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Safety Recommendation Details

Safety Recommendation A-14-094
Details
Synopsis: The use of over-the-counter (OTC), prescription, and illicit drugs is increasing in the US population. The National Transportation Safety Board (NTSB) is concerned about the possible safety implications of increased drug use in all modes of transportation. Yet, in most modes of transportation, data about drug use by vehicle operators is limited to a small proportion of operators and a short list of drugs. Aviation is the one mode in which the regulatory authority, the Federal Aviation Administration (FAA), routinely conducts extensive postaccident toxicology testing on fatally injured pilots. This study used the results from this testing to assess drug use in aviation. By assessing evidence of fatally injured pilots’ drug use prior to flying and the associated potential for impairment, this study addressed a serious aviation safety issue and a growing transportation safety concern.
Recommendation: TO THE FEDERAL AVIATION ADMINISTRATION: Develop and distribute a clear policy regarding any marijuana use by airmen regardless of the type of flight operation.
Original recommendation transmittal letter: PDF
Overall Status: Closed - Unacceptable Action
Mode: Aviation
Location: United States
Is Reiterated: No
Is Hazmat: No
Is NPRM: No
Accident #: DCA14SS003
Accident Reports:
Report #: SS-14-01
Accident Date: 2/11/2014
Issue Date: 9/23/2014
Date Closed: 7/17/2018
Addressee(s) and Addressee Status: FAA (Closed - Unacceptable Action)
Keyword(s):

Safety Recommendation History
From: NTSB
To: FAA
Date: 7/17/2018
Response: Mr. Gottlieb wrote that you continue to believe that your actions to satisfy this recommendation are sufficient. He reiterated the existing federal laws and regulations regarding marijuana usage by pilots that existed before and during our study and which we cited when we issued this recommendation. Mr. Gottlieb again noted the aeromedical advisory that you published in the July/August 2017 edition of the FAA Safety Briefing magazine, which says that marijuana is an illicit drug per federal law and its use by airmen is prohibited. On October 26, 2017, we said that, although publishing the aeromedical advisory partially addressed Safety Recommendation A 14 94, it did not fully satisfy the recommendation because we believed it unlikely that pilots who are not subject to mandatory US Department of Transportation drug testing would be able to find the advisory or would read it. We said that to satisfy this recommendation, you needed to develop and issue an easy-to-find statement or guidance making clear that, although some states may legalize or decriminalize medical or recreational marijuana use, current federal laws and regulations prohibit pilots from using the drug for any reason. Mr. Gottlieb said that you believe that you have effectively addressed this safety recommendation and that you plan no further action. To evaluate if you have developed and issued the easy to find guidance we discussed in our October 26, 2017, letter, we visited the FAA web site (www.faa.gov) and entered “marijuana” in the search box on the home page. The first and second items returned addressed federal employees not being allowed to use marijuana, and a 1996 memorandum from the federal “drug czar” at the time discussing that, despite efforts in California and Arizona to legalize marijuana, its use by employees in safety-sensitive positions was still prohibited. Neither of these items address the issue in Safety Recommendation A-14-94. The third item we found was a link to the cover of the July/August 2017 edition of FAA Safety Briefing, which does not show anything about marijuana usage. The table of contents similarly does not contain references to marijuana usage. A page-by-page review brings the reader to Aeromedical Advisory, which is described in the table of contents as “a checkup on all things aeromedical.” The Aeromedical Advisory article is titled “Can You Fly While High?” and it contains the recommended guidance. Although the information in the Aeromedical Advisory article satisfies the recommendation, it is far too difficult to find, and we believe it unlikely that the target group for this guidance—recreational pilots who live in areas where marijuana is legal—will see it. Because you do not plan any further action to satisfy Safety Recommendation A 14 94, it is classified CLOSED--UNACCEPTABLE ACTION.

