Drug and Alcohol Testing
On Jan. 10, 2006, the Federal Aviation Administration (FAA) issued a final rule “to clarify” D&A testing regulations; henceforth “…each person who performs a safety-sensitive function for a regulated employer by contract, including by subcontract at any tier, [will be] subject to testing” (emphasis added).
ARSA promptly challenged the mandate; in a July 17, 2007 decision, the U.S. Court of Appeals for the District of Columbia Circuit agreed the FAA violated the Regulatory Flexibility Act (RFA) by not properly considering the rule’s impact on small businesses (ARSA, et. Al. v. FAA, 494 F. 3d 161).
The RFA (5 U.S.C. § 603 (a)), passed by Congress in 1980, addresses the disproportionate economic impact of federal regulations on small businesses. The law does not require special treatment or regulatory exemptions for small businesses, but mandates that agencies look at different ways to achieve public policy objectives without unduly burdening those enterprises.
In its D&A rulemaking, the FAA argued the new rule would only affect 297 repair station subcontractors. In response, ARSA conducted a member survey and its own economic analysis and estimated the number of subcontractors affected at more than 12,000. The discrepancy caused the Small Business Administration’s Office of Advocacy to weigh in; it also concluded the FAA’s analysis was flawed.
The Court ultimately upheld the D&A testing requirements but directed the FAA to conduct the proper RFA analysis. For more than three years, the FAA failed to make any effort to comply with the court’s ruling. On Feb. 17, 2011, ARSA filed a petition for a writ of mandamus to force the FAA into compliance and on March 1, 2011, the court sided with ARSA, giving the FAA until March 10 to perform the final regulatory flexibility analysis.
On March 8, 2011, the FAA published a supplemental regulatory flexibility determination (SRFD) in the Federal Register, which the court accepted in its April 13, 2011 order. While the association submitted comments challenging the FAA’s SRFD conclusion (arguing the FAA failed to use reliable and independently verifiable data as required by the RFA and the Data Quality Act), the FAA published its final regulatory flexibility determination on July 12, 2011.
14 CFR Part 120 — Drug and alcohol testing program (Full text of the current regulation)
Guidance alert (.pdf) (FAA guidance addressing industry issues on the final rule.)
FAA letter to Pratt & Whitney (Interpretation on if fabrication of parts used in maintenance is considered maintenance for testing purposes.)
Inspectors’ memorandum (.pdf) (Describes tasks considered to be maintenance or preventative maintenance.)
D&A FAQs on FAA website (Frequently asked questions about the drug & alcohol rule posted on the FAA’s website.)
FAA registration option letter(Description of drug & alcohol program registration option.)
ARSA’s Q&A on the new rule (ARSA answers to member questions about the drug & alcohol rule.)
FAA/Industry meeting on d&a testing rule (Summary of meeting held prior to the final rule’s compliance date on how the final rule would apply to the industry.)
ARSA letter to the FAA (ARSA Seeks Clarification from FAA on D&A Guidance Issues.)
Timeline of ARSA D&A Action:
Below is a timeline with links to key documents related to ARSA’s ongoing legal challenge of the FAA’s final drug & alcohol rule, released January 10, 2006.
Jan. 10, 2006: FAA Issues Final Rule
Final Rule (.pdf)
July 12, 2006: RAA Hosts FAA/Industry Meeting On D&A Testing Rule
ARSA Regulatory Alert on meeting
July 18, 2006: ARSA Seeks FAA Interpretation On Whether New D&A Rule Covers Persons Performing Rebuilds/Alteration
ARSA letter to the FAA (.pdf)
August 7, 2006: FAA replies to Pratt & Whitney request for interpretation on whether fabrication of parts for maintenance is considered maintenance
FAA letter to Pratt & Whitney (.pdf)
August 15, 2006: FAA Releases Guidance For New D&A Testing Rule
article, links to guidance
August 30, 2006: ARSA Seeks Clarification From FAA On D&A Guidance Issues
ARSA letter to the FAA (.pdf)
September 22, 2006: ARSA Asks FAA For 9-Month Extension Of D&A Rule Compliance Deadline
article on ARSA request
October 3, 2006: ARSA Asks Court For 9-Month Extension Of D&A Compliance Date
ARSA’s court filing (5.0MB .pdf)
October 20, 2006: Court Denies ARSA Request To Extend D&A Compliance Date; Legal Effort Continues
December 13, 2006: ARSA files its Joint Opening Brief of all Petitioners and Intervenors with the U.S. Court of Appeals for District of Columbia Circuit.
January 25, 2007: FAA files its Brief for the Respondent with the U.S. Court of Appeals for District of Columbia Circuit.
February 8, 2007: The Aircraft Mechanics Fraternal Association (AMFA) files an amicus curiae brief in support of the FAA
February 23, 2007: ARSA files its Joint Reply Brief of all Petitioners and Intervenors with the U.S. Court of Appeals for District of Columbia Circuit.
March 28, 2007: ARSA attorneys present oral arguments against the expansion of D&A Testing Rule in front of U.S. Court of Appeals for District of Columbia Circuit.
July 17, 2007: ARSA receives final opinion from US Court of Appeals for the District of Columbia Circuit.
August 30, 2007: ARSA files a Petition for Rehearing En Banc and Panel Rehearing in US Court of Appeals for the District of Columbia Circuit.
September 21, 2007: US Court of Appeals for the District of Columbia Circuit issues Order denying ARSA’s petition for rehearing.
Denial of petition
October 11, 2007: US Court of Appeals for the District of Columbia Circuit issues final mandate enforcing its July 17, 2007 decision directing the FAA to perform a proper RFA analysis.
February 17, 2011: ARSA files writ of mandamus requesting that the US Court of Appeals for the District of Columbia Circuit compel the FAA to comply with Court’s order and perform a proper RFA analysis.
Writ of Mandamus
March 1, 2011: The US Court of Appeals for the District of Columbia sides with ARSA and commands the FAA to “show cause why the court should not issue the requested writ requiring the FAA to comply with the court’s mandate.”
March 8, 2011: The FAA publishes a supplemental regulatory flexibility determination in the Federal Register.
Supplemental Regulatory Flexibility Determination
April 13, 2011: The US Court of Appeals for the District of Columbia Circuit issues an order commanding the FAA to file regular status reports informing the court of its progress toward publishing a final regulatory flexibility analysis.
May 9, 2011: ARSA submits comments to the FAA’s March 8 supplemental regulatory flexibility determination.
July 12, 2011: The FAA publishes a Final Regulatory Flexibility Determination in the Federal Register in response to ARSA’s May 9, 2011 comments.
Antidrug and Alcohol Misuse Prevention Programs for Personnel Engaged in Specified Aviation Activities; Final Regulatory Flexibility Determination