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

Experiencing FAA Misunderstanding of Rulemaking Communications

On Aug. 22, ARSA offered to help the Office of the FAA’s Chief Counsel correct misunderstanding of ex parte communications during active rulemaking. Such engagement is a method of ensuring…Read More

FAA Releases Limited-function Repair Station Directory

In August, ARSA tested the FAA’s new searchable directory of certificated repair stations. The system, which has been integrated to include all part 141, 142, and 147 in addition to…Read More

Industry Gets Extra Time to Review Records AC

On Aug. 9, ARSA joined 11 other aviation trade associations requesting additional time to comment on the FAA’s Draft Advisory Circular (AC) 43-9D, “Maintenance Records.” The FAA subject matter expert…Read More

Draft Fabrication AC Needs to Wait on ICA ARC

On Aug. 1, 21 representatives of the Instructions for Continued Airworthiness Aviation Rulemaking Committee requested the FAA withdraw Draft Advisory Circular 43-18A. The group’s letter to Associate Administrator for Aviation…Read More

Quick Question – Who’s Driving?

ARSA Executive Director Sarah MacLeod recently saw Pixar’s Inside Out, so the association’s team has been reflecting on how its core emotions – Joy, Sadness, Anger, Disgust, and Fear –…Read More
ARSA