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FAA, Regulatory, Repair Stations

FAA Drug Testing Under Fire

Many of MARPA’s members are also repair stations, and those that are not generally have repair station customers, so repair station issues can be important to our members.

Many of you may know that the DC Court of Appeals ruled in 2007 that the FAA had failed to provide an adequate Regulatory Flexibility Analysis (RFA) when it extended the air carrier drug testing rules to all tiers of repair stations.  That Court ordered the FAA to publish an appropriate  RFA addressing the impact on repair stations.

Rather than publish the RFA, though the FAA simply recodified the drug-and-alcohol-testing rules (which had been published as appendices to the air carrier operating rules).  The new drug testing rules were republished as a new Part 120 and that part was made explicitly applicable to repair stations who implement a drug testing program.

Recently, the industry sued the FAA, petitioning for a writ of mandamus to compel the FAA to perform the RFA that was ordered in 2007.  On March2, the Court of appeals issued an Order to Show Cause against the FAA.  The Order requires the FAA to explain why the drug-and-alcohol testing rules that apply to repair stations should not be suspended while the Court awaits the RFA.  If the FAA fails to offer an adequate explanation, then it is possible that the Court may suspend application of the drug-and-alcohol-testing rules as they apply to maintenance contractors (including repair stations).

This “Show Cause Order” is an interim order, so it is not intended to be a final disposition; but it certainly raises a lot of questions.  If the drug-and-alcohol-testing rules that apply to repair stations are suspended, then repair stations will have to look to state law to judge the legality of their programs, because federal pre-emption will no longer apply to those programs.  They will also need to work with their testing consortia to be sure that they are removed from DOT testing pools, because having non-DOT regulated personnel in a DOT testing pool can be a regulatory violation.

There is also a question about how the Court’s ultimate order might apply to the recodified rules.  The original rules (found in Parts 135 and 121 of the FAA regulations) were superseded, but the RFA for the new rules had the same legal problems that the original RFA had; so the Order must make it clear whether the new rules are suspended or whether it is only the old rules.

drug testing
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About Jason Dickstein

Mr. Dickstein is the President of the Washington Aviation Group, a Washington, DC-based aviation law firm. He represents several aviation trade associations, including the Aviation Suppliers Association, the Aircraft Electronics Association, the Aircraft Fleet Recycling Association and the Modification and Replacement Parts Association.

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