83 FR 34040 - Settlement Policy for Commercial Pilots in Drug and Alcohol Testing Cases

DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration

Federal Register Volume 83, Issue 139 (July 19, 2018)

The FAA is adopting a procedure for prompt settlement agreements between the FAA and commercial pilots who have: Received a verified positive result for a Department of Transportation (DOT)- required drug test; received a DOT-required alcohol test result of .04 or above alcohol concentration; refused to submit to a DOT-required drug or alcohol test in violation of FAA regulations; or acted or attempted to act as a crewmember of an aircraft in commercial operations in violation of specified FAA regulations under this policy that proscribe the use, being under the influence or affects, or while have proscribed levels of alcohol or drugs. The settlement agreement procedures in this notification are generally available to pilots who, but for the disqualifying DOT drug or alcohol test result, refusal to submit to a DOT test, or violation of the specified alcohol- and drug- related FAA regulations prohibiting acting or attempting to act as a crewmember, would be qualified for a pilot certificate and who are first-time violators of these drug or alcohol provisions.

[Federal Register Volume 83, Number 139 (Thursday, July 19, 2018)]
[Rules and Regulations]
[Pages 34040-34041]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-15352]



[[Page 34040]]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 61, 67, 91, and 120


Settlement Policy for Commercial Pilots in Drug and Alcohol 
Testing Cases

AGENCY: Federal Aviation Administration, DOT.

ACTION: Notification of enforcement policy.

-----------------------------------------------------------------------

SUMMARY: The FAA is adopting a procedure for prompt settlement 
agreements between the FAA and commercial pilots who have: Received a 
verified positive result for a Department of Transportation (DOT)-
required drug test; received a DOT-required alcohol test result of .04 
or above alcohol concentration; refused to submit to a DOT-required 
drug or alcohol test in violation of FAA regulations; or acted or 
attempted to act as a crewmember of an aircraft in commercial 
operations in violation of specified FAA regulations under this policy 
that proscribe the use, being under the influence or affects, or while 
have proscribed levels of alcohol or drugs. The settlement agreement 
procedures in this notification are generally available to pilots who, 
but for the disqualifying DOT drug or alcohol test result, refusal to 
submit to a DOT test, or violation of the specified alcohol- and drug-
related FAA regulations prohibiting acting or attempting to act as a 
crewmember, would be qualified for a pilot certificate and who are 
first-time violators of these drug or alcohol provisions.

DATES: The enforcement policy is effective October 1, 2018.

FOR FURTHER INFORMATION CONTACT: James Barry, Manager, Policy/Audit/
Evaluation, Enforcement Division, AGC-300, Federal Aviation 
Administration. 800 Independence Avenue SW, Washington, DC 20591; 
telephone (202) 267-8198; [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    A commercial pilot who receives a disqualifying DOT drug or alcohol 
test result, refuses a DOT drug or alcohol test, or violates Sec.  
91.17(a)(1) through (4) is subject to the revocation of airman 
certificates issued under 14 CFR part 61 and airman medical 
certificates issued under 14 CFR part 67. Under 14 CFR 61.13(d)(2), 
unless otherwise authorized by the Administrator, a person whose pilot, 
flight instructor, or ground instructor certificate has been revoked 
may not apply for any certificate, rating, or authorization for one 
year after the date the FAA issued the revocation order.
    Many commercial pilots who receive a disqualifying DOT drug or 
alcohol test result, refuse a DOT drug or alcohol test, or violate 
Sec.  91.17(a)(1) through (4) promptly enter into the Human 
Intervention Motivation Study (``HIMS'') program, which is a substance 
recovery program for such pilots.\1\ If a pilot undergoes evaluation, 
and successfully completes appropriate treatment and remains under 
comprehensive continuing care in accordance with the HIMS program, the 
pilot may become eligible for an authorization for special issuance of 
an airman medical certificate (``special issuance'') well before the 
completion of an FAA investigation into the matter, initiation of legal 
enforcement action based on the investigation, and passage of the time 
period specified in 14 CFR 61.13(d)(2).\2\
---------------------------------------------------------------------------

    \1\ A pilot is not permitted to fly commercially after receiving 
a disqualifying DOT drug or alcohol test result or having refused a 
DOT drug or alcohol test unless the pilot completes a substance 
abuse professional (SAP) evaluation and undergoes referral for 
education/treatment and return-to-duty testing. Further, under 14 
CFR 61.53(a), a pilot is prohibited from acting as a required flight 
crew member when he or she knows, or has reason to know, that he or 
she has a disqualifying medical condition, which includes substance 
abuse or dependence under 14 CFR part 67.
    \2\ Under 14 CFR 67.401(a), the Federal Air Surgeon has 
discretion to grant a special issuance to a pilot who does not meet 
the requirement for unrestricted airman medical certification if the 
airman can show to the satisfaction of the Federal Air Surgeon that 
the duties authorized by the class of medical certificate applied 
for can be performed without endangering public safety during the 
period in which the authorization would be in force.
---------------------------------------------------------------------------

