FAA Civil Penalties for Drug Abatement Violations

  • ON Feb 26, 2021
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  • BY Anthony Ison
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  • IN Pilot Law

FAA civil penalties for drug abatement violations can put a big dent in a small company’s pocketbook. If you are an air carrier or other certificate holder which is required to conduct DOT drug and alcohol testing for “safety sensitive” employees, the FAA can levy civil penalties for violations of regulatory, testing requirements. Specifically, companies that conduct DOT drug and alcohol testing are required to comply with the requirements of 14 C.F.R. Part 120 and 49 C.F.R. Part 40 for their drug and alcohol testing programs.

As most employers probably know, the requirements of 14 C.F.R. Part 120 and 49 C.F.R. Part 40 are extensive and voluminous. Understandably, employers find it easier to engage the services of a third-party agent to manage the drug and alcohol testing needs of its employees, rather than manage the required testing themselves. Of critical importance, however, is that even if your company employs a third-party service agent, your company is still responsible for compliance with relevant testing regulations. Specifically, 49 C.F.R. §40.15(c) states that:

“You remain responsible for compliance with all applicable requirements of this part and other DOT drug and alcohol testing regulations, even when you use a service agent. If you violate this part or other DOT drug and alcohol testing regulations because a service agent has not provided services as our rules require, a DOT agency can subject you to sanctions. Your good faith use of a service agent is not a defense in an enforcement action initiated by a DOT agency in which your alleged noncompliance with this part or a DOT agency drug and alcohol regulation may have resulted from the service agent’s conduct.”

Therefore, if your service agent drops the ball and fails to properly subject an employee to proper DOT testing, the FAA can subject your company to a hefty civil penalty. 49 U.S.C. § 46301(a)(5) specifically identifies that a company can face a civil penalty not to exceed $13,066 for each violation of the Federal Aviation Regulations. The FAA has a history of pursuing such claims.

If you are facing FAA civil penalties for drug abatement violations, you have options for reconsideration and appeal. The FAA defense attorneys at The Ison Law Firm have experience defending FAA drug abatement violations and are standing by to assist with your case.

FAA is Unable to Establish Your Medical Eligibility

Did you receive a letter stating that the FAA is unable to establish your medical eligibility? This language is not particularly a cause for alarm. The FAA may conduct a reexamination of your eligibility to hold a medical certificate pursuant to 14 C.F.R. §67.413. This regulation authorizes the FAA’s Office of Aerospace Medicine to request additional medical information whenever the Administrator finds that such information is necessary to determine whether you meet the medical standards required to hold a medical certificate. In a “reexamination letter,” the FAA typically includes boilerplate language to state “we are unable to establish your eligibility to meet the medical standards prescribed in Title 14 of the Code of Federal Regulations (CFR), Part 67.”

Why would the FAA be unable to establish your medical eligibility? For the most part, if you report a medical condition that could lead to an aeromedically significant concern, the FAA will ask for medical records pertinent to that condition. Just because the FAA asks for records, however, doesn’t mean your medical application will be denied or revoked. For the most part, the FAA’s disposition of their review of your records will be dependent on what is in your records, how the records are presented, and whether the underlying condition is disqualifying (or if you are taking a disqualifying medication). It is always advisable to have a FAA medical attorney review your records prior to submission, and properly strategize as to what could be submitted to further support your eligibility.

What types of records should be submitted to the FAA? It depends. If the FAA’s request for records is not “necessary” pursuant to 14 C.F.R. §67.413, there may be an argument made to the FAA that such a request should be rescinded. On the other hand, there are some things, such as the FAA requesting a drug test within 48-hours, which is usually non-negotiable. Beyond that, if your records reveal a concern for other previously unreported issues, such as substance use, diabetes, criminal history, etc., or anything which may reveal that you have not provided accurate answers on your previous applications for medical certification, you may want to take action to supplement your submission. In other words, sometimes, it pays to give the FAA more than what they ask for, in order to explain or alleviate concerns which appear in your medical records.

If you have received a letter stating that the FAA is unable to establish your medical eligibility, you need to contact a FAA medical attorney. Having an FAA medical attorney assist you with your submission can allow you to maximize review of your records and strategize as to the best approach for obtaining your medical certificate. Your FAA medical attorneys at The Ison Law Firm are standing by to help you with your FAA medical eligibility.

Drone Operations Near Super Bowl LV

  • ON Feb 09, 2021
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  • BY Anthony Ison
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  • IN Drone Law

Drone Operations near the Super Bowl LV could lead to substantial fines from the FAA. Many novice and hobbyist Unmanned Aerial Systems (UAS) or “drone” operators may be in for a big shock if caught operating a drone in defiance of the FAA’s Temporary Flight Restriction (TFR) during the Super Bowl LV. On February 7, 2021, from 5:30 p.m. to 11:59 EST, the FAA will prohibit the use of drones within a 30-nautical-mile radius of the Raymond James Stadium in Tampa, Florida. The restriction will extend from surface level up to 18,000 feet. Additionally, drones are prohibited for a one (1) nautical mile radius around Raymond James Stadium on February 7 from 10:00 a.m. until the TFR for the game takes effect. Should an unlucky drone operator get caught operating a UAS in violation of the FAA’s TFR without permission, the FAA may seek civil penalties in excess of $30,000 and potential criminal prosecution. https://www.faa.gov/news/updates/?newsId=96540

Some basic math will help illustrate the breadth of the FAA’s TFR regarding the nautical mile restriction. For every 1 nautical mile there is 1.151 statute miles (what we commonly refer to while driving our cars). Thus, 30-nautical-miles equates to approximately 34.5234-statute-miles. So, drone operators in Clearwater, Brandon, Sarasota, Plant City, Tarpon Springs, Ruskin, New Port Richey, Zephyrhills, and parts of both Lakeland and Brooksville (to name just a few cities in the TFR zone), will certainly be impacted by the Super Bowl TFR, despite the fact that 30-nautical-miles will probably be far beyond the distance capabilities of most consumer drones.

