United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 28, 2007 Decided July 17, 2007
No. 06-1091
AERONAUTICAL REPAIR STATION ASSOCIATION, INC. ET AL.,
PETITIONERS
v.
FEDERAL AVIATION ADMINISTRATION,
RESPONDENT
AIRCRAFT MECHANICS FRATERNAL ASSOCIATION,
INTERVENORS
Consolidated with
06-1092
On Petitions for Review of a Final Rule of the
Federal Aviation Administration
Albert J. Givray and Andrew D. Herman argued the cause
for the petitioners. Jere W. Glover and Marshall S. Filler were
on brief.
Edward Himmelfarb, Attorney, United States Department of
Justice, argued the cause for the respondent. Peter D. Keisler,
Assistant Attorney General, Leonard Schaitman, Attorney,
United States Department of Justice, and Paul M. Geier,
2
Assistant General Counsel for Litigation, United States
Department of Transportation, were on brief. Mark W. Pennak,
Attorney, United States. Department of Justice, entered an
appearance.
Lee Seham and James R. Klimaski were on brief for amicus
curiae Aircraft Mechanics Fraternal Association in support of
the respondent.
Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
Dissenting opinion filed by Circuit Judge SENTELLE.
KAREN LECRAFT HENDERSON, Circuit Judge: The
petitioners1 challenge a final rule (2006 Final Rule or Rule) of
the Federal Aviation Administration (FAA) which amends its
drug and alcohol testing regulations, promulgated pursuant to 49
U.S.C. § 45102(a)(1), to expressly mandate that air carriers
require drug and alcohol tests of all employees of its
contractors—including employees of subcontractors at any
tier—who perform safety-related functions such as aircraft
maintenance. Antidrug and Alcohol Misuse Prevention
Programs for Personnel Engaged in Specified Aviation
Activities, 71 Fed. Reg. 1666 (Jan. 10, 2006). The petitioners
challenge the Rule on the grounds that it impermissibly expands
the scope of employees tested in violation of the unambiguous
statutory language of section 45102(a)(1), the Administrative
Procedure Act, 5 U.S.C. §§ 701-06, and the Fourth and Fifth
Amendments to the United States Constitution. In addition,
they challenge the FAA’s conclusion that it was not required to
1
The petitioners are: Aeronautical Repair Station Association, Inc.,
Premier Metal Finishing, Inc., Pacific Propeller International LLC,
Texas Pneumatics Sys., Inc., Solutions Mfg., Inc. and Randall C.
Highsmith. Fortner Eng’g & Mfg., Inc. and Minas Serop Jilizian
intervened as petitioners.
3
conduct a regulatory flexibility analysis under the Regulatory
Flexibility Act (RFA) because the Rule does not have a
significant adverse effect on small entities. For the reasons set
forth below, we uphold the substance of the Rule but reject the
FAA’s RFA determination.
I.
The FAA first promulgated drug testing regulations in 1988
pursuant to the Congress’s general directive in 49 U.S.C. app.
§ 1421(a)(6) (1988) that the Secretary of Transportation
“promote safety of flight of civil aircraft in air commerce” by
prescribing “reasonable rules and regulations, or minimum
standards.” See Anti-Drug Program for Personnel Engaged in
Specified Aviation Activities, 53 Fed. Reg. 47,024 (Nov. 21,
1988) (1988 Rule).2 The 1988 Rule required that each employer
test “each of its employees who performs” one of eight
enumerated “sensitive safety- or security-related” functions, 14
C.F.R. § 21.457 (1992),3 and defined “employee” as “a person
2
In its advance notice of proposed rulemaking, the FAA had
invited comments on both drug and alcohol abuse and regulation, see
1988 Rule, 53 Fed. Reg. at 47,024, but ultimately “excluded the issue
of alcohol testing from th[e] rulemaking for a variety of reasons.”
1988 Rule, 53 Fed. Reg. at 47,048.
3
The eight functions listed were:
a. Flight crewmember duties.
b. Flight attendant duties.
c. Flight instruction or ground instruction duties.
d. Flight testing duties.
e. Aircraft dispatcher or ground dispatcher duties.
f. Aircraft maintenance or preventive maintenance duties.
g. Aviation security or screening duties.
h. Air traffic control duties.
53 Fed. Reg. at 47,058 (codified at 14 C.F.R. pt. 121, app. I § II).
4
who performs, either directly or by contract” any of the
enumerated functions, 14 C.F.R. pt. 121, app. I § II (1992).
In 1991 the Congress enacted the Omnibus Transportation
Employee Testing Act (Omnibus Act), which for the first time
expressly directed the FAA to promulgate alcohol and drug
testing regulations:
The Administrator shall, in the interest of aviation
safety, prescribe regulations within 12 months after
[October 28, 1991]. Such regulations shall establish a
program which requires air carriers and foreign air
carriers to conduct preemployment, reasonable
suspicion, random, and post-accident testing of airmen,
crewmembers, airport security screening contract
personnel, and other air carrier employees responsible
for safety-sensitive functions (as determined by the
Administrator) for use, in violation of law or Federal
regulation, of alcohol or a controlled substance. The
Administrator may also prescribe regulations, as the
Administrator considers appropriate in the interest of
safety, for the conduct of periodic recurring testing of
such employees for such use in violation of law or
Federal regulation.
Pub. L. No. 102-143, tit. v, § 3, 105 Stat. 917, 953 (Oct. 28,
1991) (codified at 49 U.S.C. app. § 1434; recodified, as
amended, at 49 U.S.C. § 45102(a)(1)).
Pursuant to the Omnibus Act, in 1994 the FAA revised its
drug testing regulations, Antidrug Program for Personnel
Engaged in Specified Aviation Activities, 59 Fed. Reg. 42,922
(Aug. 19, 1994) (1994 Drug Rule), and promulgated regulations
for the first time for alcohol testing, Alcohol Misuse Prevention
Program for Personnel Engaged in Specified Aviation, 59 Fed.
Reg. 7380 (Feb. 15, 1994) (1994 Alcohol Rule). Both the 1994
Drug Rule and the 1994 Alcohol Rule required that an
5
“employer” test each covered “employee,” again defined as “a
person who performs, either directly or by contract” any of eight
listed “safety-sensitive” functions, 59 Fed. Reg. at 7390
(alcohol), at 42,928 (drugs). Both rules also listed the same
eight functions, which were substantially the same as those in
the 1988 Rule, see supra note 3:
1. Flight crewmember duties.
2. Flight attendant duties.
3. Flight instruction duties.
4. Aircraft dispatcher duties.
5. Aircraft maintenance or preventive maintenance
duties.