    Indeed, following the discovery of a disqualifying DOT drug or 
alcohol test result, DOT drug or alcohol test refusal, or violation of 
14 CFR 91.17(a)(1) through (4), the FAA Office of Aerospace Medicine, 
Drug Abatement Division (``AAM-800'') investigates the apparent 
violation, which includes interviews and the collection of evidence, 
and develops an enforcement investigative report (``EIR''), which is 
subject to AAM-800 management review. If AAM-800 management deems the 
EIR sufficient, it transmits the EIR to the Office of the Chief 
Counsel's Enforcement Division (``AGC-300'') for additional review to 
ensure, among other things, evidentiary sufficiency and compliance with 
law and policy. Consistent with FAA policy, AGC-300 issues an order 
revoking pilot and airman medical certificates only after the thorough 
review necessary to ensure that legal enforcement action involving the 
revocation of certificates is appropriate. Although the FAA normally 
issues emergency orders of revocation for the types of drug or alcohol 
violations discussed in this notification, the FAA necessarily takes 
the appropriate amount of time to ensure that the issuance of the order 
is reasonable and supportable. Accordingly, the period of time between 
the FAA's discovery of a drug or alcohol violation and the issuance of 
a certificate action can be lengthy. Further, the additional time 
period specified in 14 CFR 61.13(d)(2) adds up to a year after the 
issuance of an order of revocation. During the period from the 
discovery of the violation to the expiration of the time period 
specified in 14 CFR 61.13(d)(2), a pilot may have long successfully 
completed recovery steps necessary to be found qualified for a special 
issuance.

Policy Statement

    Under the new prompt settlement procedure, the FAA will send 
notification to commercial pilots who receive a disqualifying DOT drug 
or alcohol test result, refuse a DOT drug or alcohol test, or violate 
Sec.  91.17(a)(1) through (4) in commercial operations. The 
notification will inform the pilot that he or she may contact AAM-800 
within ten days of receipt of the notice to request consideration for a 
prompt settlement of the legal enforcement action. The FAA will send 
the notification soon after it discovers the violation.
    If the pilot requests to be considered for the new settlement 
procedure, the FAA will determine whether the pilot is eligible for the 
process. The procedure is not available where there is a question about 
a pilot's qualification to hold a certificate other than that presented 
by the disqualifying DOT drug or alcohol test result, refusal to submit 
to a DOT test, or violation of Sec.  91.17(a)(1) through (4), or where 
the pilot is not a first-time violator of these drug or alcohol testing 
provisions. If the FAA deems application of the prompt settlement 
procedure is appropriate, AGC-300 enforcement counsel will provide the 
pilot, or his or her legal representative, a formal agreement that sets 
forth the conditions for prompt settlement. The terms of the settlement 
agreement will normally include the following provisions.
    (1) The settlement agreement must be executed by the parties within 
ten days after the FAA transmits the agreement to the pilot.
    (2) The FAA will issue an emergency order revoking all certificates 
the pilot holds that were issued under 14 CFR

[[Page 34041]]

parts 61 and 67 immediately upon receiving the fully executed 
settlement agreement.
    (3) The emergency order of revocation will: (i) Require the 
immediate surrender of all certificates the pilot holds that were 
issued under 14 CFR parts 61 and 67 to enforcement counsel; (ii) notify 
the pilot that the failure to immediately surrender these certificates 
could subject the pilot to further legal enforcement action, including 
a civil penalty; and (iii) inform the pilot that the FAA will not 
accept an application for a new certificate issued under 14 CFR part 61 
for a period of a year from the date of the issuance of the emergency 
order of revocation.
    (4) The pilot will waive all appeal rights from the emergency order 
of revocation.
    (5) The parties will agree to bear their own costs and attorney 
fees, if any, in connection with the matter.
    (6) The pilot will agree to not initiate any litigation before any 
court, tribunal, or administrative entity concerning any costs or 
attorney fees, including applications under the Equal Access to Justice 
Act, incurred as a result of the above-referenced matter.
    (7) The pilot will agree to waive any and all causes of action 
against the FAA and its current and/or former officials and employees 
relating to the above-referenced matter.
    This procedure is expected to allow pilots who have established 
qualifications to hold a new 14 CFR part 61 certificate, and have met 
the requirements under 14 CFR part 67 for a special issuance consistent 
with participation in the HIMS program, to more quickly assume 
commercial flight crewmember duties. Indeed, it should allow pilots to 
apply for a new pilot certificate closer in time to a determination 
that the pilot is eligible for a special issuance (following timely 
evaluation, treatment, and continuing comprehensive care in accordance 
with the HIMS program). Further, the added predictability of this 
process should allow pilots who have received a disqualifying DOT drug 
or alcohol test result, refused to submit to a DOT test, or violated 
Sec.  91.17(a)(1) through (4) to focus effort and energy on the 
treatment and recovery process, and allow both the pilot and FAA to 
better allocate limited resources.

    Issued in Washington, DC, on July 12, 2018.
Naomi Tsuda,
Assistant Chief Counsel for Enforcement.
[FR Doc. 2018-15352 Filed 7-18-18; 8:45 am]
 BILLING CODE 4910-13-P