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)
Federal Aviation Administration
Federal Register Volume 83, Issue 139 (July 19, 2018)
| Page Range | 34040-34041 | |
| FR Document | 2018-15352 |
[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
![Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 34041
parts 61 and 67 immediately upon DEPARTMENT OF HOMELAND Mariners, and email. No objections were
receiving the fully executed settlement SECURITY submitted to the Coast Guard.
agreement. Vessels able to pass through the
(3) The emergency order of revocation Coast Guard bridge in the closed-to-navigation
will: (i) Require the immediate position may do so at any time. The
surrender of all certificates the pilot 33 CFR Part 117 bridge will be able to open for
holds that were issued under 14 CFR emergencies, and there is no immediate
parts 61 and 67 to enforcement counsel; [Docket No. USCG–2018–0676] alternate route for vessels to pass. The
(ii) notify the pilot that the failure to Coast Guard will inform the users of the
immediately surrender these certificates Drawbridge Operation Regulation; waterway, through our Local and
could subject the pilot to further legal Willamette River at Portland, OR Broadcast Notices to Mariners, of the
enforcement action, including a civil change in operating schedule for the
AGENCY: Coast Guard, DHS.
penalty; and (iii) inform the pilot that bridge so that vessel operators can
the FAA will not accept an application ACTION:Notice of deviation from arrange their transits to minimize any
for a new certificate issued under 14 drawbridge regulation. impact caused by the temporary
CFR part 61 for a period of a year from SUMMARY: The Coast Guard has issued a deviation.
the date of the issuance of the temporary deviation from the operating In accordance with 33 CFR 117.35(e),
emergency order of revocation. schedule that governs the Hawthorne the drawbridge must return to its regular
(4) The pilot will waive all appeal Bridge across the Willamette River, mile operating schedule immediately at the
rights from the emergency order of 13.1, at Portland, OR. The deviation is end of the effective period of this
revocation. necessary to accommodate a filming temporary deviation. This deviation
(5) The parties will agree to bear their event for a movie. This deviation from the operating regulations is
own costs and attorney fees, if any, in authorizes the bridge to remain in the authorized under 33 CFR 117.35.
connection with the matter. closed-to-navigation position. Dated: July 13, 2018.
(6) The pilot will agree to not initiate DATES: This deviation is effective from Steven M. Fischer,
any litigation before any court, tribunal, 6 p.m. on September 1, 2018, to 12:01 Bridge Administrator, Thirteenth Coast Guard
or administrative entity concerning any a.m. on September 2, 2018. District.
costs or attorney fees, including ADDRESSES: The docket for this [FR Doc. 2018–15434 Filed 7–18–18; 8:45 am]
applications under the Equal Access to deviation, USCG–2018–0676 is available BILLING CODE 9110–04–P
Justice Act, incurred as a result of the at http://www.regulations.gov. Type the
above-referenced matter. docket number in the ‘‘SEARCH’’ box
(7) The pilot will agree to waive any and click ‘‘SEARCH.’’ Click on Open DEPARTMENT OF HOMELAND
and all causes of action against the FAA Docket Folder on the line associated SECURITY
and its current and/or former officials with this deviation.
and employees relating to the above- Coast Guard
FOR FURTHER INFORMATION CONTACT: If
referenced matter.
you have questions on this temporary 33 CFR Part 165
This procedure is expected to allow deviation, call or email Mr. Steven
pilots who have established Fischer, Bridge Administrator, [Docket No. USCG–2018–0521]
qualifications to hold a new 14 CFR part Thirteenth Coast Guard District;
61 certificate, and have met the Safety Zone; Southern California
telephone 206–220–7282, email d13-pf-
requirements under 14 CFR part 67 for Annual Firework Events for the San
d13bridges@uscg.mil.
a special issuance consistent with Diego Captain of the Port Zone
SUPPLEMENTARY INFORMATION:
participation in the HIMS program, to
Multnomah County, the bridge owner, AGENCY: Coast Guard, DHS.
more quickly assume commercial flight
crewmember duties. Indeed, it should has requested a temporary deviation ACTION: Notice of enforcement of
allow pilots to apply for a new pilot from the operating schedule for the regulation.
certificate closer in time to a Hawthorne Bridge across the Willamette
River, mile 13.1, at Portland, OR. The SUMMARY: The Coast Guard will enforce
determination that the pilot is eligible a safety zone for the San Diego, CA
for a special issuance (following timely requested deviation is to accommodate
a filming event for a movie. To facilitate POPS Fireworks Display on the waters
evaluation, treatment, and continuing of San Diego Bay, CA on specific
comprehensive care in accordance with this event, the draw of the subject bridge
will be allowed to remain in the closed- evenings from June 28, 2018 to
the HIMS program). Further, the added September 2, 2018. This safety zone is
predictability of this process should to-navigation position, and need not
open to marine traffic from 6 p.m. on necessary to provide for the safety of the
allow pilots who have received a participants, spectators, official vessels
disqualifying DOT drug or alcohol test September 1, 2018, to 12:01 a.m. on
September 2, 2018. The Hawthorne of the events, and general users of the
result, refused to submit to a DOT test, waterway. Our regulation for the
or violated § 91.17(a)(1) through (4) to Bridge provides a vertical clearance of
49 feet in the closed-to-navigation Southern California Annual Firework
focus effort and energy on the treatment Events for the San Diego Captain of the
and recovery process, and allow both position referenced to the vertical
clearance above Columbia River Datum Port Zone identifies the regulated area
the pilot and FAA to better allocate for the events. During the enforcement
limited resources. 0.0. The normal operating schedule is in
sradovich on DSK3GMQ082PROD with RULES
33 CFR 117.897(c)(3)(v). Waterway period, no spectators shall anchor,
Issued in Washington, DC, on July 12, usage on this part of the Willamette block, loiter in, or impede the transit of
2018. River includes vessels ranging from official patrol vessels in the regulated
Naomi Tsuda, commercial tug and barge to small area without the approval of the Captain
Assistant Chief Counsel for Enforcement. pleasure craft. The Coast Guard of the Port, or designated representative.
[FR Doc. 2018–15352 Filed 7–18–18; 8:45 am] requested objections to this deviation DATES: The regulations in 33 CFR
BILLING CODE 4910–13–P from local mariners via the Local Notice 165.1123 will be enforced from 9:00
VerDate Sep<11>2014 16:04 Jul 18, 2018 Jkt 244001 PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 E:\FR\FM\19JYR1.SGM 19JYR1](https://thefederalregister.org/doc/83_FR_34179/page/2.svg)
Document Created: 2018-07-19 01:35:01
Document Modified: 2018-07-19 01:35:01
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Notification of enforcement policy. | |
| Dates | The enforcement policy is effective October 1, 2018. | |
| 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] | |
| FR Citation | 83 FR 34040 | |
| CFR Citation | 14
CFR
120 14 CFR 61 14 CFR 67 14 CFR 91 |
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