6. Ground security coordinator duties.
7. Aviation screening duties.
8. Air traffic control duties.
59 Fed. Reg. at 7391, 42,928.
On February 28, 2002, the FAA issued a notice of proposed
rulemaking seeking to revise its drug and its alcohol testing
regulations. Antidrug and Alcohol Misuse Prevention Programs
for Personnel Engaged in Specified Aviation Activities, 67 Fed.
Reg. 9366 (Feb. 28, 2002) (NPRM). Significantly, the NPRM
proposed to amend the definition of a covered “employee”
subject to testing as “[e]ach employee who performs a function
listed in this section directly or by contract (including by
subcontract at any tier) for an employer.” 67 Fed. Reg. at 9377
(drugs) (proposed to be codified at 14 C.F.R. pt. 121, app. I
§ III), 9380 (alcohol) (proposed to be codified at 14 C.F.R. pt.
121, app. J § II) (emphasis added). The FAA explained that it
proposed including the italicized language “to clarify that each
person who performs a safety-sensitive function directly or by
6
any tier of a contract for an employer is subject to testing.” 67
Fed. Reg. at 9368 (emphasis added). The FAA maintained that
the added language did not work “a substantive change because
the current rule language states that anyone who performs a
safety-sensitive function ‘directly or by contract’ must be
tested” and “[t]he regulations have always required that any
person actually performing a safety-sensitive function be tested,
and we are proposing to clarify that performance ‘by contract’
means performance under any tier of a contract.” Id. at 9369.
The FAA further explained that it believed the clarification
necessary because of “conflicting guidance provided by the
FAA.” Id.4 The NPRM requested “comment on [its] proposal
to clarify this subject.” Id. at 9370.
In early 2004, after receiving a substantial number of critical
comments, the FAA issued a final rule in which it announced
that, “[i]n order to gather more information on the concerns
expressed by the commenters,” it was “not adopting the
proposed revision in th[e] final rule” but would be “publishing
a Supplemental Notice of Proposed Rulemaking (SNPRM) in
the near future.” Antidrug and Alcohol Misuse Prevention
Programs for Personnel Engaged in Specified Aviation
Activities, 69 Fed. Reg. 1840, 1841 (Jan. 12, 2004).
On May 17, 2004, the FAA published the SNPRM,
addressing the subcontractor issue at length and responding to
comments it had received. Antidrug and Alcohol Misuse
Prevention Programs for Personnel Engaged in Specified
Aviation Activities, 69 Fed. Reg. 27,980 (May 17, 2004). The
SNPRM again proposed adding the “subcontract at any tier”
language and reopened the subject for public comment.
The 2006 Final Rule, issued January 10, 2006, amended the
testing regulations, as proposed in the NPRM and the SNPRM,
4
On the “conflicting guidance,” see infra Part IV.B.1.
7
to require testing employees who perform the listed functions
“directly or by contract (including by subcontract at any tier).”
Antidrug and Alcohol Misuse Prevention Programs for
Personnel Engaged in Specified Aviation Activities, 71 Fed.
Reg. 1666, 1676, 1677 (Jan. 10, 2006). In addition, the FAA
certified that the 2006 Final Rule “will not have a significant
economic impact on a substantial number of small entities” and
that it was therefore “not required to conduct an RFA analysis.”
71 Fed. Reg. at 1674.
The petitioners filed petitions for review on March 10 and
March 13, 2006.
II.
The petitioners challenge the 2006 Final Rule on four
grounds. We address each ground separately.
A. Statutory Authority
First, the petitioners assert that the scope of employee testing
expressly required under the 2006 Final Rule—including
employees of subcontractors “at any tier”—exceeds the FAA’s
statutory authority under the Omnibus Act. We review the
FAA’s interpretation of the statutory language under the familiar
two-step framework of Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984). Under
Chevron, we ask first “whether Congress has directly spoken to
the precise question at issue”; if it has, “that is the end of the
matter” and “the court, as well as the agency, must give effect
to the unambiguously expressed intent of Congress.” Chevron,
467 U.S. at 842-43. If, however, “the statute is silent or
ambiguous with respect to the specific issue, the question for the
court is whether the agency’s answer is based on a permissible
construction of the statute.” Id. at 843. The Omnibus Act
directed the FAA to establish regulations requiring testing of
“airmen, crewmembers, airport security screening contract
personnel, and other air carrier employees responsible for
8
safety-sensitive functions (as determined by the Administrator).”
105 Stat. at 953. We conclude that the statutory language is
ambiguous as to whether the testing requirement applies to
employees of all subcontractors, at whatever tier, and that the
FAA reasonably construed the statute under the second step of
Chevron to determine that it does.
1. “Other air carrier employees”
First, the FAA reasonably concluded that the phrase “other
air carrier employees” can include employees of an air carrier’s
contractors as well as its direct employees. Although not
perhaps its most common meaning, “employee” can be used to
refer to an employee of a contractor as well as to an employer’s
direct employee. See Wash. Metro. Area Transit Auth. v.
Johnson, 467 U.S. 925, 933 (1984) (while “word ‘employee’
denotes a contractual relationship and a contractor never is
contractually bound to the employees of a subcontractor,”
general contractor and its subcontractor’s employees were held
to be “employer” and “employees” under section 5(a) of
Longshoremen’s and Harbor Workers’ Compensation Act, 33
U.S.C. § 905(a), based on statute’s language and history
(internal quotation omitted)). Indeed, the language of the
Omnibus Act indicates the Congress may have intended that
“employee” have just such an expansive meaning. On its face,
the Omnibus Act as initially enacted expressly required testing
employees of certain contractors (in addition to direct
employees), namely, “airport security screening contract
personnel.” 105 Stat. at 953 (emphasis added). Further, the
phrase “and other air carrier employees,” immediately following
the list of the three specifically enumerated testing categories,
suggests that the Congress considered “airport security
screening contract personnel” to be employees just as it did the
other two listed classes (“airmen” and “crewmembers”).5 Id.
5
In 2001, the Congress enacted the Aviation and Transportation
9
(emphasis added). Else the word “other,” used in the sense of
“more” or “additional,” see Webster’s Third New Int’l
Dictionary 1598 (1993), would have been entirely inappropriate.
See also S. Rep. No. 102-54, at 18 (May 2, 1991) (“groups of
employees required to be covered by the new testing programs
include airmen, crew members, and airport security screening
contract personnel”) (emphases added). The juxtaposition of
the statutory terms likewise suggests that the class of “other air
carrier employees” subject to testing can be read to include other
contractors’ employees—a point the petitioners do not dispute.
