Join ARSA Ask ARSA Pay ARSA

Court Sides with ARSA on Small Business Issue While Upholding New FAA Drug & Alcohol Rule

ARSA’s lawsuit, initiated in March 2006, which challenged the Federal Aviation Administration (FAA) mandate that anti-drug and alcohol testing programs apply to aviation maintenance contractors “at any tier” received an opinion from the court on July 17, 2007. In a two-to-one decision, the U.S. Court of Appeals for the District of Columbia Circuit agreed with ARSA that the FAA violated the Regulatory Flexibility Act (RFA) by not properly considering the impact of its rule on small businesses. While the Court upheld the agency’s new testing requirements, it remanded the rule, directing the FAA to conduct the proper RFA analysis.

The FAA had determined that repair stations and their subcontractors were not directly affected by the rule and, therefore, the Administration did not need to complete the RFA analysis. The Court disagreed; it ruled that contractors are directly regulated, entitled to the protections of the RFA and it instructed the FAA to conduct the required analysis. In the meantime, the Court allowed the FAA to enforce the final rule even against small businesses. “We plan to keep the agency’s feet to the fire on the Court mandated economic-impact analysis to protect small businesses from undue burdens,” promised Sarah MacLeod, ARSA’s Executive Director.

In a dissenting opinion, Judge David B. Sentelle echoed ARSA’s central contention that employees of subcontractors are not “other air carrier employees” and therefore the FAA’s new testing requirements should be set aside. Judge Sentelle agreed with ARSA’s reasoning that the FAA exceeded its statutory authority under the Federal Aviation Act.

“One of three judges fully embraced our core point that the new rule exceeds the FAA’s legal authority,” said attorney Al Givray. “If we had convinced one more judge, the 2-1 decision would have gone completely in our favor, and the new rule would have been set aside. As it is, we are very pleased that we persuaded the Court that the FAA erred in disregarding the Regulatory Flexibility Act.”

This ruling means that any entity performing a safety-sensitive function (maintenance) for an air carrier at any tier in the contract must continue to comply with the drug and alcohol testing requirements of 14 CFR part 121.

A copy of the court’s opinion may be found here



More from ARSA

2025 Annual Conference – Locking in Speakers

March 18-21, 2025 Event Information | Registration | Sponsors | Hotel (Book by Feb. 21) Arlington, Virginia and Washington, D.C. with Livestream Options Caitlin Locke, executive director of the FAA’s Aircraft Certification…Read More

Training from ARSA’s Experts at New Vertical Aviation Event

Next month, as it prepares for the 2025 ARSA Annual Conference, the association’s team will make a special appearance at the inaugural edition of VERTICON (formerly HELI-EXPO) in Dallas, Texas.…Read More

Industry Input Needed for Restricted Category Listening Sessions

On Jan. 24, the Virginia-based law firm Obadal, Filler, MacLeod, & Klein, P.L.C. launched a survey gathering experience with certification and operation of restricted category aircraft in the United States.…Read More

New Bilateral Oversight Guidance for ASIs

The FAA has announced an amendment to Order 8900.1, Vol. 6, Chap. 9, Sec. 27 clarifying procedures for aviation safety inspectors (ASIs) who oversee domestic repair stations holding foreign certificates…Read More

FAA Opens Workforce Grant Applications for 2025

On Jan 6, the FAA opened applications for its 2025 round of funding available through two aviation workforce grant programs championed by ARSA through multiple congressional reauthorizations of the agency.…Read More
ARSA