D&A Q&A: You got questions? We got answers!
As you may know, ARSA is currently working to address the issues caused by the drug and alcohol rule issued by the Federal Aviation Administration (FAA) which went into effect on October 20, 2006.
ARSA has gathered up many of your questions and posted them, along with our answers. If you have a question, please take a look at the Q&A. The odds are great that someone else has had a similar question.
If our Q&A does not answer your question, please feel free to contact us and we will answer you as quickly as possible. Given the high volume of member questions on this difficult rule, we ask that you please email your questions to arsa@arsa.org, as our drug and alcohol team may not be available to answer questions by phone. Please be patient with us, as we are working hard to make sense of this rule and provide our members with practical guidance.
ARSA member questions and answers
Drug and alcohol testing
Q: Where are the DOT/FAA drug and alcohol rules located?
A: The DOT rules are found in 49 CFR Part 40 and the FAA rules are located in 14 CFR Part 121, Appendix I (drug testing) and Appendix J (alcohol testing).
Q: When do these rules apply?
A: The rules apply only to persons who perform a safety-sensitive function for a Part 121 or Part 135 air carrier in the United States.
Q: What is a safety-sensitive function?
A: The list of safety-sensitive functions in Section III, Appendix I of Part 121 (and a companion provision in Appendix J), includes “aircraft maintenance and preventive maintenance.” So if maintenance or preventive maintenance functions are being performed, it is considered safety-sensitive and the individuals doing the actual work need to be tested.
Q: What is maintenance?
A: Maintenance and preventive maintenance are defined in §1.1 of the Federal Aviation Regulations (FARs). Maintenance includes “inspection, overhaul, repair, preservation, and the replacement of parts…” and preventive maintenance is defined as “simple or minor preservation operations and the replacement of small standard parts not involving complex assembly operations.”
From the recordkeeping requirements for overhauls in § 43.2, we know that overhauled items must be disassembled, cleaned, inspected, repaired as necessary, reassembled and tested. Also, if you are a Part 145 repair station, you are required to keep a list of maintenance functions that you contract out. FAA guidance defines maintenance functions as “a step or series of steps in the process of performing maintenance, preventive maintenance, or alterations…”
If an employee of an air carrier, contractor or subcontractor at any tier is performing any of the above functions, that employee must be tested under the rule.
Q: Has Flight Standards defined maintenance differently? Should I ask them or my FAA inspector what maintenance is?
A: ARSA believes that the FAA’s own definitions of maintenance and preventive maintenance are sufficiently clear. To our knowledge, Flight Standards has never amended the regulatory definition of maintenance or preventive maintenance. Similarly, FAA inspectors determine whether a task is maintenance by using the regulatory definition- and so should you.
Q: I repair entertainment system components. The rule says I don’t have to be tested, so I can ignore it, right?
A: Sorry to disappoint, but no. Despite the ambiguous language in the preamble of the rule, ARSA would say that the repair of entertainment system components is clearly considered maintenance (and always has been). We would not recommend that you ignore the testing requirements in this rule.
Q: The rule talks about “subcontract at any tier”–how do I figure out what tier I’m on?
A: This is a key issue with the rule; you must determine where you are in the tiers of maintenance so that you know what responsibilities you have.
The air carrier will obviously be at the top of the maintenance pyramid. If an air carrier performs all its own maintenance, there are no tiers to consider. When an air carrier contracts out maintenance to a repair station, that repair station (or Non Certificated Maintenance Source (NCMS), if applicable) would be the first tier of the maintenance contract. The FAA has always required that employees performing safety-sensitive work for an air carrier directly or by contract be tested.
Here’s where the “clarified” rule kicks in. If that contractor, be it a repair station or otherwise, subcontracts maintenance functions to another party, that would create Tier 2 (the second maintenance provider). The entity on Tier 2 might then subcontract to another person- Tier 3, and so on. The FAA now states that employees performing safety-sensitive functions for an air carrier at any tier must be tested.
Q: I am a repair station with my own testing program. At which tier does my responsibility end?
A: Under the regulations and your voluntary submission to the DOT D&A testing requirements you are responsible for your own compliance as well as all tiers below you. But if the contractor directly below you has its own program, it will also be directly responsible for ensuring compliance at any lower tier. If the contractor on the tier below you does not have its own program, you are directly responsible for its compliance.
Keep in mind, however, that the Drug Abatement Division has reserved the right to hold anyone with an FAA-regulated testing program responsible for noncompliance at a lower tier. This goes all the way up to the air carrier, as the carrier is ultimately responsible for ensuring that the employees performing safety-sensitive functions for it (at any level) are tested.
Q: My certificated repair station has its own approved drug and alcohol program. Can I bring my subcontractors into my program?
A: The short answer is yes, you can. Depending on the relationship you have with your subcontractors, this may be the most efficient way to deal with the rule. Of course, if the employees of your subcontractors come into your program, you become responsible for ensuring that they are part of your random testing pool. You must also keep the appropriate records, meet reporting requirements, etc.
Q: What if my subcontractors do work for other repair stations?
A: If you bring a subcontractor’s employees into your program, they are in compliance only when performing work for you. So if that subcontractor’s employees perform safety-sensitive functions for any other repair station, your testing program does not cover them. They are therefore not in compliance when working for other repair stations. For this reason, it will not always be feasible for repair stations to add employees of the other company to their program. Many entities will need to start their own program.
Q: How can a shop get its own program?
A: They can go to a service provider or join a consortium- just like any certificated entity. The major difference is that an NCMS must register their program with the Drug Abatement Division. Click here to visit their Web page (a new window will open).