See Pet’rs Br. at 9 (“A person need not be on an air carrier’s
payroll to qualify as an ‘air carrier employee.’ The industry, for
example, has long accepted that employees of certificated repair
stations may meet this description . . . . ”). They do, however,
vigorously contest that the phrase includes employees of all
subcontractors (at whatever tier, whether or not “certificated”),
contending instead that the phrase cannot reasonably embrace
employees of “noncertificated” subcontractors. Before
addressing their argument, we provide some background on the
FAA’s certificated maintenance program.
Security Act (ATSA), Pub. L. No. 107-71, 115 Stat. 597 (2001),
which “creat[ed] a federal workforce to screen passengers and cargo
at commercial airports,” Am. Fed’n of Gov’t Employees v. Loy 367
F.3d 932, 934 (D.C. Cir. 2004). Accordingly, it amended the alcohol
and drug testing statutes by striking “contract personnel,” “contract
employee” and “contract employees” throughout Chapter 451 of title
49 of the U.S. Code (including section 45102(a)(1)’s reference to
“airport security screening contract personnel”) and replacing the
terms, respectively, with “personnel,” “employee” and “employees.”
ATSA § 139, 115 Stat. at 640. There is no indication the Congress
intended the amendments to preclude continued treatment of
contractors’ employees as air carriers’ employees subject to testing, as
they were treated under the 1988 Rule and the 1994 Rule, both of
which defined a covered “employee” as “a person who performs,
either directly or by contract,” one of the eight listed functions.
10
As the petitioners explain, air carriers “routinely” contract
with repair stations that are “certificated” under 14 C.F.R. ch. I,
subch. H, pt. 145. Pet’rs Br. at 7. A Part 145 repair station is
authorized to “[p]erform maintenance, preventive maintenance,
or alterations” on aviation components or to “[a]rrange for
another person,” that is, a subcontractor, whether certificated or
not, “to perform the maintenance.” 14 C.F.R. § 145.201(a)(1)-
(2).6 If the subcontractor is not certificated, the certificated
repair station “must ensure that the noncertificated person
follows a quality control system equivalent to the system
followed by the certificated repair station,” id. § 145.202(a)(2),
and must approve the aviation component for return to service,
see id. §§ 43.7, 145.217(b) (“A certificated repair station may
contract a maintenance function pertaining to an article to a
6
Section 145.201(a) provides:
(a) A certificated repair station may—
(1) Perform maintenance, preventive
maintenance, or alterations in accordance with part
43 on any article for which it is rated and within the
limitations in its operations specifications.
(2) Arrange for another person to perform the
maintenance, preventive maintenance, or alterations
of any article for which the certificated repair station
is rated. If that person is not certificated under part
145, the certificated repair station must ensure that
the noncertificated person follows a quality control
system equivalent to the system followed by the
certificated repair station.
(3) Approve for return to service any article for
which it is rated after it has performed maintenance,
preventive maintenance, or an alteration in
accordance with part 43.
45 C.F.R. § 145.201(a)(1-3).
11
noncertificated person provided—(1) The noncertificated person
follows a quality control system equivalent to the system
followed by the certificated repair station; (2) The certificated
repair station remains directly in charge of the work performed
by the noncertificated person; and (3) The certificated repair
station verifies, by test and/or inspection, that the work has been
performed satisfactorily by the noncertificated person and that
the article is airworthy before approving it for return to
service.”). With this background, we first address the FAA’s
interpretation of the statutory language as extending to
employees of subcontractors generally, then consider the
petitioners’ objection to employees of noncertificated
subcontractors in particular.
First, as to employees of subcontractors generally, having
concluded that the statute itself expressly contemplates testing
certain contractors’ employees (“airport security screening
contract personnel”) and that the statutory phrase “other air
carrier employees” may include contractors’ employees, we see
nothing in the statutory language that prevents the FAA from
also treating a subcontractor’s employees as statutory
“employees” of air carriers. The Omnibus Act itself does not
mention subcontractors and we believe the FAA, under
Chevron step 2, reasonably included subcontractors among the
contractors whose employees are “other air carrier employees”
subject to testing. The FAA soundly reasoned that “it is
important that individuals who perform any safety-sensitive
function be subject to drug and alcohol testing under the FAA
regulations” and that to conclude otherwise “would be
inconsistent with aviation safety.” 2006 Final Rule, 71 Fed.
Reg. at 1667.
As for employees of “noncertificated” subcontractors in
particular, we believe that they too may be reasonably treated as
“other air carrier employees” and thus subject to mandatory
testing under the Omnibus Act. The petitioners do not object to
12
the FAA’s requiring drug and alcohol testing of certificated
subcontractors’ employees, noting that the aviation industry “has
long accepted that employees of certificated repair stations may
meet this description because they work in the aviation industry,
deal directly and routinely with air carriers, are heavily regulated
by the FAA, and (like an air carrier's own specially licensed
employees) are involved in the critical function of making
airworthiness determinations,” Pet’rs Br. at 9. They insist,
however, that employees of “noncertificated” subcontractors
may not be considered air carrier “employees” subject to
mandatory testing and they offer what may well be a valid
ground for treating certificated and non-certificated
subcontractors differently, namely, that “[f]or certificated
entities, . . . drug and alcohol testing logically operates as part
and parcel of an already-comprehensive program of government
supervision” so that “the certificated firm—precisely because it
chooses to be certificated—can be seen as acting as an alter ego
of the air carrier, so that its workers can be fairly characterized
as ‘air carrier employees.’ ” Id. at 15. This distinction,
however, is not mandated by the language of section
45102(a)(1) which says nothing about certification vel non.
What section 45102(a)(1) does require is that the FAA
Administrator determine those “safety-sensitive
functions”—performed by other than “airmen, crewmembers,
[and] airport security screening contract personnel”—subject to
drug and alcohol testing and the FAA has consistently and
reasonably included aircraft maintenance work among such
functions. See 1994 Alcohol Rule, 59 Fed. Reg. at 7391
(including aircraft maintenance or preventive maintenance
duties among “safety-sensitive” duties); 1994 Drug Rule, 59
Fed. Reg. at 42,928 (same); cf. 1998 Rule, 53 Fed. Reg. at
47,058 (including “maintenance or preventive maintenance”
among “sensitive safety- or security-related” duties subject to
drug testing). It is not unreasonable, then, to construe the
statute, as the FAA does, to require testing of maintenance
13
employees, certificated or not, in order to ensure that all
maintenance work, by whomever performed, is done properly
and that each aviation component is safe for aviation use. In the
FAA’s view, 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.”
71 Fed. Reg. at 1670. The petitioners nonetheless cite four
“principles of statutory interpretation,” Pet’rs Br. at 11, which,
they contend, undermine the FAA’s interpretation. We find
none of them compelling.
