FAA Proposed to Apply Drug Testing Rules to Foreign Repair Stations

The FAA has published a proposed rule that would apply FAA drug-and-alcohol testing rules to foreign (non-US) repair stations.

Statutory Authority

49 U.S.C. 45102 directs the FAA to prescribe drug-and-alcohol testing regulations for air carriers and foreign air carriers. Section 308 of the FAA Modernization and Reform Act of 2012 (the Act), 49 U.S.C. 44733(d)(2), 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.” Section 2112 of the FAA Extension, Safety, and Security Act of 2016 directed the FAA to finalize the drug-and-alcohol provisions.

Regulatory Actions

The FAA published an advanced notice of proposed rulemaking (ANPRM) on this subject on March 17, 2014.

Opponents of this provision suggested that this could be considered an imposition on the sovereignty of the foreign government. Commenters to the ANPRM suggested that the FAA shouldn’t impose regulations on persons outside the territory of the U.S. where those regulations conflict with the laws of sovereign nations.

The FAA determined that it might be true that extra-territorial application of FAA drug-and-alcohol testing regulations might violate national and international law “and might exceed generally recognized limits to extraterritorial jurisdiction.” Nonetheless, the FAA reasoned that if an FAA testing rule was contrary to the applicable laws of a country in which a repair station was located, then the appropriate remedy would be for the repair station to apply for an exemption from the FAA’s drug-and-alcohol testing regulations.

Comments are due February 5, 2024.