Pilots who give sightseeing flights for compensation, whether through a company or individually, whether as a business or otherwise, may be required to establish and maintain a DOT-approved drug and alcohol testing program.
The FAA is currently engaged in an aggressive enforcement campaign to locate those who don't have the required program in place. They have been focusing their efforts on small organizations and individuals, and funneling the enforcement actions through the DOT's general counsel rather than through FAA attorneys. Flight instructors should take a moment to familiarize themselves with the regulations so they don't inadvertently find themselves facing a certificate action or civil penalty.
You may recall that old FAR 135.1 listed numerous activities that could be conducted for compensation but did not require a Part 135 certificate. These operations included pipeline patrol, crop dusting, flight instruction, and non-stop sightseeing flights that departed from and returned to the same airport and remained within a 25-statute-mile radius of that airport.
The new FAR 135.1 (which went into effect on January 19, 1996) doesn't contain that litany of activities. (These operations are now listed in FAR 119.1.) Instead, it lists the activities Part 135 does apply to. FAR 135.1(a)(5) says that Part 135 applies to "Nonstop sightseeing flights for compensation or hire that begin and end at the same airport, and are conducted within a 25 statute mile radius of that airport.?"
It goes on to say that while these flights fall under the umbrella of Part 135, they must only comply with FAR 135.249, 135.251, 135.253, 135.255, and 135.353. These sections are the meat and potatoes of the drug and alcohol program requirement, but they also refer to two appendices of Part 121, which contain additional requirements. In addition, FAR 135.1(c) says that the drug and alcohol program requirements apply to any person or entity that conducts the flights for compensation. Flights that contain a stop or are longer than 25 statute miles require a Part 135 certificate if they are conducted for compensation.
Referring to Appendix I of Part 121, FAR 135.251 requires that individuals performing a safety-sensitive function such as piloting, must be tested for drugs. FAR 135.255 requires the establishment of an "alcohol misuse prevention program," and further requires random alcohol testing while on the job. FAR 135.353 requires individuals to be trained on alcohol and drug testing requirements. Appendices I and J of Part 121 give detailed instructions on how to establish a testing program, when testing is required, what types of substances must be tested for, who must be tested, and how the testing is to be performed. Appendix I details the drug program requirements, while Appendix J relates to the alcohol misuse prevention program.
So what does this, mean in practical terms? As the regulations state, if you conduct any sightseeing flights for compensation, you must be tested under a DOT-approved drug and alcohol program. This may sound like an incredible burden for a fairly simple task. However, the FAA has provided some escape hatches (not loopholes).
The FAA has made it clear, although not in writing, that "occasional" providers of sightseeing flights will not suffer enforcement actions. "Occasional is defined (again, not in writing) as those who do not advertise their services to the public.
During the course of my representation of a sightseeing provider in a certificate action, I discussed with the FAA what it considers to be "advertising." The FAA told me it includes Yellow Page ads, flyers placed around the airport, newspaper or other advertisements, or even an "Airplane Rides" sign hung on an airplane at an air show. In fact, FAA inspectors have been canvassing air shows and open houses looking for sightseeing under the new program.
Flight schools, flying clubs, and FBOs that offer first-time flights to prospective students do not fall under the drug and alcohol testing program requirements because the FAA considers this to be flight instruction. Nor do renters of aircraft or flight instructors who take friends or strangers for a sightseeing flight for compensation.
If an individual goes to a flight school, flying club, or FBO and a flight over the area, and pays the pilot for the flight - this flight does not trigger the testing requirement because the FAA considers it "occasional." Flight instructors can provide sightseeing flights for compensation all day long - just as long as they don't advertise those flights.
Flight schools, flying clubs, or FBOs that do advertise sightseeing flights do fall under the rules. In a recent Designee Update, the FAA described the new program and instructed designated pilot examiners that the rules are being enforced. That created quite a stir, but the article only laid out the rules as they are written in the regulations, it did not give any interpretations of such things as "occasional" flights and what the FAA considers "advertising" to be.
Another semi-escape hatch exists for those who are already tested under another DOT-approved program. But this applies to the drug portion. An alcohol program must still be established.
The good news is that setting up a testing program is extremely easy and inexpensive. Medical partnerships exist that do all the work for you. You simply join, fill out some paperwork, watch the training videos, take an initial screening test, and wait for the partnership's computer to pick your number at random. You can find other groups on the Internet.
There is a little more to the random testing, however. You will have to name someone, a friend, spouse, or relative, as the Alcohol and Drug Program Manager (ADPM) to become familiar with the regulations, watch the training video, fill out some additional paperwork, and make sure all the program requirements are met. The partnership contacts the ADPM when its computer says a test is due, and the ADPM must see that the selected person takes the test at a local laboratory. When the lab issues the test results, the ADPM and the partnership keep them on file.
The procedure for random testing can get a little sticky because sightseeing flights often are not flown on a schedule. Thus it can be difficult to set a time for the random test, and the FAA has yet to figure out how to address this matter.
It will take the FAA some time to fine tune the new enforcement program, but make no mistake about it - the FAA wants everyone to be aware of the rules.
The FAA campaign is of an informative nature right now, but it is issuing Warning Letters, which remain in an offending operator's file for two years and are then expunged, to sightseeing operators who advertise heavily and don't have a testing program in place. Non-advertiser cases are dismissed immediately at the local level.
To make sure you're on the right side of the campaign, do take a look at the regulations. You may save someone from a violation someday.
Patti Arthur has a private law practice in Denver emphasizing aviation business, tax matters, enforcement actions, and regulatory compliance.
Related Articles