The petitioners first assert the FAA’s interpretation “would
offend the basic principle that statutes ‘must be harmonized’ ”
because it “runs headlong into a robust congressional policy of
promoting the nation’s small businesses.” Pet’rs Br. at 11
(quoting 82 CJS Statutes § 352; citing 15 U.S.C. § 631(a) (“It is
the declared policy of the Congress that the Government should
aid, counsel, assist, and protect, insofar as is possible, the
interests of small-business concerns . . . .”)). We note no
disharmony in the FAA’s regulation. The Congress has
provided a specific statutory procedure under the RFA to ensure
that “agencies shall endeavor, consistent with the objectives of
the rule and of applicable statutes, to fit regulatory and
informational requirements to the scale of the businesses,
organizations, and governmental jurisdictions subject to
regulation.” RFA, Pub. L. No. 96-354, § 2(b), 94 Stat. 1164,
1165 (1980). This is the procedure which the Congress
mandated to harmonize the express interest advanced in the
Omnibus Act’s testing provisions—“the interest of aviation
safety,” 49 U.S.C. § 45102(a)(1)—with the concerns of small
businesses. If the FAA properly follows the procedure in its
rulemaking—a matter we address infra Part II.D—it discharges
its responsibility in this regard.
14
The petitioners next assert the FAA’s interpretation will
impermissibly “ ‘imping[e] upon important state interests,’ ”
Pet’rs Br. at 11 (quoting BFP v. Resolution Trust Corp., 511
U.S. 531, 544 (1994)), because “extension of the federal
government’s drug-and-alcohol testing regime to noncertificated
subcontractors necessarily will disrupt state choices about both
(i) the privacy interests of local employees and (ii) the business
prerogatives of local employers,” id. (state statutory citations
omitted). This argument fails, however, because the Omnibus
Act expressly preempts state drug testing laws. See 49 U.S.C.
§ 45106(a) (“A State or local government may not prescribe,
issue, or continue in effect a law, regulation, standard, or order
that is inconsistent with regulations prescribed under this
chapter.”).
Third, the petitioners contend that the FAA’s interpretation
“would violate the rule that: ‘A statute must be construed, if
fairly possible, so as to avoid not only the conclusion that it is
unconstitutional but also grave doubts upon that score,’ ” relying
on its contention that the 2006 Final Rule violates the Fourth
Amendment. Pet’rs Br. at 12 (quoting Almendarez-Torres v.
United States, 523 U.S. 224, 237 (1998)). As our discussion
below reveals, however, the petitioners’ Fourth Amendment
challenge offers no “grave concerns” about the 2006 Final
Rule’s constitutionality. See infra Part II.C.
Finally, the petitioners assert the FAA’s interpretation
ignores the “context” of the legislation—namely, the “major
legal and political concerns” that widespread drug testing of
employees might raise, Pet’rs Br. at 13—and the Congress’s
own admonition that “the Administrator be very selective in
extending the coverage of this provision to other categories of
air carrier and FAA employees” and that “[the statute] should
not be treated as an open authorization to test all aviation
industry employees.” S. Rep. No. 102-54, at 18 (May 2, 1991).
In the quoted report, however, the Congress singled out
15
“mechanics” as among the employees required to be tested “[a]s
defined in statute and regulation.” Id. at 17. And nowhere does
the legislative history distinguish between mechanics employed
by certificated subcontractors and those employed by
noncertificated subcontractors.
2. “Employees Responsible for Safety-Sensitive
Functions”
Second, the petitioners assert that the FAA exceeded its
statutory authority because noncertificated subcontractors’
employees are not “employees responsible for safety-sensitive
functions” as required under section 45102(a)(1). They argue
that under FAA regulations, if “a certificated repair station has
used a noncertificated subcontractor, only the certificated repair
station is ‘responsible’ for the safety aspects of the
subcontractor's work.” Pet’rs Br. at 18 (citing 14 C.F.R.
§ 145.217(b)(2), (3) (requiring certificated repair station to
verify satisfactory performance of subcontracted noncertificated
work and airworthiness of aviation component before return to
service)). The FAA responds that “responsible for” as used in
section 45102(a)(1) does not mean “legally responsible for,” as
the petitioners argue, but simply “the “agent” or “cause,” in this
case denoting the person performing the maintenance work.
FAA Br. at 26-27. The FAA’s interpretation of the phrase
“responsible for” is a permissible one. See Webster’s Third
New Int’l Dictionary 1935 (1993) (defining “responsible” as
“answerable as the primary cause, motive, or agent”); Hines v.
Blue Cross Blue Shield of Va., 788 F.2d 1016, 1018 (4th Cir.
1986) (“The ordinary meaning of a ‘person responsible for such
injuries’ is the person who caused the injuries, who did the
damage.”). Because the Congress expressly directed the FAA
Administrator to determine by regulation those “other air carrier
employees responsible for safety-sensitive functions,” we defer
to the FAA’s interpretation. See Envtl. Def. v. EPA, 2007 WL
1745307, at *7 (D.C. Cir. 2007) (if Congress “ ‘has explicitly
16
left a gap for the agency to fill,’ ” we uphold agency’s
“reasonable statutory interpretation”) (quoting Chevron, 467
U.S. at 843-44).
B. Administrative Procedure Act
Next, the petitioners contend that requiring testing of
maintenance employees of all subcontractors violates the APA
in three respects. We disagree on all counts.
1. Notice
The petitioners contend the FAA’s “mischaracterization” of
the new regulatory language as a “clarification” “tainted all
aspects of the rulemaking process with error,” Pet’rs Br. at 29,
and, in particular, “rendered the agency’s notice of proposed
rulemaking misleading and thus procedurally improper,” id. at
32. There is some substance to the petitioners’ claim that the
inclusion in the 2006 Final Rule of the “subcontract at any tier”
language is more than simply a “clarification,” as the FAA
repeatedly dubbed it. See, e.g., 2006 Final Rule, 71 Fed. Reg. at
1666, 1667, 1668, 1669, 1670. The FAA concedes that its own
informal guidance, to which it adhered until the mid-1990s, took
the position that employees of noncertificated subcontractors did
not have to be tested. See NPRM, 67 Fed. Reg. at 9369-70;
2006 Final Rule, 71 Fed. Reg. at 1670.7 And it appears that any
subsequent guidance to the contrary may not have been
effectively disseminated. See, e.g., SNPRM, 67 Fed. Reg. at
27,985 (“Although we believe that we are merely clarifying the
regulations, we recognize that, due to the previous conflicting
7
The 2006 Final Rule states: “As we acknowledged in the NPRM
and SNPRM preambles, some of our early guidance only required
subcontractors who took airworthiness responsibility to be subject to
drug and alcohol testing. By the mid 1990s, the guidance we
developed eliminated the airworthiness responsibility component and
followed the rule language explicitly.” 71 Fed. Reg. at 1670.
