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's main contention is that subcontractor testing is unnecessary because certificate holders like the airlines and repair stations are already responsible under Part 145 of FAA regulations for the airworthiness of repair work, Filler tells Air Safety Week.There's simply "no value added" in extending testing to subcontractors.
Mike Gonzales, regional flight standards assistant with Professional Airways System Specialists (PASS), says the new rule is "redundant" and will place "undue restrictions" on certificate holders. But the "bottom line" for PASS, which is the union representing FAA inspectors, is that many certificate holders will simply go around the rule. Principally, this will happen by sending even more work overseas to places where there's no such testing or less concern with aviation safety and security. PASS has not joined the petition process against the FAA.
In its original ruling, the FAA responded to ARSA and other groups' contentions that the agency was failing to consider how the new rules would impact the aviation industry. According to the FAA, the "directly regulated employers" only include air carriers and air traffic control facilities not directly operated by the FAA or the military. So, essentially, it's the carriers who must comply with drug and alcohol testing regulations. "Certificated repair stations are contractors, and contractors are not regulated employers."
But "the fact is," ARSA's Filler counters, "if I'm a repair station, and I have 20 airline customers, I must have my own drug testing program." For the FAA to imply otherwise is "ridiculous." The real reason for the "mental gymnastics," he adds, is probably so the agency can avoid considering the effect its rulemaking has on small businesses.
The FAA has said it didn't consider the cost impact on the industry mostly because it considered the new rule to be "merely clarifying." Guidances it issued in the 1990s were "conflicting." Moreover, "many regulated employers and contractor companies have recognized contractors and subcontractors are subject to testing under the regulations."
Also puzzling to ARSA is why the FAA originally said in the late 1980s that subcontractors wouldn't have to be tested. "What's happened since then to make them change 180 degrees?" Filler asks.
On this subject, the FAA admits that after implementing maintenance- worker drug testing in 1989, it initially took the stand in informal guidance documents that subcontracted maintenance workers were not subject to testing "unless they took airworthiness responsibility." In fact, the agency was still reiterating this interpretation into the mid 1990s "on an ad hoc basis" to individuals and firms who requested clarification of the regulations.
But the old interpretation "constricted the potential reach of the regulation, which offered no exceptions for subcontractors who did not take airworthiness responsibility but performed safety-sensitive activities," the agency says. "Accordingly, this guidance was in conflict with the object of the regulations, i.e., ensuring that each person who performs a safety-sensitive function is subject to testing."
Filler also points out another form of inconsistency with the drug- testing regulations, which he says now apply to routine maintenance and preventive maintenance, but not to new manufacturing, rebuilds or alterations. "So if you think about the whole safety rationale FAA is using, you have to shake your head about what's so important from the safety standpoint."
In a related development, the FAA recently put off the effective date of the new rule from April 10 to Oct. 10, because some shops are confused whether the work they do is considered some form of maintenance that requires testing, or manufacturing duties that are exempt from testing .
Finally, Filler also insists there's internal dissent within the FAA over the new rule. The agency's medical staff, who developed the rule, don't have "the technical knowledge of maintenance rules." Meanwhile, the staff who have this type of knowledge don't believe the rule is necessary for ensuring safety.
(Other recent coverage on repair stations also has appeared in Air Safety Week on Jan. 30, and Feb. 6.)
For further information on its final rule, FAA recommends calling Diane J. Wood (for technical information) or Patrice M. Kelly (for legal information), both at (202) 267-8442.
>>Contacts: PASS, (202) 293-7277; Marshall Filler, ARSA, (703) 739 9543, [email protected]; for further information on the final rule<<
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