ARSA Prevails: FAA Must Show Cause in Drug Test Case

 - March 9, 2011, 10:08 AM

The United States Court of Appeals for the District of Columbia Circuit has sided with the Aeronautical Repair Station Association (Arsa) against the FAA as reported last week. In accordance with Arsa’s request in a writ of mandamus, the court ordered the FAA to explain why it should not grant Arsa’s request to force the agency to comply with the court’s mandate to perform a final regulatory flexibility analysis (FRFA) of its 2006 drug and alcohol rules. The FAA must respond to the court by 4 p.m. tomorrow (March 10, 2011).

“It is extremely troubling that it takes courts to ensure the government follows its own mandates. If the final analysis is as problematic as the initial product of the agency, the association will again be forced to remind the agency of its responsibilities,” Arsa executive director Sarah MacLeod told AIN. “Neither the association nor the industry made the rules but we sure are required to follow them; therefore, we will continue to demand the same compliance from the government agency.”

If the FAA fails to show cause, the agency will have until May 23, 2011, to complete the analysis. The court order would also stay the rules for testing of subcontractor employees who perform safety-related functions at any tier while the FAA carries out the review.

In the underlying case, the court found that the FAA failed to perform a required FRFA 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; the association estimates that the FAA failed to account for as many as 22,000 small businesses.

Despite the court’s decision, the FAA ignored the mandate for more than three years. As a result, Arsa filed a formal request with the court to compel the FAA to fulfill its legal obligation.

“This is a major victory for small business and establishes that the Regulatory Flexibility Act can have teeth,” said MacLeod. “Today’s ruling shows that agencies cannot [flout] the law without consequence.”