17
guidance, some companies with existing programs and some
non-certificated contractors may have to modify their current
alcohol misuse prevention and antidrug programs.”). Thus, the
additional language may more accurately be viewed as a choice
between two conflicting positions than as a clarification.
Nonetheless, the alleged “mischaracterization” does not warrant
overturning the 2006 Final Rule. The FAA went out of its way
to ensure that interested parties had the opportunity to
participate and comment in the rulemaking—to the point of
issuing the SNPRM seeking additional comment, and thereby
delaying issuance of a final rule, precisely because of the
conflicting guidance and possible consequent confusion.
See SNPRM, 69 Fed. Reg. at 27,980-81. As a result, the entire
air carrier industry, of which the petitioners are part, was well
aware of the rulemaking and its substance and cannot reasonably
claim ignorance of the proceeding or inadequate opportunity to
comment. “If anything, [the FAA proceedings] provided
Industry with a far greater opportunity to participate in the
rulemaking than a plain vanilla notice-and-comment
proceeding.” Natural Res. Def. Council, Inc. v. EPA, 822 F.2d
104, 121 (D.C. Cir. 1987). Thus, “the parties had abundant
opportunity to comment on the proposed rule” and “any error
was harmless.” Id.8
2. Arbitrary and Capricious Standard
The petitioners assert the 2006 Final Rule violates the
APA’s proscription against arbitrary and capricious rulemaking
in two respects. First, they claim the 2006 Final Rule is
8
The petitioners also contend the alleged mischaracterization
resulted in “substantive analytical error,” Pet’rs Br. at 32, asserting it
affected the FAA’s estimate of the Rule’s costs to the industry. This
issue can be resolved on remand when the FAA reexamines the
economic impact of the Rule on small business entities under the
RFA. See infra Part II.D.
18
arbitrary because it is inconsistent with the FAA’s “overarching
regulatory scheme” for maintenance and certification. Pet’rs Br.
at 25. The petitioners maintain that because only certificated
persons can perform maintenance under 14 C.F.R. § 43.3,
employees of noncertificated subcontractors cannot perform
“maintenance” but only “maintenance functions.” But the
FAA’s regulations permit a certificated repair station to contract
out maintenance work it would otherwise have performed
provided the certificated entity performs an airworthiness “sign-
off” on the work before the component is returned to service.
See 14 C.F.R. § 145.217. The task performed by subcontractors
is no less safety-sensitive for being contracted out to another
entity.
Second, the petitioners contend the FAA did not adequately
explain the need to test all subcontractors’ employees. We
disagree. As noted above, the FAA reasonably determined it
“would be inconsistent with aviation safety” to treat employees
of certificated and noncertificated contractors differently given
that they all perform the safety-sensitive function of
maintenance. 71 Fed. Reg. at 1670. Ensuring that front-line
maintenance workers do not make errors on account of drug or
alcohol use makes it less likely that such errors will compromise
air safety.
The petitioners reply with four reasons they claim testing is
not necessary. They first contend there is “no evidence that any
accident has resulted from drug or alcohol use by any worker
employed by any noncertificated subcontractor.” Pet’rs Br. at
34-35. Nonetheless, they acknowledge that “testing has
revealed drug and alcohol use in the past, and expanded testing
will sometimes turn up such use among workers at the
noncertificated subcontractor level.” Pet’rs Br. at 34. Thus, it
may be only a matter of time before an accident attributable to
substance abuse occurs. We do not believe the FAA must—or
should—wait until then. Cf. Nat’l Fed’n of Fed. Employees v.
19
Cheney, 884 F.2d 603, 610 (D.C. Cir. 1989) (“It is readily
apparent that the Army has a compelling safety interest in
ensuring that the approximately 2,800 civilians who fly and
service its airplanes and helicopters are not impaired by drugs.
Employees in each of the covered positions—air traffic
controllers, pilots, aviation mechanics and aircraft
attendants—perform tasks that are frought with extraordinary
peril: A single lapse by any covered employee could have
irreversible and calamitous consequences.”).
The petitioners’ second reason relates to their contention that
the subcontractor testing requirement is redundant given the
airworthiness review required to be performed by a certificated
repair station that subcontracts a maintenance task. We do not
believe, however, it is arbitrary to impose a second line of
defense, involving the very employees performing the repairs,
to further promote air carrier safety. See 2006 Final Rule, 71
Fed. Reg. at 1669 (“While there might be redundancies built into
the maintenance system, the supervisory and other quality
assurance processes involved in aviation maintenance do not
constitute a substitute for the protections afforded by drug and
alcohol testing. Therefore, we will continue to require
subcontractors be subject to drug and alcohol testing.”).9
The petitioners next reason that the FAA should have
considered alternative “less restrictive forms of regulation.”
Pet’rs Br. at 36. The Supreme Court, however, has “made clear
that the reasonableness of a particular technique does not
9
Further, the claimed redundancy has always been present for
noncertificated employees of a certificated contractor (or of an air
carrier itself) who are subject to testing notwithstanding their work is
checked by certificated employees. See 2006 Final Rule, 71 Fed. Reg.
at 1669-70 (“Within certificated repair stations, there are
non-certificated individuals such as mechanic's helpers, who have
been subject to testing for more than 15 years.”)
20
‘ “necessarily or invariably turn” ’ on the existence of less
intrusive alternatives,” Nat’l Fed’n of Fed. Employees, 884 F.2d
at 610 (quoting Skinner v. Ry. Labor Executives’ Ass’n, 489
U.S. 602, 629 n.9 (1989)).
Finally, the petitioners contend the 2006 Final Rule will
have a “net negative safety impact,” Pet’rs Br. at 37 (emphasis
in original), because it will divert inspection resources from
employees of certificated contractors and subcontractors and
drive away both qualified, experienced noncertificated
subcontractors and their skilled employees. The petitioners,
however, offer no evidentiary support for this claim (nor did so
before the FAA) and we therefore reject it.
3. Comments
The petitioners also contend the FAA failed to respond
adequately to comments on the 2006 Final Rule’s impact on
industry business costs and employees’ privacy costs. We
conclude the FAA’s response was adequate.
With regard to the industry costs, the petitioners rely in
particular on an industry survey they submitted to the FAA,
along with an analysis of it by “a distinguished aviation industry
economist,” Pet’rs Br. at 39, which they claim contradicts the
FAA’s assessment that “none of the commenters opposing the
proposal provided specific data challenging the FAA's
fundamental economic assumptions,” 2006 Final Rule, 71 Fed.
