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Safety Recommendation Details

Safety Recommendation A-07-043
Details
Synopsis: The National Transportation Safety Board has investigated a number of aircraft accidents in which the Federal Aviation Administration (FAA) had information to indicate, and was or should have been aware, that the pilot had a history of substance dependence, and in which the pilot’s substance dependence was relevant to the cause of the accident. As a result of such investigations, the Safety Board is recommending several changes in policy regarding the evaluation of airmen with a known or suspected history of substance dependence.
Recommendation: TO THE FEDERAL AVIATION ADMINISTRATION: Require that all airmen clinically diagnosed with substance dependence (including dependence on alcohol), as defined in 14 Code of Federal Regulations 67.107(a)(4)(ii), 67.207(a)(4)(ii), and 67.307(a)(4)(ii), who are medically certified by the FAA subsequent to such diagnosis, are followed under guidelines for special issuance of medical certificates for the period that they hold such certificates.
Original recommendation transmittal letter: PDF
Overall Status: Open - Acceptable Response
Mode: Aviation
Location: Bullhead City, AZ, United States
Is Reiterated: No
Is Hazmat: No
Is NPRM: No
Accident #: LAX06FA243
Accident Reports:
Report #: None
Accident Date: 7/23/2006
Issue Date: 6/25/2007
Date Closed:
Addressee(s) and Addressee Status: FAA (Open - Acceptable Response)
Keyword(s): Alcohol,Medical

Safety Recommendation History
From: NTSB
To: FAA
Date: 7/21/2016
Response: When we issued this recommendation in 2007, the current administrator referred it to the FAA’s Office of the Chief Counsel to determine whether a new policy could be written to require continuous special issuance medical certification for all airmen diagnosed with substance dependence, and whether such a change would require formal rulemaking. We have been concerned because it appeared that your chief counsel was unable to render an opinion and, as a result, the FAA had not taken any action to address this recommendation in the 9 years since it was issued. We note that your Office of Chief Counsel has now determined that the current language in CFR Part 67 prohibits granting a special-issuance medical certificate with lifetime duration for a substance dependence diagnosis, and we are pleased that you are preparing a notice of proposed rulemaking, with the approval of your rulemaking council, to change Part 67 to address this issue. We generally expect that the actions we recommend can be completed in 3 to 5 years, and this 9-year-old recommendation has been classified “Open—Unacceptable Response” because of its age and the lack of action taken to satisfy it. We were pleased to see that you have initiated the needed actions and, pending implementation of the needed revisions to Part 67, Safety Recommendation A-07-43 is classified OPEN—ACCEPTABLE RESPONSE.

From: FAA
To: NTSB
Date: 6/10/2016
Response: -From Michael P. Huerta, Administrator: Existing regulatory provisions under Title 14, Code of Federal Regulations Part 67, enable individuals with a known diagnosis of substance abuse or dependence ongoing beyond two years to receive an unrestricted medical ce1tificate. The FAA's Office of Chief Counsel has interpreted the current language of§§ 67.1 07(a)(4)(ii), 67.207(a)(4)(ii), and 67.307(a)(4)(ii) to be prohibitive of granting an authorization for special issuance of a medical certificate for a diagnosis of substance dependence with lifetime duration. In order to address this issue, the FAA is pursuing a notice of proposed rulemaking (NPRM) to change pa1t 67. On November 4, 2013, the FAA's Federal Air Surgeon approved an application for rulemaking titled "Removal of Specific 2-Year Abstinence Provisions from Medical Certification Standards." The purpose of this project is to remove the long-standing, problematic provisions in FAA medical certification standards that require specific two-year abstinence periods. After the two-year provision is removed from part 67, we will be able to legally grant an authorization for special issuance for a diagnosis of substance dependence with a lifetime or flying career long duration. The FAA's Rulemaking Council approved the application for rulemaking. I will keep the Board informed of the FAA's progress on this recommendation and provide an update by June 2017.

