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Court to Monitor FAA’s RFA Compliance

ARSA’s recent challenge regarding the FAA’s failure to perform a court mandated Regulatory Flexibility Act (RFA) analysis of its 2006 drug and alcohol rules has opened a new chapter. On April 13, 2011, the United States Court of Appeals for the District of Columbia Circuit issued an order directing the agency to provide updates to the court every 60 days outlining its progress toward completion of the required RFA analysis. The first status report is due May 31, 2011.

The court’s latest action follows its March 2, 2011 order – issued in response to ARSA’s petition for a writ of mandamus. That order instructed the FAA to explain why it had not performed the final RFA analysis mandated by the court in 2007 and to give reasons for the court to not issue the writ. In response, the FAA apologized for its delay and published a supplemental regulatory flexibility determination in the March 8, 2011 Federal Register as a basis for the court to not take action. Having satisfied the court’s demand to show cause, ARSA’s petition was denied.

The court’s latest ruling forces the FAA to report on its progress toward satisfying the earlier mandate to perform a full RFA analysis, but it lacks additional punitive measures against the agency.

The association is currently in the process of drafting a response to the FAA’s March 8 supplemental regulatory flexibility determination. Those comments will push for FAA accountability in meeting its legal obligations to accomplish a complete RFA analysis.



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