Reg. at 1667. Yet immediately following the quoted statement,
the 2006 Final Rule went on to note that “[t]he regulatory
evaluation accompanying this final rule specifically addresses
the comments about costs and benefits.” Id. In the cited
evaluation, the FAA responded at length to the information the
commenters submitted, finding, inter alia, that “most of the
survey information” was not “useful or credible,” JA 112, and
rebutting the expert’s opinions, JA 113-15.
21
With regard to employees’ privacy interests, the petitioners
assert the FAA ignored comments complaining that subjecting
employees of all subcontractors to the testing requirements will
“trigger[] countless invasions of privacy through the
administration of preemployment, reasonable-suspicion,
incident-based, and ongoing random testing, including for
employees with flawless past work records and no hint of prior
substance abuse.” Pet’rs Br. at 41. Again, the FAA responded,
albeit succinctly: “[T]he issues regarding invasion of privacy
were resolved more than 15 years ago when the drug testing
regulation carefully balanced the interests of individual privacy
with the Federal government's duty to ensure aviation safety.
The purpose of this rulemaking is not to reopen the long-settled
issue of invasion of privacy.” 71 Fed. Reg. at 1668. The
petitioners respond that the 2006 Final Rule “presents much-
heightened privacy concerns,” Pet’rs Br. at 22, but do not
explain precisely what the heightened concerns are or point to
comments that do so. To the extent the purported expansion of
the testing class affects privacy rights, we address this issue in
our Fourth Amendment discussion. See infra Part II.C.
C. Constitutional Challenges
The petitioners raise two constitutional challenges to the
2006 Final Rule, alleging the FAA violated the Due Process
Clause of the Fifth Amendment and the Fourth Amendment’s
guarantee against unreasonable search and seizure. We reject
each challenge in turn.
The petitioners first claim the 2006 Final Rule, insofar as it
extends the testing to employees of noncertificated
subcontractors, is so vague as to violate due process because it
is unclear what constitutes “maintenance” for which testing is
required—and, in particular, where the FAA draws the line
between “maintenance” and “preventive maintenance,” for
which testing is not required. See 14 C.F.R. § 1.1 (defining
“maintenance” as “inspection, overhaul, repair, preservation,
22
and the replacement of parts, but exclud[ing] preventive
maintenance”). Whatever uncertainty exists regarding the
meaning of “maintenance,” however, existed before—and,
according to the petitioners, was enhanced by guidance
disseminated after— the 2006 Final Rule issued and is therefore
not attributable to it. In any event, the court “allow[s] greater
leeway for regulations and statutes governing business activities
than those implicating the first amendment”—“no more than a
reasonable degree of certainty can be demanded.”
Throckmorton v. NTSB, 963 F.2d 441, 445 (D.C. Cir. 1992)
(internal quotations & citations omitted). In this case,
employers can clarify the term’s meaning as they always
have—by recourse to the written guidance which the FAA
routinely provides on testing issues raised by interested parties.
See, e.g., JA 175, 180; Pet’rs Br. at 27-28 (noting guidance on
meaning of “maintenance” issued since 2006 Final Rule). Thus,
“the regulated enterprise” has “the ability to clarify the meaning
of the regulation by its own inquiry, or by resort to the
administrative process.” Vill. of Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 498 (1982).
The petitioners next contend the 2006 Final Rule’s drug
testing requirement subjects employees of noncertificated
subcontractors to unreasonable searches in violation of the
Fourth Amendment. Again we disagree.
In National Federation of Federal Employees v. Cheney, 884
F.2d 603 (D.C. Cir. 1989), the court upheld against a Fourth
Amendment challenge the U.S. Army’s practice of subjecting
civilian aviation maintenance personnel to compulsory, random
toxicological urine testing because the Army had a compelling
interest in ensuring air safety given “the quintessential risk of
destruction to life and property posed by aviation.” 884 F.2d at
610. The same justification exists here. Nonetheless, the
petitioners offer three grounds for finding the testing program
unconstitutional.
23
First, the petitioners assert that the employees subject to
testing are “ordinary citizens.” The same is true, however, of
the employees of certificated air carrier contractors and
subcontractors and was true of the civilian employees in
National Federation. Yet the petitioners do not suggest these
groups may not constitutionally be tested.
Second, the petitioners object to the expansive scope of the
testing insofar as it applies to all maintenance work, all
employees who “participate” in the work and, especially, to
current employees of noncertificated subcontractors. These
objections applied as well to employees of a certificated
contractor or subcontractor when they first became subject to
testing in the late 1980s. Further, as to the first objection
specifically, as indicated previously, the FAA can work out
through guidance and consultation with subcontractors (as it has
with certificated contractors and subcontractors) what is and is
not test-triggering “maintenance” work. Further, as to the third
objection, while testing of incumbents may as a general matter
require a closer relationship between the employee’s job and the
government interest served than does testing of new applicants,
see Stigile v. Clinton, 110 F.3d 801, 805-06 (D.C. Cir. 1997);
Willner v. Thornburgh, 928 F.2d 1185, 1188 (D.C. Cir. 1991),
the nexus between aircraft mechanical work and aviation safety
is sufficient, as our decision in National Federation made clear.
Third, the petitioners argue, as earlier, that the additional
testing “simply ‘is not needed’ ” in light of the airworthiness
testing all aviation components undergo before being placed in
service. Pet’rs Br. at 46 (quoting Chandler v. Miller, 520 U.S.
305, 320 (1997)). We reject this argument here for the same
reasons given earlier. See supra Part II.B.2. Because of “the
quintessential risk of destruction to life and property” posed by
substance impaired lapses by maintenance workers at any tier,
the testing is justified under National Federation.
24
D. Regulatory Flexibility Act
Last, we address the petitioners’ RFA challenge. Under the
RFA an agency required to file a notice of proposed rulemaking
“shall prepare and make available for public comment an initial
regulatory flexibility analysis,” which “shall describe the impact
of the proposed rule on small entities.” 5 U.S.C. § 603(a).
Along with the final rule, “the agency shall prepare a final
regulatory flexibility analysis” which “shall contain,” inter alia,
(2) a summary of the significant issues raised by the
public comments in response to the initial regulatory
flexibility analysis, a summary of the assessment of the
agency of such issues, and a statement of any changes
made in the proposed rule as a result of such comments;
[and]
...
(5) a description of the steps the agency has taken to
minimize the significant economic impact on small
entities consistent with the stated objectives of
applicable statutes, including a statement of the factual,
policy, and legal reasons for selecting the alternative
adopted in the final rule and why each one of the other
significant alternatives to the rule considered by the
agency which affect the impact on small entities was
rejected.
