FAA issues extraterritorial drug testing rule- SAFETY, SALARY, and Global Security at issue
NPRM bears no relationship to safety data, is driven by TWU salary goals and may lead to sovereigns ignoring the civil aircraft boycott.
The FAA has issued an NPRN entitled, Drug and Alcohol Testing of Certificated Repair Station Employees Located Outside of the United States and the next section of this post includes some telling, surprisingly honest, quotes from that proposal. Additionally, SimpleFlying (attached below) has provided some excellent insight into the NPRM and its consequences. JDA Aviation Technology Solutions has successfully advised applicants for Part 145 authority and has worked with several maintenance (MX) organizations to assure that they meet the FAA and industry standards. While this suggests a bias, this admission also sets a level of experience and credibility.
Unions have been attacking Foreign Repair Stations (FRS) for decades and their tactics have included multiple regulatory and statutory accusations. Some data points to set this context:
- In the late 1980s, the labor claim resulted in a request by the Chairman of the House Aviation Appropriations Subcommittee to lead a delegation of his fellow members to a facility that repaired and maintained the core of one commercial aviation’s most complex systems- a very large turbine which has literally thousands of precisely engineered parts. The Members toured the facility in a rural part of Scotland, saw maintenance technicians (AMTs) who more resembled brain surgeons than your typical auto mechanic. They met the Dean of the nearby community college who explained that the admission process had a 3 year waiting list and that the graduation standards were levels of magnitude more demanding than other similar trades (i.e. computer, medical and electrical). The Representatives from Illinois, California and Hawai’i left askance about the stories they had been told.
- Contemporaneously, allegations were made about a P145 station located in Mexico. Headquarters sent its lead airworthiness expert to investigate it based on complaints that its work was substandard. Before entering the building, the FAA team spent hours reading all of the manuals (even beyond those required), assessing their internal QA/QC steps and personnel, quizzing all levels of the management team on the details of the all aspects of the operations (FAA had the pile of books, but it was not an open book test for the certificate holder) and then a lengthy station-by-station inspection of the work line. The FAA lead, thinking that he was talking to his #2, said that this is a cleaner operation than the OEM’s P145. In the debriefing, the P145 manager explained that the secret to their success was the local wage scale: he could pay initial hires wages 2 to 3 times higher than prevailing. That salary allowed him to add staffing to steps within the work cards, providing additional quality to their repairs. Finally, he mentioned that his salary curve was steeper than local or US standards and consequently, his retention rate was spectacular. His team was more skilled, more knowledgeable, and more dedicated than his workforce at previous P145s in the US.
- The trips to the Hill have sought termination of FRSs, requirement that the FAA find that the overseas facility was “needed,” continuous accusations of substandard work and the most constant refrain “lower wages = lower safety.” Drug testing as a critique has gained traction with Congress even though, as the FAA admits, there is no hard evidence/data provided.
- It is recognized that these two examples do not prove that all FRSs are above reproach, but equally the TWU’s unsubstantiated claims do not prove a universal presumption of drug use are credible.
One curious aspect to this labor war (“belabored”?) is that the Transport Workers Union (TWU) is claiming that its international brothers and sisters are SAFETY RISKS. The TWU is a member of the International Transport Workers’ Federation (ITF). The ITF is a democratic, affiliate-led federation recognized as the world’s leading transport authority. It connects more than 700 affiliated trade unions from 150 countries to secure rights, equality, and justice for workers globally. SOLIDARITY stops at the borders?
The NPRM and more clearly the SimpleFlying suggest that the real issue is not SAFETY, the absence of any date supports that intimation. The TWU makes the following lower SALARY = lower SAFETY or even more honestly repairs at DOMESTIC P145s are more costly and THEREFORE airlines use the cheaper FRSs.
The next iteration of the union assertion is that the absence of drug testing overseas MUST MEAN that the safety sensitive personnel are under influence while working and THUS must be producing unairworthy repairs. Again, particularly now that the scourge of FRSs has increased, should not there be examples of dangerous work? The FAA admitted that it has none.
Previous NPRMs have been met with strong statements that the PRIVACY LAWS OF THE SOVEREIGN NATIONS WOULD PREVENT THE EXTRATERRITORIAL RULE APPLICATION. FAA ANSWER: FRS file an exemption. Is it fair to assume that if FRS #12ABC files such a request, the TWU will assert that it has piles of anonymous safety violations? In any event, the FAA review of the exemption request would be sufficiently slow that the carrier seeking the repair at FRS #12RBC will go elsewhere???? REALLY that’s an honest solution.
