FAA Sidesteps Ruling To Show Cause on Drug Testing

 - March 16, 2011, 11:00 AM

In the continuing saga of the Aeronautical Repair Station Association (ARSA) versus the FAA’s drug testing policy, the FAA employed an unanticipated evasive maneuver.

“As an initial reaction, it appears the FAA has issued a determination to prevent the U.S. Court of Appeals for the District of Columbia from issuing the writ of mandamus for which ARSA petitioned on February 17,” said Craig Fabian, ARSA’s v-p of regulatory affairs and assistant general counsel. On March 1, the court gave the FAA ten days to show cause why it should not issue the requested writ and stay the application of the agency’s drug-and-alcohol testing rules to maintenance subcontractor employees while the FAA completes the final regulatory flexibility analysis (FRFA).

“Before the FAA had to respond to the order it came out with a Supplemental Regulatory Flexibility Determination in the Federal Register on Tuesday, March 8. The FAA made a quick effort to put something on the books to say that it had performed the required analysis,” Fabian told AIN. “It contains the methodology and a number that [the agency has] assigned to the impact on small business. Essentially it has reiterated its calculation that there’s no significant economic effect on the small business community. This was the FAA’s way of telling the court that there is a basis for the court not to act on ARSA’s petition.”

But according to Fabian it is still ARSA’s position the petition should be granted because there is a significant economic impact. 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 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. Many are small, third-tier, off-airport mom-and-pop operations that couldn’t afford to meet the stringent FAA regulations. “ARSA will continue to pursue this case to ensure that the FAA complies with its legal obligations and that the interests of small aviation maintenance contractors and subcontractors are protected in the rulemaking process.” Fabian said. The public has 60 days to comment on the Federal Register posting. Comments are due by May 9.