What's It All About?

It’s not exactly the fog of war, but there is certainly a heavy mist surrounding the issues raised by recently proposed legislation that would impose on FAA-certificated foreign repair stations some of the same safety and security requirements already imposed on domestic repair stations. Varying forms of the legislation are winding their way through Congress as I write. In the meanwhile, factions pro (labor unions and passenger safety advocates) and con (mostly large repair stations with foreign operations) are filling the aviation air waves with dueling newsletters and emails to their constituencies. The result is a fair amount of confusion.

Since legislation was first proposed, I’ve received numerous calls and emails from people asking for clarification. Many were quite well-versed in the issues, but many had some very basic questions regarding certification of foreign vs. domestic repair stations and the differences in government requirements. This article is intended for those who need a primer on the subject, essentially a regulatory review of the primary differences in requirements that are the subject of the varying legislative initiatives.

Introduction
As all of you know, the FAA certificates repair stations under Part 145 of the Federal Aviation Regulations. Repair stations that operate within the United States are called domestic repair stations and those that operate abroad are called foreign repair stations. It’s important to remember that the issues involved here apply to repair stations certificated by the FAA and not to truly “foreign” repair stations. In brief, there are three significant regulatory requirements that apply to domestic repair stations performing work on air carrier aircraft and not to FAA-certificated foreign repair stations performing that same work:

  1. Drug testing,
  2. Alcohol testing, and
  3. Background checks.

While other differences also exist, they are not currently the subject of legislative initiatives.

Drug testing
For almost two decades, transportation workers who perform safety-sensitive functions have been subject to drug testing, the purpose of course being to help prevent accidents caused by the use of prohibited drugs by employees. The drug testing rules applicable to repair station employees working on air carrier aircraft are actually contained in Appendix I to Part 121. These rules define safety-sensitive employees to include those employees who perform aircraft maintenance or preventive maintenance duties. These aircraft maintenance workers are subject to pre-employment, random, reasonable suspicion and post-accident drug testing.

While safety-sensitive, domestic repair station employees are covered by these drug testing rules, the same employees at foreign repair stations are not. Specifically, the rule states “no part of the testing process (including specimen collection …) shall be conducted outside the territory of the United States.” In addition, while domestic employees performing safety-sensitive functions for a repair station by contract are subject to the same drug-testing rules as safety-sensitive domestic employees, foreign contractors are not. Specifically, “the provisions of this appendix shall not apply to any person who performs a [safety-sensitive] function by contract for an employer outside the territory of the United States.” [Emphasis added.]

This means that maintenance performed on air carrier aircraft by domestic repair stations is performed by employees subject to drug testing requirements, whereas the same work performed by FAA-certificated foreign repair stations is not. (While rare, it should be noted that if a domestic repair station performed maintenance work outside the United States — either directly or by contract — those workers would also not be subject to drug testing.)

Alcohol testing
Similar to drug testing requirements, alcohol testing rules are contained in an appendix to Part 121, Appendix J. These rules are also intended to prevent accidents caused by the misuse of alcohol. Domestic repair stations are required to perform post-accident, random and reasonable suspicion alcohol testing of safety-sensitive employees. (They may perform, but are not required, to perform pre-employment alcohol testing.) FAA-certificated foreign repair stations are not required to perform any alcohol testing of safety-sensitive employees. Similar to the drug testing exemptions contained in Appendix I, Appendix J provides “[n]o covered employee shall be tested for alcohol misuse while located outside the territory of the United States.” In addition, Appendix J states “the provisions of this appendix shall not apply to any person who performs a safety-sensitive function by contract for an employer outside the territory of the United States.” (As with drug-testing requirements, and although rare, it is true that domestic repair station employees or contractors located outside the United States would also not be subject to alcohol testing.)

In sum, maintenance performed on air carrier aircraft by domestic repair stations is performed by employees subject to alcohol testing whereas that same work performed by FAA-certificated foreign repair stations is not.

Employee background checks
Unlike the drug-testing requirements which are under the FAA’s purview, employee background checks fall under the jurisdiction of the TSA. Title 49 of the U.S. Code Section 44936 requires background checks of, among others, employees with access to air carrier aircraft or secured areas of U.S. airports. This covers employees who perform maintenance on air carrier aircraft. The background check must cover the previous 10 years and include a criminal history record check and a check of national and international law enforcement databases.

The law not only requires a 10-year background check but it also prohibits, among others, an air carrier from contracting with anyone who has not had a 10-year background check or has been found guilty (or not guilty by reason of insanity) of a long list of crimes, including murder, rape, kidnapping, and felonies involving threats of harm, illegal drug importation, fraud, and theft.

These rules apply to domestic employees but not foreign employees. Therefore, domestic repair station employees would be subject to the 10-year background check and employment restrictions where FAA-certificated foreign repair stations would not.

Conclusion
In my opinion, the drug and alcohol testing rules were implemented to improve safety by minimizing the risk that drug-addled or intoxicated aviation workers would cause an accident. Similarly, the background check and employment restriction rules were enacted to keep undesirables away from air carrier aircraft. The disparate application of these rules has made a mockery of them.

It makes no sense to me that a U.S. airline having maintenance performed at an FAA-certificated repair station in Buffalo is subject to safety and security rules that that same airline having that same maintenance performed 20 miles north in Canada is not subject to — just because the FAA-certificated repair station in Canada would be considered a “foreign” repair station by virtue of its location abroad.

Given the cost of drug and alcohol testing and background screening, the FAA and TSA are flying work away from the United States and decreasing the safety and security of the traveling public. For these reasons, I support legislation which would make the rules the same for work performed by FAA-certificated repair stations regardless of where they’re located.

John Goglia has 30 years experience in the aviation industry. He was the first NTSB board member to hold an FAA aircraft mechanic’s certificate. Currently he is senior vice president for aviation operations and safety programs for consulting firm JDA Aviation Technology Solutions.

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