Unfortunately, the expense of starting a drug & alcohol testing program is significant, especially for NCMS that are small businesses or do relatively small amounts of aviation work. Also, NCMS should realize that if they have their own program, they are responsible for the administration of that program and can be held responsible for noncompliance, just like certificated repair stations and air carriers. Some NCMS may decide that compliance is too expensive or burdensome.
Q: How do I know if I should join an air carrier or repair station’s program, or start my own?
A: It all depends on you- or, more precisely, on the number of customers you have.
Remember that air carriers are required under Appendix I and J to have FAA-approved testing programs, but that certificated repair stations and non-certificated repair facilities are not. However, if you do not have your own testing program and your employees are tested under another entity’s program, the individual is only in compliance when doing work for that entity. If they perform safety-sensitive work for another carrier or repair station, they must be tested as part of the second (third, fourth, fifth) entity’s program.
Since many certificated repair stations and NCMS perform work for multiple air carriers, as a practical matter it is easier for them to start their own program. For some NCMS or repair stations who work exclusively for one repair station or one air carrier, it may be more cost-effective for their employees to be part of the repair station or air carrier’s program.
Q: The FAA said in the rule that having a copy of a contractor or subcontractor’s OpSpecs isn’t enough to prove that the contractor is in compliance. They also said that auditing was a good idea, but not mandatory. So do I have to audit or not?
A: After analyzing the language in the preamble, ARSA is just as confused as you are. ARSA certainly suggests that you obtain a copy of the OpSpecs or proof of program registration if the contractor or subcontractor is an NCMS.
Q: How do I ensure that my subcontractors are testing so that the FAA doesn’t come after me for someone else’s violation?
A: The short answer is: put it in a contract. When you contract out work, include language in the agreement that the other party’s employees, and any employees of subcontractors at any tier below you, will be tested under an FAA-regulated program. You should also ask them to agree to hold you harmless if the FAA attempts to make you responsible for noncompliance by the other party or by a subcontractor at a lower tier.
The air carriers are already doing this–repair stations and NCMS should as well.
Q: My repair station is located outside the U.S. but I use an NCMS inside the U.S. Am I responsible for ensuring the NCMS’ compliance?
A: The provisions of Part 121, Appendices I and J do not apply to persons performing work for a Part 121/135 carrier “outside the territory of the United States.” Maintenance providers located outside the U.S. are not required to have an FAA-regulated program.
The FAA made it clear in the final rule that only contractors that obtain their own testing programs will be held responsible for noncompliance with the testing rules, or noncompliance at a lower tier. Therefore, the FAA will not hold your repair station responsible for the compliance of an NCMS inside the U.S.
Though the FAA may not hold you directly responsible, your air carrier might. As noted above, your contract to perform maintenance for an air carrier may well include a provision obligating you to ensure testing compliance at lower tiers. Indeed, air carriers are ultimately responsible for compliance and they will do what they can to avoid getting into hot water with the Drug Abatement Division!
Q: I have a dozen welders in my non-certificated shop, but only two of them perform work on aviation jobs. Do all of my welders have to be tested, or just the two?
A: Be very careful: it depends on what you mean by “performing.” Appendix I and J define “performing” as “any period in which [an employee] is actually performing, ready to perform, or immediately available to perform” a function.
You can choose to test only the two welders currently doing aviation work, but what happens if you get in a rush job and both of your aviation welders are out sick or on vacation? You can’t give the work to any of your other welders, since none of them have gone through pre-employment testing as required by Part 121, Appendix I. It may make good business sense to have a few of your other welders “in reserve” for aviation work, but keep in mind that those additional welders must be part of a testing program, even if they never actually weld an aviation part, because they are immediately available to perform safety-sensitive work.
Ultimately, the number of employees you should include in a testing program will largely be a business decision.
Q: Ninety percent of the business of my non-certificated repair facility is not aviation related. Does this rule still apply to me?
A: The amount of aviation work you do as a percentage of your overall business is irrelevant. If your employees perform safety-sensitive work for any tier in a maintenance contract for an air carrier, they must be tested.
This rule has a significant effect on non-certificated facilities that derive only a small percentage of their revenue from aviation work. Many of these non-certificated facilities are small businesses who cannot afford the additional cost of setting up their own testing program. They may not be able to add their employees to an existing testing program for various reasons. In the end, many may simply leave the industry, leading to repair stations and air carriers having to bring certain maintenance tasks back in house.
Q: But isn’t that a good thing? Since ARSA Members are largely certificated repair stations, shouldn’t they want to see non-certificated competition go away?
A: That’s just it: many of the NCMS are not in competition with repair stations. Much of the maintenance performed by NCMS, such as welding and plating, are contracted out for a reason. Performing plating work, for example, requires compliance with a host of Environmental Protection Agency regulations. As a result, it is often cost-effective for air carriers and repair stations to contract out such work to shops that specialize in it. If NCMS are forced out of the industry, much of the work will need to be brought back in house, which will lead to higher maintenance costs.
Q: My PMI told me not to worry about this rule. Is that a good idea?
A: Unfortunately, no. Apparently some people are getting this message from their PMIs, but don’t forget that they won’t be enforcing the rule- the Drug Abatement people will! Nevertheless, if you want to rely on your PMI’s statement, we would urge you, at the very least, to get it in writing, but we don’t think that ignoring this rule will be to anyone’s benefit.
If you are an ARSA Member and you have additional questions about the drug & alcohol testing rule, please contact us at arsa@arsa.org or call us at 703 739 9543.