SOVERIGNs do not appreciate the US telling them that their safety environment is deficient. The FAA’s friends around the globe are not as strong as they once were. Imagine the head of a sophisticated CAA receiving a message that the US Congress, a body not currently held in high regard by peer democracies, has required that the FRSs located in his/her country are now subject to DRUG AND ALCOHOL TESTING. Your repair stations are frequently inspected by your staff, are subject to frequent review by the US Carriers that have requested their FRS help and are visited by FAA personnel on a regular basis. The head of the national CAA with direct responsibility over its citizens ASKS, “on what basis is this invasion of my sovereignty JUSTIFIED”? The NPRM admits it has no such proof, but the TWU, the organization affiliated with your domestic union (ITF1), says so!!! IT IS EASY TO IMAGINE THE CAA HEAD’S ANGER AND WORSE, OFFENSE AT THE US CONGRESS’ ARROGANCE. Now imagine an unrelated conversation between FAA Administrator Whitaker and our offended CAA leader, “Please stop your FRS from providing repairs to a Russian civil aircraft. GREAT SECURITY IMPACT from this NPRM. Bets on whether comity between the US FAA and Foreign CAA results in the US’s #1 international goal? See the hypothetical inspection.
It is hard to conceive that the White House (of which OMB and OIRA are part), the Defense Department and the State Department concur that an unjustified drug testing rule should be finalized and thus create reasons FOR ALLIES TO BREACH THE RUSSIAN BOYCOTT IN RESPONSE TO THE INVASION OF THE UKRAINE!!!
SELECTED QUOTES FROM THE NPRM
…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…
…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…
…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…
…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 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…
…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…
…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…
…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…
Proposed FAA Drug Testing For Foreign Mechanics Receives Backing
PUBLISHED 16 HOURS AGO
The proposal would impact more than 970 maintenance stations in 65 countries around the world.
SUMMARY
- The FAA is pushing for drug and alcohol testing for mechanics at foreign maintenance stations, POTENTIALLY COSTING US AIRLINES $100 MILLION OVER FIVE YEARS, which could lead to higher airfares.
- The proposal may face CHALLENGES DUE TO VARYING PRIVACY AND EMPLOYMENT LAWS IN DIFFERENT COUNTRIES, but airlines can apply for waivers in countries where testing is prohibited.
- The Transport Workers Union supports the testing, as it believes it will close a safety gap and could CREATE MORE MECHANIC JOBS IN THE US, which have been declining due to an increase in maintenance work being done abroad.
The US Federal Aviation Administration (FAA) is keen to bring in drug and alcohol testing for mechanics servicing US airlines at aircraft maintenance stations in foreign countries. As reported by Reuters, if introduced, the measure would affect more than 970 stations in 65 countries across the world.
A costly and complex proposal
The drug and alcohol testing would be applicable to all employees performing safety-sensitive maintenance work for US airlines. The proposed measure will go to consultation in February 2024, and, if implemented, is estimated to cost US airlines around $100 million over five years, at least some of which would likely be passed on to passengers in the form of higher airfares.
The FAA’s proposal could also come up against COMPLEX AND VARIED PRIVACY AND EMPLOYMENT LAWS IN DIFFERENT COUNTRIES. However, the organization has stated that airlines could apply for a waiver of the requirements in countries where local laws prohibit such testing.
The FAA highlighted that US-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.”
Welcome news for aviation unions
The proposal was, UNSURPRISINGLY, welcomed by the Transport Workers Union, which has been asking for such testing for years. The union’s President, John Samuelsen, said that ensuring that airline mechanics working on US commercial aircraft undergo drug and alcohol testing would close a “BIG SAFETY GAP.”
The proportion of maintenance work now being carried out in foreign countries is ESTIMATED to have risen to around 30%. Samuelsen added that, as a result, the number of mechanic jobs in the US has been cut by around 5,000 since 2017, while more than 35,000 positions servicing US airlines have been created at foreign maintenance stations.
According to the Transport Workers Union, 78 of the foreign maintenance stations used by US airlines are located in China. Other countries with such facilities include Singapore (58), Brazil (22), Thailand (6), Costa Rica (3), and El Salvador (2). IT IS IMPORTANT TO NOTE THAT ALL MAINTENANCE WORK ON US AIRLINES IS ALREADY SUBJECT TO THE SAME STRINGENT FAA REQUIREMENTS, REGARDLESS OF WHERE THE WORK IS CARRIED OUT.
American Airlines’ Tulsa maintenance base is the largest in the world, with 5,000 employees servicing more than 240 aircraft each year. The second-largest is currently under construction in Xiamen, China, which, when completed in 2025, will house six narrowbody and 12 widebody maintenance bays. In Latin America, the largest facility is located in El Salvador, and will be capable of handling the Boeing 777X when the aircraft enters into service in 2025.