As if the TFR for the February 7, 2021, Super Bowl was not restrictive enough, the FAA also established a TFR around the Raymond James vicinity leading up to the Super Bowl. Beginning January 29 to February 6, the FAA will restrict drone flights for roughly two (2) nautical miles around Julian B. Lane Riverfront Park and Curtis Hixon Waterfront Park up to an altitude of 2,000 feet.

Just imagine, living on the outer edge of the 30-nautical-mile radius from the Raymond James Stadium and flying your DJI Mavic, EXO Zino, or Aee AP9 during the Super Bowl, only to see the FBI and police approach you about, what would otherwise be, a harmless drone flight. As of February 6, 2021, the Hillsborough County Sheriff’s Office has responded nearly 70 drone intrusions into the No Fly Zones around Super Bowl Events. Law enforcement and the FAA claim that drones can be used as weapons or, when operated by pilots not certificated under Part 107 or exempted by 49 CFR 44809, cause injury to individuals on the ground. https://www.abcactionnews.com/sports/super-bowl/hcso-deputies-respond-to-nearly-70-drone-violations-around-super-bowl-events?_amp=true

Drone operations near Super Bowl LV may cost you more than the innocent fun you were expecting to have. If you received a Letter of Investigation or Notice of Proposed Civil Penalty due to an alleged violation of the FAA’s TFR regarding drone activity around Super Bowl LV, call the Pilot Lawyers at The Ison Law Firm to discuss your rights and legal options at 855-FAA-1215.


TSA Imposes Fines Against Travelers Without Masks

Did you know that the TSA imposes fines against travelers without masks? In the wake of the COVID-19 pandemic, the Transportation Security Administration (TSA) looks to curb the spread of the coronavirus by imposing fines against travelers for not wearing a mask while in the public transit domain. In addition to denying entry, boarding, or continued transport to a traveler, the TSA may seek to fine a mask-less traveler anywhere from $250.00 for a first-time offense, up to $1,500 for repeat offenses. In some instances, the TSA may even seek a fine in excess of $1,500 depending upon aggravating factors.

Travelers should expect to wear a mask at TSA airport screening checkpoints and throughout the commercial and public transportation systems (to include airports and while traveling as a passenger on an aircraft) between February 2, 2021, and May 11, 2021. According to the TSA, “the federal face mask requirement extends to the nation’s domestic network of airports; passengers and crewmembers flying aboard airplanes operated by domestic and foreign air carriers with inbound flights to U.S. ports of entry… Passengers without a mask may be denied entry, boarding, or continued transport. Failure to comply with the mask requirement can result in civil penalties.” https://www.tsa.gov/news/press/releases/2021/01/31/tsa-implement-executive-order-regarding-face-masks-airport-security

While this latest mask requirement is in response to President Biden’s January 21, 2021, Executive Order on Promoting COVID-19 Safety in Domestic and International Travel, there are certain exemptions that may apply based upon age, disability, and security. For example, travelers under the age of two (2), those with a disability who cannot wear a mask as defined by the Americans with Disabilities Act (ADA), or those for whom a mask would create a risk to workplace health, safety, or job duties are exempt from wearing a mask. Additionally, there may be times while at the airport where TSA will ask the traveler to momentarily remove a mask to confirm the traveler’s identity.

Masks must conform to applicable guidelines from the Centers for Disease Control and Prevention (CDC), to include covering the nose and mouth while fitting snugly against the sides without gaps. Acceptable masks may be either commercially produced or homemade; however, the masks should be a solid piece of material without slits, exhalations valves, or punctures. To that end, face shields and/or goggles are not acceptable substitutes for the use of a proper mask (although a traveler can still wear them in addition to wearing a mask).

If you have received a Notice of Proposed Civil Penalty from the TSA because of an alleged violation of the TSA’s new mask policy, call the attorneys at The Ison Law Firm at 855-FAA-1215 to discuss your legal rights and options.

FAA HIMS Step Down Protocol

  • ON Feb 04, 2021
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  • BY Anthony Ison
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  • IN Pilot Law

In August of 2020, the FAA introduced the HIMS step down protocol for airman who hold a medical certificate pursuant to a special issuance authorization for “substance dependence.” In theory, the step down protocol works two ways for airmen on a “substance dependence” special issuance. In some regards, the new protocol works to eliminate the frequency of a costly, HIMS psychiatric evaluation, time-consuming aftercare requirements, and other monitoring requirements, faster than would otherwise be required. However, on the other hand, the step down protocol extends the duration of a special issuance for the airman’s entire life as a medical certificate holder. While the monitoring that is required may not be too extensive following year 7 of the airman life, the step down protocol does, at least, still provide some level of FAA oversight.

What airmen should be aware of is that the time course of the HIMS step down protocol may be modified on a case-by-case basis. To that end, the specified reduction of requirements is discretionary by the HIMS AME. In essence, if an airman is not providing the HIMS AME with sufficient evidence of recovery within any given phase of the protocol, the HIMS AME may represent insufficient compliance to the Federal Air Surgeon’s office. So, while it may seem like the reduction of requirements throughout the protocol are hard-and-fast, they are not.

If you are an airman on a “substance dependence” special issuance, the HIMS step down protocol may be to your benefit. Be careful, however, because providing evidence of satisfactory recovery to your HIMS AME is paramount to avoiding going back to the beginning of the protocol or worse, having your special issuance withdrawn. If you have questions regarding the HIMS step down protocol, call your FAA medical attorney at The Ison Law Firm.

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