records Clerks (SOC 43-4000) NAICS 481000--
Air Transportation, May 2020: Mean Hourly Wage https://www.bls.gov/oes/2020/may/naics3_481000.htm#43-0000: Includes Fringe Benefits.
    \52\ 31,842*2 = 63,684.
    \53\ 191,047 + 191,047 + 63,684 = 445,778.
---------------------------------------------------------------------------

    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 6,368 mechanics and 1,274 supervisors for a total of 7,642 records. 
The 1,274 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 31,842 supervisors taking the 
recurring trainings. Thus, the records for drug training in year two is 
40,758.\54\ 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 8,916 records. There is no recurrent 
alcohol training for supervisors. Therefore, in year two the total 
records are 49,674.\55\
---------------------------------------------------------------------------

    \54\ 7,642 + 1,274 + 31,842 = 40,758.
    \55\ 40,758 + 8,916 = 49,674.
---------------------------------------------------------------------------

    The same calculation for year two is repeated for years three 
through five. There are 51,662 records in year three, 53,729 in year 
four, and 55,877 in year five. This results in a total of 656,720 total 
training records over the five years.\56\
---------------------------------------------------------------------------

    \56\ 445,778 + 49,674 + 51,662 + 53,729 + 55,877 = 656,720.
---------------------------------------------------------------------------

    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 247,521.\57\
---------------------------------------------------------------------------

    \57\ This is broken down by category as 32,452 pre-employment 
drug tests, 210,932 random drug tests, 4,137 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, reasonable cause, return to duty, and follow-up tests. The 
total alcohol tests over the five years is 87,833.\58\ Taking the sum 
of drug and alcohol tests results in 335,354 records related to alcohol 
and drug collection.
---------------------------------------------------------------------------

    \58\ This is broken down by category as 84,373 random drug tests 
and 3,460 post-accident, reasonable cause, return to duty, and 
follow-up tests.
---------------------------------------------------------------------------

    The agency is soliciting comments to--
    (1) Evaluate whether the proposed information requirement is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of collecting information on those who are 
to respond, including by using appropriate automated, electronic, 
mechanical, or other technological collection techniques or other forms 
of information technology.
    Individuals and organizations may send comments on the information 
collection requirement to the address listed in the ADDRESSES section 
at the beginning of this preamble by February 5, 2024. Comments also 
should be submitted to the Office of Management and Budget, Office of 
Information and Regulatory Affairs, Attention: Desk Officer for FAA, 
New Executive Office Building, Room 10202, 725 17th Street NW, 
Washington, DC 20053.

F. International Compatibility

    In keeping with U.S. obligations under the Convention on 
International Civil Aviation, it is FAA policy to conform to 
International Civil Aviation Organization (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

[[Page 85152]]

from preparation of an environmental assessment or environmental impact 
statement under the National Environmental Policy Act 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.

VI. Executive Order Determinations

A. Executive Order 13132, Federalism

    The FAA has analyzed this proposed rule under the principles and 
criteria of Executive Order 13132, Federalism. The agency has 
determined that this action would 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, would not have 
federalism implications.

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

    The FAA analyzed this proposed rule under Executive Order 13211, 
Actions Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use. The agency has determined that it would not be a 
``significant energy action'' under the Executive order and would not 
be 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 to reduce, eliminate, or prevent 
unnecessary differences in regulatory requirements. The FAA has 
analyzed this action under the policies and agency responsibilities of 
Executive Order 13609 and has determined that this action could create 
differences in international regulatory requirements. The FAA 
acknowledges that the FAA may need to revisit certain international 
agreements, as discussed in section IV.D and invites comments on this 
issue.

VII. Additional Information

A. Comments Invited

    The FAA invites interested persons to participate in this 
rulemaking by submitting written comments, data, or views. The FAA also 
invites comments relating to the economic, environmental, energy, or 
federalism impacts that might result from adopting the proposals in 
this document. The most helpful comments reference a specific portion 
of the proposal, explain the reason for any recommended change, and 
include supporting data. To ensure the docket does not contain 
duplicate comments, commenters should submit only one time if comments 
are filed electronically or commenters should send only one copy of 
written comments if comments are filed in writing.
    The FAA will file in the docket all comments it receives, as well 
as a report summarizing each substantive public contact with FAA 
personnel concerning this proposed rulemaking. Before acting on this 
proposal, the FAA will consider all comments it receives on or before 
the closing date for comments. The FAA will consider comments filed 
after the comment period has closed if it is possible to do so without 
incurring expense or delay. The FAA may change this proposal in light 
of the comments it receives.
    Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments 
from the public to better inform its rulemaking process. DOT posts 
these comments, without edit, including any personal information the 
commenter provides, to https://www.regulations.gov, as described in the 
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
https://www.dot.gov/privacy.