Id. § 604(a). These requirements, however, “shall not apply to
any proposed or final rule if the head of the agency certifies that
the rule will not, if promulgated, have a significant economic
impact on a substantial number of small entities.” Id. § 605(b).
In the NPRM, the FAA performed a tentative RFA analysis
and counted among RFA small entities both air carriers and Part
145 repair stations but, because it was “unable to determine how
many of the 2,412 part 145 repair stations are considered small
25
entities,” it “call[ed] for comments and request[ed] that all
comments be accompanied by clear documentation.” 67 Fed.
Reg. at 9376.
In the SNPRM, the FAA determined that “the small entity
group is considered to be part 145 repair stations,” 69 Fed. Reg.
at 27,986, but still “unable to determine how many of the part
145 repair stations and their subcontractors are considered small
entities,” concluded that “[m]ost, if not all [non-certificated
maintenance contractors] would be considered small entities,”
id. Based on its calculation of annualized costs of less than 1%
of annual median revenue, the FAA stated it “believe[d] that this
proposed action would not have a significant economic impact
on a substantial number of small entities” but “solicit[ed]
comments on this determination, on these assumptions, on the
annualized cost per company, and on their annual revenue.” Id.
After receiving comments, the FAA took a different tack in
the 2006 Final Rule and “disagree[d]” with “commenters who
raised RFA issues,” asserting that contractors are not among
entities regulated under the testing regulations for the purpose of
the RFA. 71 Fed. Reg. at 1673. The FAA noted that “the
directly regulated employers are: Air carriers operating under 14
CFR parts 121 and 135; § 135.1(c) operators; and air traffic
control facilities not operated by the FAA or by or under
contract to the U.S. military,” who “must conduct drug and
alcohol testing under the FAA regulations.” Id. “For drug and
alcohol testing purposes, certificated repair stations are
contractors, and contractors are not regulated employers.” Id.
(citing 14 CFR pt. 121, app. I, § II (defining “employer”); id.
app. J, § I(D) (same)). Accordingly, the FAA concluded it was
“not required to conduct an RFA analysis, including considering
significant alternatives, because contractors (including
subcontractors at any tier) are not the ‘targets’ of the proposed
regulation, and are instead indirectly regulated entities.” Id. at
1674. The petitioners contend the FAA’s determination is
26
incorrect. We agree with the petitioners that the contractors and
subcontractors are regulated employers and that the RFA
therefore requires that the FAA consider the economic impact of
the 2006 Final Rule on them. In reviewing this conclusion, we
do not defer to the FAA’s interpretation of the RFA—and
specifically whether contractors and subcontractors are
“regulated” entities directly affected by the regulations—
because the FAA does not administer the RFA. See Am.
Trucking Ass’ns v. EPA, 175 F.3d 1027, 1044 (D.C. Cir. 1997)
(no deference to EPA or SBA interpretation of RFA), modified
in other respect, 195 F.3d 4 (D.C. Cir. 1999), reversed in other
respect, Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001).
In making its determination, the FAA relied on a line of
decisions in which this court held that under the RFA the
regulating agency need consider only the economic impact of
agencies directly affected and regulated by the subject
regulations. We find the situation here materially different from
the cases the FAA cites.
Initially, in Mid-Tex Electric Cooperative v. FERC, 773 F.2d
327 (1985), we reviewed a challenge by wholesale customers to
a rule permitting utilities to recover costs and held that “FERC
correctly determined that it need not prepare a regulatory
flexibility analysis” because the regulated utilities, which were
subject to the rule, were not small entities, while the wholesale
customers, many of whom were small entities, were not
regulated by the rule. 773 F.2d at 343. We explained “it is clear
that Congress envisioned that the relevant ‘economic impact’
was the impact of compliance with the proposed rule on
regulated small entities,” id. at 342. That is, the RFA is satisfied
if the agency determines “the rule will not have a significant
economic impact on a substantial number of small entities that
are subject to the requirements of the rule.” Id. (emphasis
added). As the court noted, the Congress “did not intend to
require that every agency consider every indirect effect that any
27
regulation might have on small businesses in any stratum of the
national economy.” Id. at 343. In Mid-Tex, FERC was not
required to consider the indirect economic affects on the
wholesale customers of the utilities or on the ultimate retail
consumers, neither of which was regulated by the challenged
rule.
In Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855,
868-69 (D.C. Cir. 2001), our latest iteration of Mid-Tex,
environmental groups and industry representatives challenged
emission standards for hazardous waste combustors. The court
rejected a cement manufacturer’s argument that EPA incorrectly
confined its RFA analysis to the economic effects on the
hazardous waste combustion facilities, without considering the
effect on generators of hazardous waste like itself. The court
explained:
EPA’s rule regulates hazardous waste combustors, not
waste generators. We explained in Mid-Tex that the
language of the statute limits its application to the “small
entities which will be subject to the proposed
regulation”—that is, those “small entities to which the
proposed rule will apply.” Mid-Tex Elec. Coop., 773
F.2d at 342 (quoting 5 U.S.C. § 603(b)) (first emphasis
in Mid-Tex; second emphasis in original). Congress “did
not intend to require that every agency consider every
indirect effect that any regulation might have on small
businesses in any stratum of the national economy.” Id.
at 343.
255 F.3d at 869. The court further rejected the cement
manufacturer’s attempt to distinguish its situation “on the basis
that EPA actually intended to affect the conduct of hazardous
waste generators by raising the cost of incineration,” stating:
[A]pplication of the RFA does turn on whether particular
entities are the “targets” of a given rule. The statute
28
requires that the agency conduct the relevant analysis or
certify “no impact” for those small businesses that are
“subject to” the regulation, that is, those to which the
regulation “will apply.”
Id. (quoting (Mid-Tex, 773 F.2d at 342; 5 U.S.C. § 603(b)(3)).
Unlike the parties claiming economic injury in the cited
cases, contractors and subcontractors are directly affected and
therefore regulated by the challenged regulations. It may be true
that the regulations are immediately addressed to the employer
air carriers which are in fact the parties certified to operate
aircraft. See 14 C.F.R. pt. 121, app. I §§ I (B)-(C) (making
“employer” responsible party for ensuring drug program is
conducted properly), II (definition of “employer”); 14 C.F.R. pt.
