In a Notice of Proposed Rulemaking issued today, the FAA is proposing to amend the regulations relating to disqualification for airman or medical certificates based upon alcohol use. Specifically, the FAA proposes to 1) amend the airman medical certification standards to disqualify an airman based on an alcohol test result of 0.04 or greater breath alcohol concentration (BAC) or a refusal to take a drug or alcohol test required by the Department of Transportation (DOT) or a DOT agency; 2) standardize the time period for reporting refusals and certain test results to the FAA, and to require employers to report pre-employment and return-to-duty test refusals; 3) amend the airman certification requirements to allow suspension or revocation of airman certificates for pre-employment and return-to-duty test refusals; and 4) amend the regulations to recognize current breath alcohol testing technology.
Although the .04 BAC limit has been used as an indicia of disqualification in the past, the proposed rule would make such a positive test conclusive proof of substance abuse and automatically disqualifying. Additionally, test refusals would also be considered conclusive proof of substance abuse. The tests included in this rule would also be expanded to include pre-employment and return-to-duty test refusals, rather than the existing tests administered prior to an employee engaging in safety-sensitive duties. The FAA argues that these revisions are consistent with NTSB cases that have held a single event of alcohol misuse can be considered substance abuse and disqualifying. It appears that the FAA has taken to heart NTSB Member Hersman’s concurring statement as discussed in my December 8, 2004 post.
The proposed rules appear to be restricted to tests administered pursuant to the mandatory drug and alcohol testing programs required of aviation employees in safety-sensitive positions (e.g. pilots, mechanics etc.) or administered by their employers in connection with pre-employment screening or return to duty testing. However, the proposed rules could affect a person subject to testing who holds an airman medical certificate for reasons unrelated to their safety-related job, such as a mechanic who also holds a pilot certificate.
The proposed rules are not a surprise. However, I don’t think the FAA will stop here. I believe it is just a matter of time before the FAA will propose further rules that will extend disqualification to any test revealing a BAC greater than .04 or any refusal to take a drug or alcohol test. Under such rules, an airman receiving his or her first DWI (in almost all states this would involve a BAC of .08 or greater) would automatically be disqualified from holding a certificate. The FAA appears to be rejecting the discretionary judgment it used to exercise in relation to alcohol use and medical qualification in favor of bright line tests for disqualification.
Comments to the proposed rule are due by March 14, 2005. If you would like to submit comments, they may be sent, identified by Docket Number 2004-19835, 1) electronically via http://dms.dot.gov or http://www.regulations.gov; 2) via U.S. Mail to Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-001; 3) via facsimile to 1-202-493-2251; or 4) via hand delivery to Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC.
For further information read the NPRM in its entirety or you may contact Sherry M. de Vries, Aeromedical Standards and Substance Abuse Branch, Medical Specialties Division, AAM-210, Office of Aerospace Medicine, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-8693.
For all of those individuals holding airman or medical certificates and who also enjoy a cocktail now and then, beware. It is imperative that you exercise good judgment when consuming any alcohol. If your judgment lapses, you could end up losing your certificates. Given these consequences, the decision to exercise good judgment should be an e
