Last year the Aeronautical Repair Station Association (ARSA) filed a lawsuit challenging a new FAA rule that substantially expanded the FAA’s drug and alcohol testing requirements.

The rule extended the testing requirements to employees at subcontractor companies (and to subcontractors of subcontractors at any tier) that repair stations rely on for specialized services.

For example, if a repair station sent a divan to be repaired and that subcontractor sent the fabric to a laundry, the employees of the laundry would be required to comply with drug and alcohol testing requirements. However, FAA regulations already included rules that required the repair station to oversee and remain ultimately responsible for subcontractor maintenance.

According to ARSA, under the new regulation all maintenance subcontractors used by repair stations would be required either to implement a U.S. Department of Transportation-approved drug and alcohol testing program for their employees, agree to be covered by an air carrier or repair station’s program or stop serving the maintenance industry. The fact that aviation work is typically a fraction of business for most subcontractors raised concern that many would simply stop serving the industry.

In spring 2006, ARSA filed a lawsuit in the U.S. Court of Appeals for the District of Columbia Circuit challenging the new rule on several grounds, including FAA’s violation of the Regulatory Flexibility Act (RFA).

In a two-to-one decision issued on July 17, 2007, the Court agreed with ARSA that the FAA violated the RFA by not properly considering the impact on small businesses (such as contractors and subcontractors at any tier, who are directly affected by the new rule). While the Court upheld the agency’s new testing requirements and let the new rule remain in effect, it has remanded the issue to the FAA and demanded that the agency conduct a proper RFA analysis. ARSA continues to monitor the situation.

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