Alexandria, Virginia, October 5 -- The U.S. Court of Appeals for the District of Columbia Circuit has issued an interim order that pushes the new FAA drug & alcohol testing rule's compliance date back 10 days, to October 20. The court will use the 10 day extension to take a closer look at an ARSA filing that asks for the compliance date to be pushed back nine months, to July 10, 2007, while the court decides ARSA's full appeal on the legality of the FAA's new rule.
ARSA's filing -- legally an "emergency motion to stay"--was made Tuesday with the intention of relieving industry from having to comply with the new regulation before the court ruled on ARSA's full appeal, filed March 10, asking the court to review the new drug & alcohol (D&A) testing rule.
The FAA last week rejected an ARSA request for a nine-month extension, leading ARSA to file its emergency motion with the court. The agency informed the court that it would consent to the 10-day extension, clearing the way for the court to take the unusual step of issuing an interim order.
"We are pleased by the court's order and appreciate the FAA's consenting to it," said Al Givray, a partner with Jacobs Chase Frick Kleinkopf & Kelley LLC, the firm leading ARSA's court effort against the FAA's new D&A rule. "The 10-day extension will give the court time to study the reasoning behind ARSA's emergency request on why the rule should be suspended for nine more months so the industry and the FAA can work together in clarifying the new rule and the guidance issued so far. Should these clarification efforts fail, ARSA's requested nine-month suspension of the new rule will allow the court to consider the powerful arguments that ARSA and the other petitioners have made in the full appeal that explain why the new rule is poorly written, is not needed, violates present law, and should be struck down."
The court's order, issued October 4, gives the FAA until Friday, October 13, to submit a response to ARSA's emergency motion, and gives ARSA and the other petitioners until Tuesday October 17, to file a reply to the FAA's response.
The Aeronautical Repair Station Association (ARSA) is the only trade association dedicated exclusively to representing the interests of aircraft maintenance and alteration facilities before the Federal Aviation Administration (FAA) and other government agencies in the U.S. and abroad. Its 700 members perform maintenance and alterations on behalf of U.S. and foreign air carriers, as well as other aircraft owners and operators.
The court found that the FAA failed to perform a required FRFA to determine the small business impact of its drug and alcohol testing rules.
ARSA calls the new rule an unnecessary burden that provides no aviation safety-related benefits
The association's action comes in comments to the "supplemental regulatory flexibility determination" issued by the FAA and published in the March 8, 2011 Federal Register.
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...