Filler-Aeronautical Repair Station Association 2017

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U.S. Department of Transportation Federal Aviation Administration HAY 3 0 2017 Marshall Filler Office of the Chief Counsel Aeronautical Repair Station Association 121 North Henry Street Alexandria, VA 22314

RE: 14 CFR part 120 safety-sensitive employees

Dear Mr. Filler:

800 Independence Ave., S.W.

Washington, D.C. 20591 This is in response to your letter of February 15, 2017 requesting a legal interpretation of Title 14 Code of Federal Regulations part 120 rules for drug and alcohol testing to individuals performing tasks associated with receiving articles for stock. The question arises from differing interpretations of whether accepting articles for stock constitutes maintenance or preventative maintenance under§§ 120.105(e) and 120.215(a)(5). Sections 120.105 and 120.215 list the employees who must be tested. Among those listed are employees who perform "[a]ircraft maintenance and preventative maintenance duties." To better understand which employees are performing maintenance and preventative maintenance duties requires reading the definition of both of these terms under 14 CFR § 1.1. Section 1.1 defines maintenance as "inspection, overhaul, repair, preservation, and the replacement of parts, but excludes preventative maintenance." Preventative maintenance is defined as "simple or minor preservation operations and the replacement of small standard parts not involving complex assembly operations."

Also, 14 CFR part 43 applies to the performance of maintenance and preventative maintenance. Sections 43. 9 and 43 .11 establish recordkeeping requirements for tasks associated with maintenance and preventative maintenance. These recordkeeping requirements have never been applied to tasks associated with receiving articles for stock. Individuals who perform receiving tasks ensure that there is no visible damage to the packaging or the enclosed items, and that the articles were obtained from an approved or acceptable source. Persons performing these tasks compare part numbers, serial munbers, quantity, etc. with the purchase order and confirm that the items match the purchase order and that they are not damaged. These tasks are not maintenance or preventative maintenance activities. Therefore, employees receiving items for stock are not safetysensitive employees under part 120 and should not be included in the pool of employees subject to drug and alcohol testing.

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We hope this response has been helpful to you. If you have additional questions or need further assistance, please contact my staff at (202) 267-3073. This response was prepared by Neal O'Hara, an attorney in the Office of the Chief Counsel, Regulations Division and was coordinated with the Flight Standards Service, Aircraft Maintenance Division.

Sincerely,

d~~~Lorelei Peter Assistant Chief Counsel, Regulations Division

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February 15, 2017 Delivered by email; read receipt requested: lorelei.peter@faa.gov Original Delivered by Certified Mail Return Receipt Number: 70141200000028716782 <[_ Lorelei A. Peter, Esq.

Assistant Chief Counsel.

Regulations Division . ,<l.t./\J' "'~- • ,- r{'f\.4. I ' Office of the Chief Counsel 800 Independence Avenue SW Washington, DC 20591

RE: Receiving Functions under Drug and Alcohol Testing Regulations, part 1201

Dear Ms. Peter:

The undersigned companies and organizations request a legal interpretation regarding the applicability of the drug and alcohol testing rules 2 to individuals performing tasks associated with receiving·articles for stock.. For. the r~asons . described .b~low , we subm.it that receiving tasks are not safety-sensitive functions because they are not, nor have they ever been considered, maintenance functions.

It has come to our attention that auditors from the Federal Aviation Administration ' ~ (FAA) Drug Abatement · Division ha:Ve informaUy "«:»pined." that personnel condu.cting tasks associated solely with receiving items for stock ~Ire pefforining ·maintenance· and are therefore engaged in safety-sensitive functions. 3 This expansive interpretation would result in the misclassification of employees, thereby diluting random testing pools with non-safety-sensitive personnel. For that reason , clarification is needed. Pertinent Regulations Part 1 defines maintenance as inspection, overhaul, repair, preservation, and the replacement of parts, but excludes preventive maintenance.4 Preventive maintenance includes simple or minor preservation operations and the replacement of small standard parts not involving complex assembly operations.- 5 Part 43 applies to the performance of maintenance and prevent!ve · mainte~anc.e , ·Le., · safetY-sensiti\le ,fun.ctions; · acco'rding· to § 43.5/ . maintenance and . p'rev:entlve , maintenance "tasks ·must be , appropr~ately .... . ' 1 All citations are to Title 14 CFR unless othel'Wise noted.

