By Patrice M. Kelly, JD, Co-President, Patrice Kelly Global Solutions, a wholly owned subsidiary of Current Consulting Group
As the former and longest-serving Deputy of the Federal Aviation Administration’s (FAA) Drug Abatement Division (from 1999 – 2007), I can tell you the FAA does not joke about safety.
On Dec 18, 2024 the FAA published a final rule requiring 977 aviation maintenance facilities outside the USA to establish a Drug and Alcohol (D&A) testing program under the FAA’s regulation, 14 CFR Part 120 (Part 120), and conduct the actual testing in accordance with the U.S. Department of Transportation’s (DOT) regulation, 49 Code of Federal Regulations (CFR) Part 40 (Part 40). That 35-page final rule allows for very specific waivers from Part 120 and/or exemptions from Part 40 where the domestic laws of foreign nations do not permit the specific requirements of those regulations. However, there is absolutely no reason to believe the FAA and/or the Office of Drug and Alcohol Policy and Compliance (ODAPC) at the DOT will issue blanket waivers or complete exemptions. In fact, I believe that is highly unlikely in most cases.
Congressional mandate
Congress passed the FAA Modernization and Reform Act of 2012, Public Law 112-95 (Feb. 14, 2012). Section 308(d)(2) of that Act required the Administrator of the FAA to require alcohol and “controlled substances” testing for all safety-sensitive employees at repair stations certificated under 14 CFR part 145 (Part 145 Repair Stations), if these employees perform maintenance functions on aircraft operating under 14 CFR part 121 (Part 121) outside the United States. Congress wanted to ensure that U.S.-registered aircraft operating under Part 121 overseas have the same safety protections of drug-free and alcohol-free maintenance as they would have for the maintenance conducted in the U.S.
The FAA’s new final rule
With the glacial speed at which most Federal government rulemaking happens, the FAA published an Advance Notice of Proposed Rulemaking on March 17, 2014. Ultimately, the FAA’s final rule was published on Dec. 18, 2024, and became effective on Jan. 17, 2025. All 977 Part 145 repair stations outside the US, and any new ones coming along, must implement drug and alcohol testing and be in full compliance with Parts 40 and 120 no later than Dec. 20, 2027. The only exceptions will when a Part 145 repair station or its government applies for and receives a waiver and/or exemption from the FAA and/or DOT. Those waivers and exemptions are intended to be very narrow. Such waivers and exemptions must be supported by good cause and they must articulate explicit conflicts of law with specific provisions of Part 40 and/or Part 120, as noted in the 37-page final rule.
The FAA’s final rule does not extend to all maintenance facilities across the globe – only to those that have obtained an FAA Part 145 repair station certification to allow them to perform maintenance functions on US-registered aircraft operating under the FAA’s 14 CFR Part 121 (Part 121). In other words, those maintenance facilities have obtained special and rigorous FAA certification that allows maintenance on the aircraft of U.S. flag carriers operating under Part 121. When an overseas maintenance facility obtains Part 145 certification, they are allowing the FAA to inspect them and ensure they are meeting the same safety standards as the FAA requires within the U.S. Those repair stations have consented to US oversight. Drug and alcohol testing under Parts 40 and 120 will now be part of those important safety standards.
Under the new final rule, all foreign Part 145 repair stations must meet every aspect of the FAA’s Part 120 and the DOT’s Part 40 drug and alcohol testing regulations and the Part 145 repair station must obtain an Operations Specification committing to follow those requirements. Collectors must be qualified under Part 40. Collection sites must demonstrate the same standards to ensure the security and integrity of specimen collections as are expected in the U.S. Collection procedures for drug and alcohol specimens must be conducted in accordance with Part 40. The use of HHS-certified laboratories is required. All Medical Review Officers, Substance Abuse Professionals, drug specimen collectors, Breath Alcohol Technicians, and Saliva Screening Test Technicians must be qualified under Part 40. Only the Evidential Breath Testing Devices and Alcohol Saliva Testing Devices allowed under Part 40 can be used. The types of testing and triggers for those, as well as supervisor training, employee awareness materials, employer policies, annual statistical reporting to the FAA, and other requirements, all must be done in accordance with the FAA’s Part 120.
Exemptions and waivers
To allow a Part 145 repair station overseas to deviate from the full provisions of Parts 40 and 120, the repair station or their domestic government would need to petition for an exemption to the DOT and/or a waiver to the FAA to explain that:
- one or more of the DOT’s and/or FAA’s specific requirements conflict(s) with foreign law; or
- the Part 145 repair station already has a program consistent with their local laws that would be compatible with the DOT/FAA requirements.
If the domestic laws of the repair station do not allow the Part 145 repair station to follow specific provisions within Parts 120 and 40, the repair station can apply for a waiver from Part 120 and/or an exemption from Part 40. The Part 145 repair station must show that compliance with specific sections of Part 40 are “impracticable” under the laws of that country. Under the DOT’s requirements for an exemption, the Part 145 repair station or its domestic government would need to assert good cause AND meet the stringent requirements to be exempted from a DOT safety regulation.
After participating in the detailed petitioning process, the Part 145 repair station or its national government may receive an exemption or a waiver to grant relief from compliance with the very specific requirement(s) they have identified as conflicting with their own national law. However, even with a waiver and/or exemption, the Part 145 repair station must be able to meet an equivalent level of safety to what is provided by Parts 40 and 120. The purpose of all of this is to honor existing laws in a Part 145 repair station’s own country and establish an equivalent level of safety.
For already established drug testing programs at an overseas Part 145 repair station, the Part 145 repair station would assert that its program is “compatible” under all of the following criteria:
- Testing or established consequences used to detect and deter safety employees from misusing alcohol or using drugs.
- Education: a program or materials that explain the impact and consequences of drug use and alcohol misuse.
- Rehabilitation: the method used to rehabilitate and ensure that safety-sensitive employees who are returned to work no longer misuse alcohol or use drugs.
If all three criteria are met, the Part 145 repair station would apply for a waiver from Part 120 and provide detailed documentation to explain how its compatible program establishes an equivalent level of safety to all of Part 120’s provisions that will not be followed.
If you are thinking that it would be easier to simply follow the requirements of Part 40 and Part 120, I would agree at this point. However, the practicalities and the logistics of a situation may not support that.
Business opportunities for U.S. and overseas companies
There will be opportunities for MROs, SAPs, HHS-certified laboratories and other service agents as this international marketplace opens to DOT testing. Why just stop at Part 145 certificated repair stations? Shouldn’t the maintenance personnel working on aircraft other than U.S.-registered Part 121 aircraft be drug-free and not misusing alcohol? Are you ready for the logistical challenges and the new business? Would your potential clients need waivers and exemptions, or could you comply with Parts 40 and 120? Talk to an expert and expand your horizons!
The bottom line is: with or without such waiver(s) and/or exemptions, all foreign repair stations must comply no later than Dec. 20, 2027. The FAA will be inspecting to ensure that Parts 40 and 120 are being followed, or that applicable exemption terms are being met. In my career as an FAA attorney, I revoked the Part 121 operating certificate for an air carrier that did not want to follow the FAA’s and DOT’s drug testing regulations. In my career as a consultant, I want to make sure that never happens to my clients.
The international world of workplace drug and alcohol testing is expanding. This is serious, exciting and challenging! Are you ready for it?