121, app. J §§ I (B)-(C) (“employer” responsible for alcohol
testing program), I (D) (definition of employer). Nonetheless,
the regulations expressly require that the employees of
contractors and subcontractors be tested. See 14 C.F.R. pt. 121,
apps. I § III, J § II. Thus, the contractors and subcontractors (at
whatever tier) are entities “ ‘subject to the proposed
regulation’—that is, those ‘small entities to which the proposed
rule will apply.’ ” Cement Kiln, 255 F.3d at 869 (quoting Mid-
Tex, 773 F.2d at 342 (quoting 5 U.S.C. § 603(b))) (first
emphasis in Cement Kiln; second emphasis in original). In other
words, the 2006 Final Rule imposes responsibilities directly on
the contractors and subcontractors and they are therefore parties
affected by and regulated by it. The FAA acknowledged as
much when it advised:
If a contractor company has FAA-regulated testing
programs, it must ensure any individual performing a
safety-sensitive function by contract (including by
subcontract at any tier) below it is subject to testing. The
FAA recognizes there may be multiple tiers of
subcontractors in the aviation industry. Any lower tier
contractor company with FAA-regulated testing
29
programs will be held responsible for its own
compliance with the FAA drug and alcohol testing
regulations. Also, there may be circumstances where the
regulated employer and higher tier contractor
companies share responsibility for the lower tier
contractor company's noncompliance.
2006 Final Rule, 71 Fed Reg. at 1671-72 (emphases added). In
fact, the FAA had it right in the NPRM and SNPRM when it
determined that for the purpose of its RFA analysis the affected
small entities should be considered to be Part 145 repair stations
and their subcontractors. See 69 Fed. Reg. at 27,986. When the
FAA abruptly changed course in the 2006 Final Rule, it went off
course.
As a fall back, the FAA asserts that, in the event the court
concludes contractors and subcontractors are directly regulated
by the 2006 Final Rule, the FAA “substantially complied with”
the RFA because it conducted initial evaluations (for the
SNPRM) and a final economic evaluation of the effects on the
industry, responding to comments following the SNPRM. The
final evaluation, however, was not a “final regulatory flexibility
analysis” pursuant to the RFA as the FAA determined that
contractors and subcontractors are not regulated entities for the
purpose of the RFA. See 71 Fed. Reg. at 1673; JA 155. Further,
the RFA expressly requires that the final regulatory flexibility
analysis explain “why each one of the other significant
alternatives to the rule considered by the agency which affect the
impact on small entities was rejected.” 5 U.S.C. § 604(a)(5).
The evaluation on which the FAA relies, however, states
unequivocally: “[N]o alternatives were considered,” JA 100.
The RFA is a procedural statute setting out precise, specific
steps an agency must take. The FAA offers no authority to
support its “substantial compliance” theory and we are aware of
none. Accordingly we reject this argument as well.
30
For the foregoing reasons, we uphold the substance of the
FAA’s 2006 Final Rule and remand for the limited purpose of
conducting the analysis required under the Regulatory
Flexibility Act, treating the contractors and subcontractors as
regulated entities.10
So ordered.
10
In light of the public’s manifest interest in aviation safety, we
will not defer enforcement of the rule against small entities pending
the FAA’s Regulatory Flexibility Act analysis. See 5 U.S.C.
§ 611(a)(4)(B).
SENTELLE, Circuit Judge, dissenting: I respectfully dissent
from the majority’s holding that the Omnibus Transportation
Employee Testing Act authorizes the FAA to require drug and
alcohol testing of employees who perform the enumerated
functions “directly or by contract (including by subcontract at
any tier).” 2006 Final Rule, 71 Fed. Reg. 1666, 1676, 1677
(Jan. 10, 2006); see Maj. Op. at 7-15. I would therefore grant
the petitions and vacate the 2006 Final Rule.
As originally enacted in 1991, the Act provided that the
FAA “shall” require drug and alcohol testing of “airmen,
crewmembers, airport security screening contract personnel, and
other air carrier employees responsible for safety-sensitive
functions . . .” Pub. L. No. 102-143, tit. v, § 3, 105 Stat. 917,
953 (Oct. 28, 1991) (codified at 49 U.S.C. app. 1434; recodified,
as amended, at 49 U.S.C. § 45102(a)(1)). To find statutory
authority for the Rule, the FAA must argue that employees of
subcontractors “at any tier” are “air carrier employees” under
the Act. I think it is plain that they are not, and therefore cannot
join my colleagues in holding that the Act is ambiguous under
Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984).
The question is whether “Congress has directly spoken to
the precise question at issue.” Id. at 842. To my mind, the plain
language of the statute forecloses the interpretation urged by the
FAA. An employee is “[a] person who works in the service of
another person (the employer) under an express or implied
contract of hire, under which the employer has the right to
control the details of work performance.” BLACK’S LAW
DICTIONARY 543 (7th ed. 1999). This is not the only meaning
of the word, but “definitional possibilities” do not alone create
ambiguity. See California Indep. Sys. Operator Corp. v. FERC,
372 F.3d 395, 400 (D.C. Cir. 2004) (“CAISO”) (citing Brown v.
Gardner, 513 U.S. 115, 118 (1994)). Here, we need not canvass
all known uses of the word “employee” to know that an
2
employee of a subcontractor performing work for a contractor
which in turn has a contract with an air carrier is not, in an
ordinary sense, an “air carrier employee.” And the Final Rule
does not stop at that – it applies to employees of subcontractors
“at any tier.”
The majority argues that because the original Act
authorized testing of certain contractors’ employees (namely,
“airport security screening contract personnel”), the subsequent
phrase “and other air carrier employees” may be read to include
other contractors’ and subcontractors’ employees. See Maj. Op.
at 8-9. Because “employee” is not easily defined to encompass
an employee of an air carrier’s contractor’s subcontractor, this
is not a natural reading of the statute. Where “the text and
reasonable inferences from it give a clear answer against the
government . . . that . . . is ‘the end of the matter.’” CAISO, 372
F.3d at 401 (quoting Brown, 513 U.S. at 120). To the extent that
statutory context may fairly illuminate the reach of “air carrier
employee,” the reasonable inference from the phrase “airport
security screening contract personnel” is that where Congress
intended the Act to reach non-air carrier employees, it said so
explicitly.
The FAA supports its interpretation by asserting that
Congress gave it broad authority to prescribe regulations the
FAA “finds necessary for safety in air commerce” and to require
drug testing “[i]n the interest of aviation safety.” 49 U.S.C. §§
44701(a)(5); 45102(a)(1). No doubt the Final Rule is intended
to promote safety, but Congress’s mandate does not give the
FAA carte blanche to pursue that goal. See Michigan v. EPA,
268 F.3d 1075, 1084 (D.C. Cir. 2001). The FAA’s authority to
require drug testing is defined by statute, and in my view the
FAA has exceeded that statutory authority here.