ARSA Challenges FAA Delay on Drug Testing Order

 - March 2, 2011, 10:15 AM

The latest development in a long-running battle between the Aeronautical Repair Station Association (Arsa) and the FAA over the agency’s 2006 Drug and Alcohol Testing rules is a writ of mandamus. ARSA filed the writ on February 17 to compel the FAA to abide by a court mandate to perform a required Regulatory Flexibility Act (RFA) analysis of its drug and alcohol testing rules.

In the underlying case the U.S. Court of Appeals for the District of Columbia Circuit found that the FAA failed to perform a required RFA analysis to determine the small-business impact of its drug-and-alcohol testing rules. The court sided with ARSA and determined that the rules would pose a substantial burden on many small businesses. Ultimately, the court ordered the FAA to perform a full RFA analysis. 

Sarah MacLeod, Arsa’s executive director, told AIN, “The harm is well past. The FAA has to roll back the clock to comply with the court order to institute a full-blown RFA analysis. It is important to determine the true impact on small businesses of extending drug-and-alcohol testing to any tier in the maintenance contract. Whatever the agency does now will be a poor attempt but Arsa did not think that the agency should get away with completely ignoring an order of a federal court.” 

Craig Fabian, v-p of regulatory affairs and assistant general counsel to Arsa, said the organization does not like the FAA’s process in making the determination of who needs drug-and-alcohol testing. 

“We’re not against drug testing and don’t suggest it should disappear,” he said. “The problem is with the process. It is important to the industry as a whole that the FAA accurately determine the economic impact on small operators. I think there are small shops that have chosen not to work for air carriers to avoid the financial burden of complying with drug-and-alcohol testing.” 

According to Fabian, in 2006 the FAA issued a final rule that revised the agency’s existing drug-and-alcohol testing requirements. The rule was applicable to air carrier employees responsible for safety-sensitive functions. From Arsa’s perspective, the problem was it expanded the applicability to include the employees of contractors of any tier. Suddenly, small mom-and-pop off-airport operations had to implement a drug-and-alcohol screening program even though they might be doing upholstery work on a subcontract from an MRO serving an airline.

Fabian said that when the FAA proposes a rule it is required to do an RFA analysis, but it does not have to do a full analysis if it concludes the new rule will directly affect only air carriers and not have a significant effect on small business. When it proposed the rule, the FAA did a tentative analysis including both air carrier and repair stations with the notice of proposed rulemaking. 

“When the final rule was published in 2006, the FAA concluded that repair stations and their contractors were not entities directly covered under the rule and therefore no analysis was required. However, in a survey conducted by Arsa it was determined that there are between 12,000 and 22,000 small-business repair station subcontractors who would be impacted,” Fabian said.

On Oct. 11, 2007, the U.S. Court of Appeals for the District of Columbia determined the FAA didn’t properly complete the RFA analysis and ruled the agency had to conduct a full analysis and treat the contractors and subcontractors as regulated entities. 

“Unfortunately, when the court ruled it didn’t also vacate the regulation, saying it was in the public interest not to vacate it. The court only remanded it back to the FAA to conduct a full RFA analysis. That’s the last we ever heard of it. It’s been essentially a black hole; there hasn’t been one word from the FAA on the subject,” Fabian said. “In 2009, when the FAA moved the rules from the Appendices of Part 121 to the new Part 120, it said, ‘It has no significant economic impact on a substantial number of small entities and FAA analysis wasn’t required.’ [The FAA has] completely ignored the court order. So now we’ve asked the court to compel the FAA to comply with the mandate. We essentially have asked the court to put some teeth into it. We also asked that the rule should be vacated if the FAA doesn’t comply. Had the court taken that significant step when it issued the order, I think the FAA would have jumped all over it. Now we have to wait and see what happens.”