B. Confidential Business Information

    Confidential Business Information (CBI) is commercial or financial 
information that is both customarily and actually treated as private by 
its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), 
CBI is exempt from public disclosure. If your comments responsive to 
this NPRM contain commercial or financial information that is 
customarily treated as private, that you actually treat as private, and 
that is relevant or responsive to this NPRM, it is important that you 
clearly designate the submitted comments as CBI. Please mark each page 
of your submission containing CBI as ``PROPIN.'' The FAA will treat 
such marked submissions as confidential under the FOIA, and they will 
not be placed in the public docket of this NPRM. Submissions containing 
CBI should be sent to the person in the FOR FURTHER INFORMATION CONTACT 
section of this document. Any commentary that the FAA receives which is 
not specifically designated as CBI will be placed in the public docket 
for this rulemaking.

C. Electronic Access and Filing

    A copy of this NPRM, all comments received, any 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 proposed 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 at 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 proposed rule, 
including economic analyses and technical reports, may be accessed in 
the electronic docket for this rulemaking.

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 Proposed Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration proposes to amend 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), 106(g), 40101-40103, 40113, 40120, 
41706, 41721, 44106, 44701, 44702, 44703, 44709, 44710, 44711, 
44733, 45101-45105, 46105, 46306.

0
2. Amend Sec.  120.1 by:
0
a. Revising paragraph (c);
0
b. Redesignating paragraph (d) as paragraph (e);
0
c. Adding new paragraph (d).
    The revision and addition read as follows:

[[Page 85153]]

Sec.  120.1  Applicability.

* * * * *
    (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) All part 145 certificate holders outside the territory of the 
United States who perform safety-sensitive maintenance functions on 
part 121 air carrier aircraft.
0
3. 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
4. Add Sec.  120.9 to read as follows:


Sec.  120.9  Waivers for Part 145 Repair Stations Outside the Territory 
of the United States.

    (a) A part 145 repair station 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 the subpart 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 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.
    (c) Each petition for a waiver must be submitted to the Federal 
Aviation Administration, Office of Aerospace Medicine, Drug Abatement 
Division (AAM-800), 800 Independence Avenue SW, Washington, DC 20591.
0
5. 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);
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 repair station located    Obtain an Antidrug and Alcohol
 outside the territory of the United      Misuse Prevention Program
 States whose employees perform safety-   Operations Specification by
 sensitive maintenance functions on       contacting your Principal
 part 121 air carrier aircraft.           Maintenance Inspector.
 
                              * * * * * * *
------------------------------------------------------------------------

* * * * *
    (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,
                                         (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 parts 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.

[[Page 85154]]

 
(2) A part 145 repair station located    (i) Obtain an Antidrug and
 outside the territory of the United      Alcohol Misuse Prevention
 States whose employees perform           Program Operations
 maintenance functions on part 121 air    Specification by contacting
 carrier aircraft.                        your Principal Maintenance
                                          Inspector.
                                         (ii) Implement a drug testing
                                          program acceptable to the
                                          Administrator no later than
                                          one year from [EFFECTIVE DATE
                                          OF REGULATION], or if company
                                          operations begin more than one
                                          year after [EFFECTIVE DATE OF
                                          REGULATION], implement a drug
                                          testing program acceptable to
                                          the Administrator no later
                                          than the date you start
                                          operations, and
                                         (iii) Meet the requirements of
                                          this subpart in a manner
                                          acceptable to the
                                          Administrator.
(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 parts 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
6. 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
7. 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);
0
d. Revising paragraph (c); and
0
e. Revising paragraphs (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.
(6) A part 145 repair station located    Obtain an Antidrug and Alcohol
 outside the territory of the United      Misuse Prevention Program
 States who performs safety-sensitive     Operations Specification by
 maintenance functions on part 121 air    contacting your Principal
 carrier aircraft.                        Maintenance Inspector.
 
                              * * * * * * *
------------------------------------------------------------------------

* * * * *
    (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,

[[Page 85155]]

 
                                         (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) Are a part 145 repair station        (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.                        your Principal Maintenance
                                          Inspector.
                                         (ii) Implement an alcohol
                                          testing program acceptable the
                                          Administrator no later than
                                          one year from [EFFECTIVE DATE
                                          OF REGULATION], or if company
                                          operations begin more than one
                                          year after [EFFECTIVE DATE OF
                                          REGULATION], implement an
                                          alcohol testing program
                                          acceptable to the
                                          Administrator no later than
                                          the date you start operations,
                                          and
                                         (iii) Meet the requirements of
                                          this subpart in a manner
                                          acceptable to the
                                          Administrator.
(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 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 parts 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.
------------------------------------------------------------------------

    (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
8. 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 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 in Washington, DC.
Susan E. Northrup,
Federal Air Surgeon.
[FR Doc. 2023-26394 Filed 12-6-23; 8:45 am]
BILLING CODE 4910-13-P


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