“So now the guy I send seat covers to for cleaning has to have a drug program?” one irate Part 145 operator practically shouted into the telephone. “The guy does the work in his garage. He’s cheap, reliable, does good work and turns it around almost as fast as I can get it to him. I’ve stood there watching him work while we both have a beer. I’m going to tell this guy he has to have a drug and alcohol program? The Feds are losing touch with reality.”
For sure, the latest FAA proposal seems to have garnered industry-wide disbelief. The FAA has proposed to significantly increase the scope of its required drug and alcohol testing program to include all tiers of maintenance providers associated with a Part 121 or 135 air carrier. It puts the air carrier in the unenviable position of potentially being held responsible for the compliance of an entity with which it has no contractual relationship. And don’t be lulled into thinking it doesn’t affect Part 91 corporate flight departments.
As proposed, the regulation would include certified repair stations and non-certified maintenance subcontractors that perform a maintenance function for anyone providing maintenance services to Part 121 or 135 air carriers in the U.S. On the surface it sounds reasonable enough until you fully comprehend the implications. It makes no distinction at all–it applies to anyone working on any piece of an aircraft no matter how far down the contract chain that company is located. You can be absolutely certain that any maintenance provider forced to institute the policy will pass on the costs to all customers, not just those operating under Part 121 or 135.
It will simply become more expensive for everyone to have maintenance done at a Part 145 repair station.
“The FAA thinks that only about 300 companies would be affected by the new rule and that the economic impact would be minimal, but we strongly disagree,” Marshall Filler, managing director and general counsel for the Aeronautical Repair Station Association, said. “We believe the FAA is grossly understating both the number of companies and the economic impact the new rule would have.”
According to Filler, the proposed rule would impose substantial cost burdens on small businesses that work primarily in industries other than aviation, create a logistical nightmare for the airlines and their direct maintenance contractors, and further strain FAA inspector resources. “Many manufacturers of civil aviation products, whose production workers are not covered by the rules today, would also be added to the FAA program,” he said.
The program requires pre-employment drug testing, as well as random, post-accident, reasonable-cause, return-to-duty and follow-up drug and alcohol tests during the period of employment for all workers. It would include those that do the actual work and assistants, helpers or trainees who perform aviation-related safety-sensitive functions (maintenance activities). There are also additional training requirements for workers and supervisors.
The FAA estimates the cost of maintaining an approved drug and alcohol program at $1,200 per year per company. Many consider that optimistic, but regardless it is important to remember that means every company from the largest all the way down to an upholstery cleaning shop in someone’s garage.
Steve Colson, general manager of Midwest Aviation Services in West Paducah, Ky., operates a Part 145 repair station. “We’re already on a company-wide program, including our line staff, but the real problem is it sort of limits where you can go to get work done anymore. We’ve been in compliance for the last couple of years because we have our own Part 135 operation.”
Colson said it was a “big deal” to get everything set up initially. “We lost some of the companies we’d been dealing with for years,” he said. “Being on the program is just a part of doing business, but make no mistake: Part 145 costs more than a non-145 operator’s rate for many reasons, and this certainly is one of them. Obviously, we have to pass on the extra cost to all our customers, whether or not they’re a Part 135 operator.”
Filler said most repair stations use direct contractors and subcontractors to one degree or another. He offers as an example a company that repairs common consumer electronic items, such as VCRs and DVD players, if they are subsequently installed in aircraft. It’s not difficult to imagine a subcontractor who’s not even aware that its work is aviation maintenance-related, yet it would be required to have a drug and alcohol testing program.
“Under FAA regulations, these companies cannot take airworthiness responsibility for the work they perform because they do not hold an FAA certificate. Safety is assured, however, because the certified repair station remains directly in charge of all work performed by the non-certified company. Employees of certified repair stations are currently covered by the drug and alcohol rules when they perform covered work,” he explained.
“People aren’t grasping this situation,” Sarah MacLeod, ARSA’s president, told AIN. “It is not just what we think of as ‘third-tier companies.’ It is any tier–fourth, fifth, sixth, whatever. Just think of the activities performed by non-certified maintenance contractors. There are all sorts of specialized services such as welding; heat-treating and machining; fabrication of small detail parts used in the maintenance process; dry cleaning of items that are installed in aircraft, such as window treatments; repair of consumer electronics before their re-installation on aircraft; and other functions that have commercial applications other than civil aviation.”
One of ARSA’s concerns is that many such contract providers are not “in” the aviation industry to begin with. For many, aviation is a small subset of their normal business, and their response to such requirements will merely cause them to stop servicing the aviation industry entirely rather than face the burden of employee drug and alcohol testing. This industry may be everything to us, but it pales in comparison to the automotive, consumer-electronics and home-service industries. Faced with the choice of compliance or dropping aviation customers, most will likely choose the latter.
“We have to beat this drum loudly because it is certainly an example of the FAA not understanding its own industry,” MacLeod said. “The new Part 145 rule makes it very clear that a repair station cannot use a non-certified source unless it ‘knows’ the work done by the source is airworthy. That fact is being totally missed by the rulemakers.”
According to MacLeod, in 2002 ARSA put together a coalition of 14 aviation industry groups that submitted joint comments to the FAA pointing out the impracticalities and problems associated with requiring air carriers and their direct contractors to ensure that multiple tiers of the maintenance process were part of an FAA drug and alcohol program.
The May 17 supplemental notice of proposed rulemaking issued by the FAA largely ignored or flat out rejected that group’s concerns. “They claimed the number of additional contract providers potentially subject to the rules is small, that the extensive testing requirements and associated costs already exist and that as a result the rule is merely clarifying in nature,” MacLeod said. “We maintain the expanded testing program will be costly and impractical, while offering no meaningful safety benefit.”
“ARSA is extremely disappointed that the FAA appears determined to finalize these proposals in spite of the extensive record that they are not necessary in the interests of safety,” Filler said. “They will impose substantial cost burdens on small businesses that work primarily in industries other than aviation, create a logistical nightmare for the airlines and their direct maintenance contractors and further strain FAA inspector resources. We will continue to work vigorously to persuade the FAA to withdraw the proposed rule.”