From: FAA
To: NTSB
Date: 5/13/2018
Response: -From Steven J. Gottlieb, Aviation Safety, Acting Executive Director, Office of Accident Investigation and Prevention: After further review of this recommendation, the FAA maintains that our actions are sufficient and reiterates that Federal law and Title 14, Code of Federal Regulations (14 CFR) adequately address this issue. The FAA has made it clear that illicit drug use by airmen is prohibited in accordance with 14 CFR § 9 l. l 7(a)(3), which states, "no person may act or attempt to act as a crewmember of a civil aircraft while using any drug that affects the person's faculties in any way contrary to safety." Additionally, 14 CFR § 61.15 outlines penalties that airmen would face if they are convicted of certain offenses involving alcohol or drugs. The FAA again notes that it published in the July/August 2017 edition of the FAA Safety Briefing magazine, an Aeromedical Advisory, which reiterates that marijuana is an illicit drug per Federal law and its use by airmen is prohibited. This advisory can be found at the following Web site: https://www.faa.gov/news/safety _ briefing/2017/media/Ju1Aug2017.pdf Based on the actions noted above, I believe that the FAA has effectively addressed these safety recommendations and we plan no further action.

From: NTSB
To: FAA
Date: 10/26/2017
Response: Although illicit drug use has historically been identified in only a small percentage of accident pilots, the results of our study indicated that marijuana use recently increased among fatally injured pilots. Our study also reviewed the current laws and regulations, which clearly prohibit marijuana use by anyone acting in a safety-sensitive position, and we said that the US Department of Transportation (DOT) issued statements clarifying that, despite recent legal changes, positive drug tests for marijuana among transportation operators subject to routine preemployment, random, and postaccident testing are not acceptable, even if the operator has a prescription. However, in our study, most pilots with toxicological evidence of marijuana use were not engaged in flight operations subject to DOT drug and alcohol testing requirements. We issued this recommendation because of our finding that there is a gap in the FAA’s policies regarding marijuana that may lead to confusion about the agency’s position on marijuana use by pilots who are not subject to mandatory DOT drug and alcohol testing requirements. Most of the actions described in your letter concern operators subject to mandatory DOT drug testing; the only action you took to address pilots who are not subject to DOT drug testing was publishing an aeromedical advisory in the July/August 2017 edition of FAA Safety Briefing reiterating that marijuana is an illicit drug per federal law, and that its use by pilots is prohibited. Although publishing the aeromedical advisory addresses Safety Recommendation A 14 94, it does not fully satisfy the recommendation because we believe it is unlikely that the pilots who are not subject to mandatory DOT drug testing would be able to find the advisory or read it. We continue to be concerned that these pilots may believe that the notices you discuss in your letter do not apply to them. Additionally, we fail to see how “developing further marijuana usage policy would be contrary to Federal drug laws and current FAA regulations prohibiting drug use by airmen and other employees who perform safety-sensitive functions.” To satisfy this recommendation, you must develop and issue an easy-to-find statement or guidance making clear that, although some states may legalize or decriminalize medical or recreational marijuana use, current federal laws and regulations prohibit pilots from using the drug for any reason, regardless of whether they are subject to DOT-required drug testing. Pending development and distribution of such a statement or guidance, Safety Recommendation A-14 94 remains classified OPEN--ACCEPTABLE RESPONSE.