From: NTSB
To: FAA
Date: 11/2/2015
Response: In our letter issuing this recommendation, we discussed the legal issues associated with it. For airmen who do not meet the regulatory criteria for medical certification for any reason, including substance dependence, the FAA may permit certification under a time-limited authorization for special issuance (14 CFR 67.401). Before each such authorization or reauthorization, airmen must show evidence that the public is not endangered if the airman performs the duties permitted under the certificate. For every diagnosed, disqualifying chronic condition except substance dependence (for example, myocardial infarction, insulin-treated diabetes, coronary heart disease, and epilepsy), airmen must be followed under guidelines for special issuance for as long as they hold such certificates. In contrast with regulations governing all other disqualifying chronic diseases, current regulations permit an airman with a history or diagnosis of substance dependence to be certified without an authorization for special issuance. We issued this recommendation because, under such certification, an airman with a diagnosis of substance dependence might never receive additional medical followup from the FAA. The enactment of this standard was the result of the Ninth Circuit Court’s application of the Hughes Act to the FAA’s regulation regarding medical certification, Jensen v. FAA, 641 F.2d 797 (9th Cir. 1981); see also 47 Federal Register 16,303 (Apr. 15, 1982) (quoting the Hughes Act, which stated, “[n]o person may be denied or deprived of Federal, civilian or other employment or a Federal professional or other license or right solely on the grounds of prior alcohol abuse or prior alcoholism.”). In the our letter issuing this recommendation, we stated our belief that neither the Jensen opinion nor the Hughes Act precludes the enactment of revised medical certificate standards for airmen with a history of alcohol abuse; since Jensen, Congress has recodified the Hughes Act and omitted the provision referenced above. (See Alcohol and Drug Abuse Amendments of 1983, Public Law No. 98-24, 97 Stat. 175 [1983]; S. Rep. No. 98-29 [1983]). In your initial response on September 13, 2007, you said that the FAA’s Office of the Chief Counsel was determining whether (1) a new policy could be written to require continuous special issuance medical certification for all airmen with a diagnosis of substance dependence or (2) such a change would require formal rulemaking. Four years ago, in your November 16, 2011, letter, you indicated that your Chief Counsel had not yet made this determination. We ask that you inform us as to whether your Chief Counsel has made his determination and what further action you plan to take to address this recommendation. Pending our receipt of that information, Safety Recommendation A-07-43 will retain its current classification of OPEN—UNACCEPTABLE RESPONSE.

From: NTSB
To: FAA
Date: 1/27/2012
Response: On September 13, 2007, the FAA stated that its Office of the Chief Counsel was determining whether a new policy could be written to require continuous Special Issuance Medical Certification for all airmen with a diagnosis of substance dependence or if such a change would require formal rulemaking. In its current letter, more than 4 years later, the FAA indicated that its Chief Counsel has not yet made the determination. This is an unacceptable delay. Accordingly, pending the FAA’s taking the action, Safety Recommendation A-07-43 is classified OPEN—UNACCEPTABLE RESPONSE.

From: FAA
To: NTSB
Date: 11/16/2011
Response: -From J. Randolph Babbitt, Administrator: The FAA Office of Aerospace Medicine is still in consultation with the FANs Office of the Chief Counsel regarding the final legal interpretation as to whether we can require special issuance medical certification of these individuals for the entire duration of their medical certification period under the existing applicable regulations. However, we plan to have this issue resolved by December 31, 2011. I believe the FAA has effectively addressed safety recommendations A-07Al and -42, and I consider our actions on these recommendations complete. I will keep the Board informed of the FAA's progress on safety recommendation A-07-43 and provide an update by December 15, 2012.

From: NTSB
To: FAA
Date: 11/23/2010
Response: CC# 201000326/ NMC# 103469: On September 13, 2007, the FAA indicated that its General Counsel’s office was determining whether requiring continuous special issuance medical certification for all airmen diagnosed with substance dependence could be addressed through a policy change or would require formal rulemaking. On March 17, 2008, the NTSB classified Safety Recommendation A-07-43 OPEN -- ACCEPTABLE RESPONSE, pending the determination by the FAA’s General Counsel and timely FAA action to address the recommendation based on counsel’s determination. In the 3 years since the FAA’s previous letter, however, the FAA has not advised the NTSB of the determination or of the FAA’s planned actions.

From: NTSB
To: FAA
Date: 3/17/2008
Response: The FAA stated that it agrees with this recommendation, and the FAA’s Office of the Chief Counsel is determining whether new policy can be written to require continuous Special Issuance Medical Certification for all airmen with the diagnosis of substance dependence or such a change will require formal rulemaking. Pending the Chief Counsel’s rendering an opinion and the FAA’s taking timely action in response, Safety Recommendation A-07-43 is classified OPEN -- ACCEPTABLE RESPONSE.

From: FAA
To: NTSB
Date: 9/13/2007
Response: Letter Mail Controlled 9/25/2007 8:22:22 AM MC# 2070519: - From Marion C. Blakey, Administrator: FAA, 9/13/07 We agree with the intent of this recommendation. We are working with the FAA office of the Chief Counsel to determine if new policy can be written to require continuous Special Issuance Medical Certification for all airmen with the diagnosis of substance dependence, or if such a change will require formal rulemaking. We expect to have a further response to the Board within 120 days.