Representatives for the nation's aircraft repair stations are locking horns with the Federal Aviation Administration (FAA) over the agency's desire to have every last subcontracted mechanic undergo drug and alcohol testing.
FAA says its Jan. 10 final rule merely clarifies its current testing regulations, and that such testing for all workers is necessary for aviation safety. But in a court petition filed March 10, the Aeronautical Repair Station Association, Inc. (ARSA) strongly disagrees on the latter point, adding that the new rule is a significant expansion of current regulations and places an undue economic burden on many smaller repair shops.
ARSA, along with several repair stations, including Kent, Wash.-based Pacific Propeller International, LLC, and Fortner Engineering and Manufacturing Inc. of Glendale, Calif., as well as two individuals, have all recently filed similar petitions against the FAA in the U.S. Court of Appeals for the District of Columbia. The various petitions are being combined so the court eventually will decide them all as one case.
These developments follow a recent federal government audit that found a lack of oversight by the FAA and the airlines of non-certificated repair stations (Air Safety Week, Jan. 2). The FAA's new rule and the new court petitions apply only to FAA-certificated facilities in the United States.
ARSA's petition calls the FAA rule "irrational, unreasonable, arbitrary, and capricious." On top of those faults, the rule also exceeds the agency's statutory authority, violates principles of fair notice for new agency actions, and abridges the petitioners' rights under several federal laws, including the U.S. Constitution, the petition says. In short, ARSA and the others are suing the agency to retreat back to what they understand is its current practice, where only direct employees of airlines or repair stations must get such testing.
Because the FAA is being sued, an agency spokeswoman tells Air Safety Week that the FAA can't comment. So, we refer back to the wording of the agency's final rule (in the Jan. 10 Federal Register on p. 1666, FR Doc. 06-205, Docket No. FAA-2002-11301) to glean some of the agency's rationale.
It says, in part, "We believe the safety data showing the number of current positive test results offer strong support for this rulemaking. We do not believe we should wait until there is an actual loss of human life before we take action to ensure the remaining subcontractors who are not already subjected to testing are brought into compliance with the regulations. Only one link in the safety chain would have to fail for an accident to occur."
The agency also cites a commenter who said that the largest number of positive test results have occurred in the pre-employment phase. The FAA says that this means its testing policies have been effective in screening out would- be mechanics who use illegal drugs.
Meanwhile, ARSA's managing director and general counsel, Marshall S. Filler, says the policies also may be effective in driving many smaller shops out of the aircraft-repair business. The larger shops readily accept FAA regulations because aviation work is a majority of their business. But a lot of the subcontractors they use are smaller welding shops or machine shops that do a variety of work. Aviation isn't their main focus of business, and they typically aren't FAA certificated. They're likely to consider that the extra effort and costs of employee testing, along with having new federal regulations factored into their business operations, simply aren't worth it. That would bring the work back to the main contractors, raising costs for airlines and repair shops, and ultimately, to the flying public.
ARSA calls the new rule an unnecessary burden that provides no aviation safety-related benefits
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...
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.