2·Part ·120 ' · ·· · 3 §§, 1zo.7, 120.105, 120.215 (defining safety-s~ ~ si t ive functions to. incl.ude mai nte~ance and. P.~event ive maintenance duties). · · · · · · · · . . . · · · · 4§ 1.J.. .

5§ 1.J...

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Ms. Lorelei Peter February 15, 2017 Page 2

RE: Receiving Functions under Drug and Alcohol Testing Regulations, part 120 documented under§§ 43.9 or 43.11. These recordkeeping regulations have never been applied to tasks associated with receiving items for stock and later use or sale. Except for§ 145.21 1(c)(1 )(i), which is limited to raw materials, there is no explicit 14 CFR requirement to perform a review of new and maintained articles before they are placed in stock for later use by a repair station, air carrier or mechanic, or offered for sale under part ~- However, the enforced standard requires a receiving process that enables certificated persons to meet their obligation to install items that will comply with § 43.13(b).6 Indeed, before the current part 145 became effective,§ 145.45 provided more clarity than current § 145.211 in distinguishing between receiving processes used before placing items into stock and preliminary inspections on used items which are about to undergo maintenance or preventive maintenance by the repair station:

* * * (c) The applicant must provide a satisfactory method of inspecting incoming material to insure that, before it is placed in stock for use in an aircraft or part thereof, it is in a good state of preservation and is free from apparent defects or malfunctions.

(d) The applicant must provide a system of preliminary inspection of all articles he maintains to determine the state of preservation or defects. He shall enter the results of each inspection on an appropriate form supplied by it and keep the form with the article until it is released to service. (emphasis added) * * * The old rule (which is the basis for the current standard) recognized that maintenance and preventive maintenance under part 43 begins with a preliminary inspection and ends with an approval for return to service. It draws a distinction between reviewing an article to determine its suitability to be placed in inventory (i.e., a receiving function) vs. its suitability for installation during maintenance (a maintenance and therefore safetysensitive function).

s See AC 20-154, Guide for Developing a Receiving Inspection System for Aircraft Parts and Material.

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Ms. Lorelei Peter February 15, 2017 Page 3

RE: Receiving Functions under Drug and Alcohol Testing Regulations, part 120 Guidance Material and Treatment of Other Entities Performing Receiving Functions AC 20-154, Guide for Developing a Receiving Inspection System for Aircraft Parts and Material, paragraph 1 provides:

This advisory circular (AC) provides guidance and information for incorporation into operators' existing receiving/inspection systems to help prevent the introduction of unairworthy parts into inventories. The aim is to establish sufficient traceability to establish that the part(s) were manufactured under Title 14 of the Code of Federal Regulations (14 CFR) part 21 , were previously determined to be airworthy under 14 CFR part 43, produced to established industry or U.S. Government standards or accepted foreign standards. (emphasis added.)

Receiving tasks are those that ensure there is no visible damage to the packaging and/or the enclosed items and that the articles were obtained from an approved or acceptable source. Persons performing these tasks compare the part number, serial number (if applicable), quantity, and specifications referenced in the purchase order with the information reflected on the supplier's documents, such as a certificate of conformance, packing list and/or invoice. If discrepancies are noted during the receiving process, the article will be quarantined pending further evaluation, including whether the item should be returned to the vendor.or if maintenance is needed before the item may be placed into stock. These tasks are not maintenance or preventive maintenance activities. Additionally, other entities not covered by part 120 (including but not limited to production approval holders7 and accredited distributors8) routinely perform the same receiving functions as certificated operators and repair stations. The FAA has previously stated that distributing an aircraft part is not a safety-sensitive function 9 ; thereby clarifying that receiving for the purpose of inducting a part into inventory is not maintenance or preventive maintenance. The same is true for receiving functions conducted under part 21.

Conclusion A receiving process simply verifies that incoming parts or materials are what they purport to be and that there are no obvious reasons to question a previous determination of airworthiness. If no discrepancies are found, the articles are placed into stock for use in 7 See§ 21.137(c)(1) and (g) .

8 See AC 00-568, Voluntary Industry Distributor Accreditation Program , para. 6(b)(1) (May 27, 2015). 9 Antidrug and Alcohol Misuse Prevention Programs for Personnel Engaged in Specified Aviation Activities, 71 Fed. Reg. 1666, 1668 (Jan. 10, 2006).

