Regulatory Report

Drug & Alcohol Misuse Prevention for Aviation Maintenance

The great majority of Federal Aviation Administration (FAA) airworthiness directives, rules and other regulatory initiatives rarely provoke legal challenges. Not so in the case of the FAA's final rule on drug and alcohol testing of personnel in "safety sensitive" positions. The rule, which appeared in the January 10 Federal Register [FR Doc 06-205] takes effect April 10.

The Aeronautical Repair Station Association (ARSA), and others, filed a petition March 10 with the U.S. Court of Appeals, seeking a review of the regulations, claiming the FAA seeks to extend drug and alcohol testing to subcontractors at any tier of the maintenance process.

ARSA asserts that the new rules significantly expand upon the current testing regulations by requiring employee testing for thousands of companies that heretofore were not subject to the FAA's drug and alcohol testing regimen. Certificate holders (air carriers and repair stations) meet the testing requirements, and expanding the drug and alcohol testing to second and third tier maintainers adds a "burdensome requirement" that's unjustified, ARSA claims, as the certificate holders must still approve the work of their subcontractors, and these people certifying the work are covered by drug and alcohol testing.

The FAA disagrees, saying in its final rule:

"It would be inconsistent with aviation safety for individuals performing maintenance work within the certificated repair station to be subject to drug and alcohol testing, while individuals performing the same maintenance work under a subcontract would not be subject to drug and alcohol testing. In addition, if drug and alcohol testing could be avoided by simply sending the maintenance work to a subcontractor, a company could form separate subsidiaries within its organization in order to create an internal subcontracting system that avoids drug and alcohol testing."

The FAA explains its actions thusly:

"This final rule does not expand the scope of the FAA-regulated drug and alcohol testing programs. Rather, it clarifies that any individual who performs a safety-sensitive function by contract must be subject to the FAA-regulated drug and alcohol testing requirements, regardless of the tier of the contract under which the individual performs."

A lawyer for ARSA says the rule may be effective on April 10, "but the story doesn't end there - it's just the beginning." Message to FAA: see you in court.