From: FAA
To: NTSB
Date: 9/6/2017
Response: -From Michael P. Huerta, Administrator: The Federal Aviation Administration (FAA) conducted further review of this recommendation and believes that Federal law and FAA regulations adequately address this issue. Marijuana is currently classified as a Schedule I controlled substance by the U.S. Drug Enforcement Administration. Accordingly, State and local laws do not supersede this classification or provide any exceptions to marijuana use by airmen. The FAA has made it clear that drug use by ai1111en, whether recreationally or for medicinal purposes, is prohibited under Title 14, Code of Federal Regulations (14 CFR) 91. I 7(a)(3), which states that: “No person may act or attempt to act as a crewmember of a civ il aircraft-While using any drug that affects the person's faculties in any way contrary to safety.” According to 14 CFR 120.1 (a), airmen involved in air ca1Tiers and operators certificated under part 119 authorized to conduct operations under parts 121 or 135, as well as each operator conducting passenger carrying flights for hire as defined in 14 CFR 91 . 147, must be enrolled in an alcohol and drug testing program. In addition, under 14 CFR 61. l 5(b )(I) aim1en may be subject to various penalties impacting their ce11ificate, rating, or authorization, if convicted of certain offenses involving marijuana. Furthermore, under 14 CFR 120.105, each employee, including any assistant, helper, or individual in a training status, who performs a safety-sensitive function listed in this section directly or by contract (including by subcontract at any tier) for an employer as defined in this subpart must be subject to drug testing under a drug testing program implemented in accordance with this subpart. This includes full-time, part-time, temporary, and intermittent employees regardless of the degree of supervision. The safety-sensitive functions include: • Flight crewmember duties; • Flight attendant duties; • Flight instruction duties; • Aircraft dispatch duties; • Aircraft maintenance and preventative maintenance duties; • Ground security coordinator duties; • Aviation screening duties; • Air traffic control duties; and • Operations control duties. This drug testing program requirement is designed to help prevent accidents and injuries resulting from the use of prohibited drugs by employees who perform safety-sensitive functions in aviation and serves as a vital safeguard in ensuring a higher level of safety for passengers. In an effort to inform pilots and the general public of regulated drug testing, the U.S. Department of Transportation (DOT) recently issued notices, listed below, regarding recreational and medical marijuana usage by safety-sensitive transportation employees: https://www.transportation.gov/odapc/dot-recreational-marijuana-notice https://www.transportation.gov/odapc/medical-marijuana-notice The FAA also published an Aeromedical Advisory in its July/August 2017 edition of Safety Briefing, listed below, reiterating that marijuana is an illicit drug per Federal law, and its use by airmen is prohibited: http://www.faa.gov/news/safety_ briefing/20l 7/media/Ju1Aug20l 7.pdf In addition to the efforts by the DOT and FAA, the Aircraft Owners and Pilots Association published an article in 2014, listed below, regarding medical marijuana and its use being contrary to Federal law: https://pilot-protection-services.aopa.org/news/2014/july/03/medication-dos-and-donts The FAA believes that developing further marijuana usage policy would be contrary to Federal drug laws and current FAA regulations prohibiting drug use by airmen and other employees who perform safety-sensitive functions. Accordingly, developing and distributing a comprehensive policy would not be an effective use of FAA resources nor provide an added safety benefit. I believe that the FAA has effectively addressed this safety recommendation and consider our actions complete.

From: NTSB
To: FAA
Date: 2/3/2015
Response: We note that you are developing a comprehensive policy addressing the use of marijuana by airmen, and you requested that we provide additional information on our definitions of the terms airmen and marijuana usage. Your letter summarized existing FAA regulations and policies regarding marijuana use. Although we agree that the existing regulations and policies are clear and consistent, we issued this recommendation because many states and local governments are currently revising their laws concerning marijuna use, and we believe that neither pilots nor the public may be aware of current FAA regulations and policies. Your question regarding the definition of marijuana use underscores the need for clarification. We believe that an airman is any person who is a flightcrew member, but we also believe that your policy should include other personnel whose actions may affect the safety of flight, such as mechanics, dispatchers, and air traffic control personnel. We believe that your policy should discuss how current regulations and policies specifcally address physician prescribed, therapeutic marijuna use as well as recreational use of the drug. Pending development and distribution of such a policy, Safety Recommendation A-14-94 is classified OPEN—ACCEPTABLE RESPONSE.

From: FAA
To: NTSB
Date: 12/1/2014
Response: -From Michael P. Huerta, Administrator: The FAA intends to develop a comprehensive policy addressing the use of marijuana. However, to do so, the FAA would like to request additional information from the Board on its definitions of the terms airmen and marijuana use. The FAA notes that there are many types of airmen and many categories of marijuana use. We also note that there are current regulations and policies in place that pertain to the use of marijuana among ai1men. Section 91.17(a)(3) prohibits anyone from acting as a flight crewmember in a civil aircraft while using any drug that affects the person's faculties in any way contrary to safety. In addition, § 67.1 07(a)(4) specifically defines cannabis dependence as a disqualifying condition for medical certification as noted in § 67.1 07(b )(3). The regulations cited from part 67 apply to a FAA first-class medical certificate; however, the standard also applies to a person applying for any FAA medical certificate. Lastly, most pilots flying for hire (such as airline pilots), some mechanics and repairmen (such as those employed by air carriers), and all control tower operators are subject to random drug screening per various FAA policies.