ARSA: Thousands of Small Businesses Will Be Affected
The Federal Aviation Administration (FAA) is preparing to
drastically increase the scope of its antidrug and alcohol misuse
testing program. These rules apply when maintenance or other
safety-sensitive functions are performed in the United States
directly or by contract for US air carriers.
Air carriers frequently utilize direct contractors and
subcontractors to perform maintenance on their aircraft and related
products. A May 17, 2004 FAA "clarification" to its regulations
will extend the testing requirement beyond repair stations
(maintenance providers certificated by the FAA) -- to their
non-certificated contractors and subcontractors. The testing
requirement would apply at any tier of the contract, regardless of
how far the subcontractor was removed from the air carrier.
For example, the proposals would apply to commercial dry
cleaners that clean seats or upholstery following their removal
from aircraft. Also potentially affected are companies that repair
common consumer electronic items, such as VCRs and DVD players, if
they are subsequently installed in aircraft.
Under FAA regulations,
these companies cannot take airworthiness responsibility for the
work they perform because they do not hold an FAA certificate.
Safety is assured, however, because the certificated repair station
remains directly in charge of all work performed by the
non-certificated company. Employees of certificated repair stations
are covered by the drug and alcohol rules when they perform covered
work.
In 2002, the Aeronautical Repair Station Association (ARSA) led
a coalition of 14 aviation industry groups that submitted joint
comments to the FAA pointing out the impracticalities and problems
associated with requiring air carriers and their direct contractors
to ensure that multiple tiers of the maintenance process were part
of an FAA drug and alcohol program.
In the May 17th "Supplemental Notice of Proposed Rulemaking",
the FAA rejected the industry's concerns, claiming that the number
of additional contract providers potentially subject to the rules
is small (less than 300); that the extensive testing requirements
and associated costs already exist, and that therefore the rule is
merely clarifying in nature.
ARSA continues to believe, however, that the expanded testing
program will be costly and impractical, while offering no
meaningful safety benefit:
Far more than the 300 additional companies estimated by the FAA
will have testing obligations. If the contractor performs any
maintenance function for repair stations that perform maintenance
for air carriers, then the contractor must participate in drug and
alcohol testing.
Many contract providers are not fundamentally in the aviation
business. They may choose to stop serving the aviation industry
entirely, rather than face the burdens and costs of employee drug
and alcohol testing.
An air carrier would be
held responsible for the compliance of an entity with which it has
no contractual relationship.
Subcontractors who are not even aware that their work is
aviation maintenance-related would have to drug and alcohol-test
employees.
Even aviation manufacturing employees may be covered by the
testing requirements if they occasionally perform maintenance.
"ARSA is extremely disappointed that the FAA appears determined
to finalize these proposals in spite of the extensive record that
they are not necessary in the interests of safety," according to
ARSA Managing Director & General Counsel Marshall S.
Filler.
"They would impose substantial cost burdens on small businesses
that work primarily in industries other than aviation, create a
logistical nightmare for the airlines and their direct maintenance
contractors and further strain FAA inspector resources. As it did
in 2002, the Association intends to vigorously oppose the FAA
proposals and will be working closely with other industry groups in
an effort to persuade the
FAA to withdraw them."