Aug. 2, 2018
The FAA recently published a new settlement policy regarding first-time violators of certain drug and alcohol testing requirements. The new policy applies only to commercial pilots, and is purported to allow pilots to focus on treatment through the Human Intervention Motivation Study (drug and alcohol recovery assistance) rather than focusing on the FAA’s enforcement proceeding against the pilot.
The policy is effective Oct. 1, 2018.
A pilot may qualify for the new settlement policy if he or she:
- 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 having proscribed levels of alcohol or drugs.
To qualify for settlement under the new policy, a pilot must negotiate and sign a settlement agreement with the FAA within 10 days. The pilot also waives his or her right to appeal, and agrees to surrender his or her certificates and not to apply for a new certificate for at least one year.
“It’s hard to see the upside to this new settlement policy from the pilot’s prospective,” said Elizabeth Vasseur-Browne, an attorney at Cooling & Herbers P.C. “It is true that the FAA’s enforcement process can be quite lengthy, but so too can the HIMS process. To be eligible for this new program, among other things, the pilot must agree to a one year revocation of his or her certificates and waive the right to have the matter decided by an NTSB law judge, the Board or a court of competent jurisdiction. Indeed there could be a set of facts that may make this program attractive, such as when the pilot is confident the FAA can build an air tight case against him or her and he or she has the ability and resources to complete the HIMS in a year.
“Consider however, even if the pilot successfully completes the HIMS program, the FAA may or may not provide the pilot with a special issuance or a medical certificate that will get the pilot back flying,” she added.
Operators who face a drug or alcohol-related violation by refusing a drug test, receiving a positive test or another action, may find this settlement policy a viable option, but it’s not necessarily the right solution for every pilot or scenario. In general, a pilot facing an FAA violation should contact legal counsel for guidance before negotiating a settlement with the agency.