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Ms. Lorelei Peter February 15, 2017 Page4

RE: Receiving Functions under Drug and Alcohol Testing Regulations, part 120 performing future safety-sensitive functions on an entirely different article. These receiving activities do not require the creation of a maintenance record because no tasks to which part 43 apply are being performed; therefore, they are not safety-sensitive functions under part 120.

For the foregoing reasons, the undersigned request the FAA verify that the performance of tasks associated solely with receiving items for stock are not maintenance and, as such, are not safety-sensitive functions subject to drug and alcohol testing regulations. We recognize that some personnel doing receiving functions also perform maintenance and preventive maintenance tasks and , if so, would have to be in a DOT-FAA Drug & Alcohol Testing Program.

We appreciate your assistance with this issue and look forward to your timely response.

Sincerely,

Marshall S. Filler Managing Director & General Counsel · Aeronautical Repair Station Association 121 North Henry Street Alexandria, VA 22314-2905 703.739.9543 marshall.filler@arsa.org Ric Peri Vice President, Government & Industry Affairs Aircraft Electronics Association 601 Pennsylvania Ave, NW Suite 900, South Building Washington, DC 20004-3647 202.589.1144 ricp@aea.net Ali Bahrami Vice President, Civil Aviation Aerospace Industries Association 1000 Wilson Boulevard Suite 1700 Arlington, VA 22209-3928 703.358.1080 ,?li.bahrami@aia-aerospace.org Robert L. Ireland Managing Director, Engineering & Maintenance Airlines for America 1275 Pennsylvania Avenue, NW Suite 1300 Washington, D.C. 20004 202.626.4228 rireland@airlines.org

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Ms. Lorelei Peter February 15, 2017 Page 5

RE: Receiving Functions under Drug and Alcohol Testing Regulations, part 120 Michele Dickstein President Aviation Suppliers Association 223_3 Wisconsin Avenue, NW Suite 503 Washington , DC 20007-4104 202.347.6896 michele@aviationsuppliers.org Joe Sambiase Director, Maintenance & Airworthiness General Aviation Manufacturers Association 1400 K Street, NW Suite 801 Washington , DC 20005-2402 202.393.1500 wdesrosier@gama.aero Jason Dickstein President Modification and Replacement Parts Association 2233 Wisconsin Avenue, NW Suite 503 Washington, DC 20007-4104 202.628.6777 jason@wash ingtonaviation. com John McGraw Director of Regulatory Affairs National Air Transportation Association 818 Connecticut Avenue, NW Suite 900 Washington, DC 20006-2733 202.774.1535 jmcgraw@nata.aero Yvette Rose Senior Vice President Cargo Airline Association 1620 L Street, NW Suite 610 Washington, D.C. 20036-5605 202.293.1030 yrose@cargoair.org Harold Summers Director of Flight Operations & Technical Services Helicopter Association International 1920 Ballenger Avenue Alexandria, VA 22314-2898 703.683.4646 harold.summers@rotor.org George Paul Director of Technical Services National Air Carrier Association 1000 Wilson Boulevard Suite 1700 Arlington, VA 22209-3928 703.358.8060 gpaul@naca.cc Jennifer Sunderman Director of Operations, Safety & Technical Services Regional Airline Association 2025 M Street, NW Suite 800 Washington, DC 20036-3309 202.367.1170 sunderman@raa.org

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Ms. Lorelei Peter February 15, 2017 Page 6

RE: Receiving Functions under Drug and A lcohol Testing Regulations, part 120 Paul D. Wolf Superintendant Regulatory & Quality System Oversight The Boeing Company, Commercial Airplanes P.O. Box 3707 MC 67-XC Seattle, WA 98124-2207 425.237.3812 paul.d.wolf@boeing.com Steve McGinn Senior Director, Quality Systems & Regulatory Compliance Honeywell Aerospace 1944 East Sky Harbor Circle MS 2102-319 Phoenix, AZ 85034-3440 602.231 .2230 mcginn.steve@honevwell.com

cc: Kim L. Young

Tim Shaver, AFS-300 Ronald J. Witkowski Director of Quality, Regulatory Compliance Gulfstream Aerospace Corporation 500 Gulfstream Road Savannah, GA 31408-9643 912.395.0471 ronald.witkowski@gulfstream.com Paul Hawthorne Director of Global Support Quality MOOG Aircraft Group Seneca & Jamison Roads East Aurora, NY 14052-0018 716.805.2475 phawthorne@moog .comm kim.l.young@faa.gov tim.shaver@faa.gov